Anderson v. Timberlake

Filing 2

ORDER dismissing 1 Petition for Writ of Habeas Corpus without prejudice. Signed by Chief Judge Barbara B. Crabb on 12/11/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN

C H A R LES G. ANDERSON, P e ti ti o n e r , v. KA R EN TIMBERLAKE, Secretary, D epartm ent of Health Services, R espo nd ent. OR DER 0 9 - cv -7 4 2 - b b c

C harles G. Anderson, a person confined as a sexually violent person under W iscon sin's sexual predator statute, Wis. Stat. Ch. 980, has filed a document styled as a petition for a writ of habeas corpus. He has paid the five dollar filing fee. Petitioner is in custody at the Wisconsin Resource Center in Winnebago, Wisconsin. He seeks a temporary restrain in g order "requiring the state to cease and desist in their present policy of shuttling d etain ees back and forth" between a treatment facility for sex offenders in Mauston, W isconsin and the Wisconsin Resource Center, a correctional facility run by the D epartm ent of Corrections. In asking for relief by way of habeas corpus, petitioner has chosen the wrong p ro ced ure for challenging his placement at the Wisconsin Resource Center. Even assuming petitioner has facts that would state a constitutional claim, he cannot obtain a remedy throu gh habeas corpus because he is not trying to secure his release from confinement or to

shor ten the length of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 486-87 (1973). Instead, he is seeking a "different program or location or environment," which means that he "is challenging the conditions rather than the fact of his confinement and his remedy is under civil rights law." Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991). Just as an inm ate in segregation is not "in custody" for purposes of § 2254, petitioner is not in custody for § 2254 purposes by virtue of his placement at the Wisconsin Resource Center. T herefore, he cannot use habeas corpus to challenge the transfer. Falcon v. United States B ureau of Prisons, 52 F.3d 137, 139 (7th Cir. 1995) (habeas corpus cannot be used to challenge transfer between prisons). If plaintiff wishes to pursue his claim, he must file a civil action under 42 U.S.C. § 19 83 .

ORDER IT IS ORDERED that the petition of Charles Anderson for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE because habeas corpus is not the proper procedural vehicle for his claim. E n tered this 11t h day of December, 2009. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge 2