Opinion · Court of Appeals for the Seventh Circuit
Pischke v. Litscher
Pischke v. Litscher, 178 F.3d 497 (7th Cir. 1999)
- Type
- Opinion
- Court
- Court of Appeals for the Seventh Circuit
- Jurisdiction
- Federal
- Date
- 1999-05-21
- Topic
- general
How later courts describe this case
- recognizing that prisoners when thwarted from improperly disguising civil action as petition for habeas corpus may decide to drop claim rather than risk consequences associated with PLRA
- holding that habeas relief is restricted to claims for which the prisoner “is seeking to ‘get out’ of custody in some meaningful sense”
- holding that if a prisoner is challenging the conditions of his confinement, rather than the fact of confinement, then his remedy is under civil rights law
- noting that a quantum change in custody involves “seeking to ‘get out’ of custody in a meaningful sense”
- holding habeas corpus, not § 1983, is the appropriate vehicle “if the prisoner is seeking to ‘get out’ of custody in a meaningful sense.”
- discussing when habeas corpus is appropriate and whether a mislabeled action should be converted or dismissed
- noting the different procedural requirements and consequences of civil rights actions and habeas corpus statutes as reasons for refusing to convert action
- habeas corpus available only if challenged transfer from one prison to another is so much more restrictive as to amount to a quantum change in the level of custody
Citator
UpLaw has not yet analyzed Pischke v. Litscher. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 136 opinions
PISCHKE v. LITSCHER,178 F.3d 497(7th Cir. 1999)
Pischke, Petitioner-Appellant, v. Jon E. Litscher, Secretary of
the Wisconsin Department of Corrections, Respondent-Appellee.
Eddie Pettis, Petitioner-Appellant, v. Kenneth Sondalle,
Respondent-Appellee.
Randy Handeland, Petitioner-Appellant, v. Kenneth Sondalle,
Respondent-Appellee.
Mark D. Leslie, Petitioner-Appellant, v. Jon E. Litscher, Secretary
of the Wisconsin Department of Corrections, Respondent-Appellee.
Mark P. Neal, Petitioner, v. Kenneth Sondalle, Respondent.
Mark P. Neal, Petitioner-Appellant, v. Kenneth Sondalle,
Respondent-Appellee.
Nos. 98-4013, 99-1659, 99-1721, 99-1728, 99-1800, 99-1832
98-4148.
United States Court of Appeals, Seventh Circuit.
SUBMITTED APRIL 21, 1999
DECIDED MAY 21, 1999
Reconsideration Denied in Nos. 99-1800
and 99-1832 June 22, 1999.
Rehearing and Suggestion for Rehearing
En Banc Denied in Nos. 98-4013
and 98-4148 July 9, 1999.
Page 498
Appeal from the United States District Court for the Eastern District of Wisconsin, No. 99 C 154 — Rudolph T. Randa, Judge.
Appeal from the United States District Court for the Eastern District of Wisconsin, No. 99 C 135 — Myron L. Gordon, Judge.
Appeal from the United States District Court for the Western District of Wisconsin, No. 98 C 624 — Barbara B. Crabb, Judge.
On Motion for an Order Authorizing the District Court to Entertain a Second or Successive Petition for Collateral Review.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 99 C 255 — Myron L. Gordon, Judge.Page 499
Eddie Pettis (submitted), Fox Lake, WI, for Petitioner-Appellant Pettis.
Randy Handeland (submitted), Fox Lake, WI, for Petitioner-Appellant Handeland.
Mark D. Leslie (submitted), Sayre, OK, for Petitioner-Appellant Leslie.
Mark P. Neal (submitted), Fox Lake, WI, for Petitioner-Appellant Neal.
James E. Doyle, Office of the Attorney General, Wisconsin Department Of Justice, Madison, WI, for Respondent-Appellee in Nos. 98-4013, 98-4148, 99-1659, 99-1721, 99-1800 and 99-1832.
Stanley W. Davis, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee in No. 99-1728.
Before POSNER, Chief Judge, and COFFEY and EVANS, Circuit Judges.
