Walker v. Clements

Filing 4

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 4/15/2015. Action DISMISSED without prejudice to Walker pursuing his claims in a properly filed Bivens action. The Court declines to issue a certificate of appealability. (cc: all counsel, via mail to Benjamin Walker)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BENJAMIN WALKER,
Petitioner,
-vs-

Case No. 15-C-290

MARC CLEMENTS,
Warden, Dodge Correctional Institution,
Respondent.

DECISION AND ORDER
Pro se Benjamin Walker (“Walker”) has filed an action pursuant to
28 U.S.C. § 2241 alleging that this Court violated his right to due process
by depriving him of the right to respond to the Respondent’s motion in
Walker v. Gehring, Case No. 14-C-645 (E.D. Wis.), for leave to transfer
Walker from the Outagamie County Jail to Dodge Correctional Institution
(“DCI”). Walker’s claim is based on the fact that the motion to transfer was
granted the same day it was filed.
This matter is now before the Court for preliminary review of the
petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in
United States District Courts. Rule 4 provides that upon preliminary
consideration by the district court judge, “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to

relief in the district court, the judge must dismiss the petition and direct
the clerk to notify the petitioner.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus cases, such as those
under 28 U.S.C. § 2241. See also Civ. L.R. 9(a)(2) (E.D. Wis.).
A petition for a writ of habeas corpus is the proper vehicle for a
prisoner’s claims if the prisoner is challenging the fact or duration of his
confinement, and seeking an immediate or speedier release. Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973); Falcon v. U.S. Bureau of Prisons, 52
F.3d 137, 138 (7th Cir. 1995) (“Typically the writ of habeas corpus is used
to completely free an inmate from unlawful custody.”) Stated somewhat
differently, if the prisoner is not seeking release, or release is not available
as a remedy to the prisoner’s claims, then “his challenge can only concern
the conditions of his confinement . . . not the fact of his confinement. As
such, he may not proceed with a habeas petition.” Glaus v. Anderson, 408
F.3d 382, 388 (7th Cir. 2005). See also, Moran v. Sondalle, 218 F.3d 647,
651 (7th Cir. 2000); Pischke v. Litscher, 178 F.3d 497, 499 (7th Cir. 1999).
Walker’s claim is more similar to those raised by a federal prisoner in an
action brought pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).
In the past, district courts construed a mistakenly-labeled habeas
-2-

corpus petition as a civil rights complaint. See, e.g., Graham v. Broglin, 922
F.2d 379, 381-82 (7th Cir. 1991). However, the Court of Appeals for the
Seventh Circuit has indicated that district courts should not engage in
such practice. Bunn v. Conley, 309 F.3d 1002, 1007 (7th Cir. 2002); Moore
v. Pemberton, 110 F.3d 22, 24 (7th Cir. 1997). This is particularly true
where conversion of this case may lead to unfavorable consequences for
Walker under the Prison Litigation Reform Act, 28 U.S.C. § 1915. See
generally Bunn, 309 F.3d at 1004-07. These consequences include whether
Walker has named the correct defendant and whether he is able to pay the
current $400 fee for the action (a $350 filing fee plus a $50 administrative
fee), as opposed to the fee for a petition for writ of habeas corpus (presently
$5.00). For these reasons, the Court will not re-characterize the instant
habeas petition as a complaint brought pursuant to Bivens, and it offers no
opinion regarding the merits of any such claim. Based on the foregoing,
this habeas corpus action is dismissed without prejudice to Walker
pursuing his claims in a properly filed Bivens action.
The Court also declines to issue a certificate of appealability under
Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts because no reasonable jurist would disagree with this
Court’s procedural ruling. Davis v. Borgen, 349 F.3d 1027, 1028 (7th Cir.
-3-

2003) (setting forth requirements for a certificate of appealability); see also
Evans v. Circuit Court of Cook Cty., Ill., 569 F.3d 665, 666 (7th Cir. 2009)
(certificate of appealability is required for appeal from denial of habeas
corpus petition brought under 28 U.S.C. § 2241 when the custody is the
result of a state court order).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
This habeas corpus action is DISMISSED without prejudice to
Walker pursuing his claims in a properly filed Bivens action
The Court DECLINES TO ISSUE a certificate of appealability; and
The Clerk of Court is DIRECTED to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 15th day of April, 2014.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

-4-