[2] Wisconsin is a proper venue for the petitions,28 U.S.C. § 2241(d), and it is possible to seek habeas corpus with respect to a detention not yet commenced. Maleng v. Cook,
493
(1989); Nelson v. George,
(1970); Peyton v. Rowe,
(1968). The petitions had, nevertheless, to be dismissed, and certificates of appealability have to be denied, because habeas corpus cannot be used to challenge a transfer between prisons, Falcon v. United States Bureau of Prisons,52 F.3d 137,139(7th Cir. 1995); Graham v. Broglin,922 F.2d 379,381(7th Cir. 1991), unless the custody in which the transferred prisoner will find himself when transferred is so much more restrictive than his former custody that the transfer can fairly be said to have brought about what in Graham we called "a quantum change in the level of custody." Id. We illustrated with a prisoner seeking "the run of the prison in contrast to the approximation to solitary confinement that is disciplinary segregation." Id. Even in such a case, the prisoner is unlikely to have a good claim that he has been deprived of his liberty. Sandin v. Conner,
(1995). But that is a different question from whether the proper vehicle for presenting the claim is habeas corpus, which it is if but only if the prisoner is seeking to "get out" of custody in a meaningful sense. And that is not argued here. The challenge here is not toPage 500being in custody, but to the location in which one is in custody.
[3] These "petitions for habeas corpus" really then are challenges under42 U.S.C. § 1983to the conditions in which the inmates are being held or will be held in the private prisons to which they have been or will be transferred. Graham v. Broglin, supra,922 F.2d at 381-82; Falcon v. United States Bureau of Prisons, supra,52 F.3d at 139. People lawfully in custody still have constitutional rights which they can seek to vindicate by suits under section 1983 for damages or injunctive relief. But they must comply with the requirements of the Prison Litigation Reform Act, which differ in a number of respects (including filing fees) from the habeas corpus statute. Some of the district judges, though recognizing that these suits are really section 1983 suits, processed them as habeas corpus suits, the form in which the suits had been filed. The judges may have been influenced by our rulings that when a suit that should have been prosecuted under the habeas corpus statute is prosecuted as a civil rights suit instead, it should not be "converted" into a habeas corpus suit and decided on the merits. Moore v. Pemberton,110 F.3d 22(7th Cir. 1997) (per curiam); Copus v. City of Edgerton,96 F.3d 1038(7th Cir. 1996) (per curiam). It should simply be dismissed, leaving to the prisoner to decide whether to refile it as a petition for habeas corpus. The reasons are various, and include the fact that habeas corpus for state prisoners requires exhaustion of state remedies and that prisoners generally are limited to seeking federal habeas corpus only once. Conversion from habeas corpus to civil rights is somewhat less problematic, because section 1983 does not in general require exhaustion of state remedies. But dismissal of a 1983 suit will often count as a "strike" that may preclude future such suits (three strikes and you're out, in prisoner litigation as in baseball). Warned of this possibility, a prisoner might decide not to proceed under section 1983 after all, but instead to drop his claim.
[4] In light of these considerations, and without prejudice to revisiting the issue of conversion from habeas corpus to section 1983 in a case in which the issue is briefed, we shall affirm the orders of the district court as simple dismissals of these prisoners' habeas corpus applications. That will leave them free to refile their claims as civil rights suits under section 1983. But they would be foolish to do so. They will merely waste their money and earn a strike. The claims are thoroughly frivolous. TheThirteenthAmendment, which forbids involuntary servitude, has an express exception for persons imprisoned pursuant to conviction for crime. Nor are we pointed to or can think of any other provision of the Constitution that might be violated by the decision of a state to confine a convicted prisoner in a prison owned by a private firm rather than by a government. A number of cases assume the propriety of such confinements, Richardson v. McKnight, , 407 (1997); Spencer v. Lee,864 F.2d 1376,1378(7th Cir. 1989) (en banc); Street v. Corrections Corp. of America,102 F.3d 810,814(6th Cir. 1996); one judge has said the practice is constitutional, Pineaud v. County of Suffolk,52 F.3d 1139,1161-62(1995) (separate opinion); and to our knowledge no judge has opined to the contrary. The Wisconsin statute authorizing transfers to private prisons requires those prisons to adhere to "the same standards of reasonable and humane care as the prisoners would receive in an appropriate Wisconsin institution," Wis. Stat. Ann. §301.21(2m)(a)(7), and no evidence has been presented that this requirement is being or will be flouted, let alone that the private prisons will fall below federal (EighthAmendment) standards for the treatment of prisoners. A prisoner has a legally protected interest in the conduct of his keeper, but not in the keeper's identity. See Olim v. Wakinekona, Page 501(1983). Let Wisconsin prisoners have no doubt of the complete lack of merit of theirThirteenthAmendment claims.
[5] The applications for certificates of appealability, for leave to proceed in forma pauperis, and for leave to file a third petition challenging the legality of the transfers are all
[6] Denied.