Moran v. Sondalle

Decision Date22 June 2000
Docket NumberNo. 00-1190,No. 00-1206,N,No. 00-1220,00-1190,00-1206,00-1220
Citation218 F.3d 647
Parties(7th Cir. 2000) Mark Moran, Petitioner-Appellant, v. Kenneth Sondalle, Respondent-Appellee. Daniel L. Johnson, Petitioner-Appellant, v. Kenneth Sondalle, Respondent-Appellee. Robert R. Paulk, Petitioner-Appellant, v. Kenneth Sondalle, Respondent-Appellee. Terry Paul, Petitioner-Appellant, v. Kenneth Sondalle, Respondent-Appellee. Michael Spiess, Petitioner-Appellant, v. Kenneth Sondalle, Respondent-Appellee. o. 00-1250,o. 00-1291,
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 99-C-1446--Myron L. Gordon, Judge.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 00-C-109--Myron L. Gordon, Judge.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 99-C-1445--Lynn Adelman, Judge.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 00-C-69--Lynn Adelman, Judge.

Appeal from the United States District Court for the Western District of Wisconsin. No. 99-C-0822-S--John C. Shabaz, Chief Judge.

Before Posner, Chief Judge, and Easterbrook and Diane P. Wood, Circuit Judges.

PER CURIAM.

We have consolidated five cases in which prisoners required to litigate under 42 U.S.C. sec.1983 instead sought writs of habeas corpus. The Prison Litigation Reform Act, which applies to prisoners' civil suits, imposes require- ments different from those of the Antite- rrorism and Effective Death Penalty Act, which governs collateral attacks on con- finement, making it important to classify cases correctly. See, e.g., Pischke v. Litscher, 178 F.3d 497 (7th Cir. 1999); Valona v. United States, 138 F.3d 693 (7th Cir. 1998); Moore v. Pemberton, 110 F.3d 22 (7th Cir. 1997); Copus v. Edgert- on, 96 F.3d 1038 (7th Cir. 1996). Prison- ers may be tempted to choose one route rather than another to avoid limitations Congress adopted. For example, the filing fee for an action seeking a writ of habe- as corpus is $5, while the fee to com- mence a case under sec.1983 is $150, see 28 U.S.C. sec.1914(a), and the fee in a sec.1983 case eventually will be collect- ed from the prisoner's trust account under 28 U.S.C. sec.1915(b) even if the prisoner cannot pay in advance. Frivolous actions count as "strikes" under sec.191- 5(g), and a prisoner who has accumulated three strikes must as a rule prepay the fees in all future civil actions, while collateral attacks are not subject to limitation because of prior frivolous suits.

Four of the petitions, filed by Mark Moran, Daniel Johnson, Robert Paulk, and Terry Paul, contend that Wisconsin vio- lated multiple provisions of the Consti- tution by transferring inmates to pri- vately run prisons in other states. The fifth, filed by Michael Spiess, alleges that Wisconsin failed to use constitu- tionally required procedures before deny- ing an application for release on parole. All five prisoners claimed that relief is proper under 28 U.S.C. sec.2241. In the first four cases the district court, citing Pischke, held that such claims must be pursued as civil suits under sec.1983. In each case the district court dismissed the petition (without prejudice to refiling under sec.1983), declined to issue a certificate of appealability, see 28 U.S.C. sec.2253(c)(1)(A), and permit- ted the appeal to proceed in forma paupe- ris. In each case, despite ruling that the action was frivolous, the district court declined to certify that an appeal would not be in good faith under 28 U.S.- C. sec.1915(a)(3). The district judges stated that the prisoners were "earnest" and thus proceeding in good faith. In the fifth case the district court did not reach the merits, ruling that Spiess had failed to exhaust his state remedies. See 28 U.S.C. sec.2254(b)(1)(A). The court declined to issue a certificate of ap- pealability and certified that the appeal is in bad faith, so that all appellate fees must be prepaid. Despite Newlin v. Helman, 123 F.3d 429, 437-38 (7th Cir. 1997), which holds that a collateral attack on a prison administrator's deci- sion is a "civil action" for purposes of the plra, in none of the five cases did the district court attempt to collect filing fees from the prisoner's trust account under 28 U.S.C. sec.1915(b).

Moran, Johnson, Paulk, and Paul ask us to issue certificates of appealability so that they may proceed on appeal. Spiess wants both a certificate of appealability and an order permitting him to proceed in forma pauperis. Two opinions released after the decisions under review affect these requests.

Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000), holds that an appeal in a frivo- lous suit cannot be "in good faith" under sec.1915(a)(3), because "good faith" must be viewed objectively. Because the dis- trict judges believed all five suits to be frivolous, all five appeals should have been certified as not in good faith, and prepayment of all appellate fees should have been required.

Part II.B of Walker v. O'Brien, No. 96- 4010 (7th Cir. June 22, 2000), issued contemporaneously with this opinion, holds that state prisoners who desire to protest actions by prison administrators, and who are entitled to collateral review (an important qualification), must meet conditions laid down by sec.2254. Part III of Walker holds that no petition for a writ of habeas corpus is a "civil ac- tion" for purposes of sec.1915(b), over- ruling Part III of Newlin. The fee-col- lection mechanism of the plra therefore does not apply to any of these cases. (For the same reason, sec.1915(g) would not preclude a court from excusing the prepayment of the filing fees in the district court and the court of appeals in a case properly filed as a collateral attack.) Finally, Part IV of Walker holds that state prisoners require certificates of appealability only when they contest their convictions or sentences; prisoners who contest prison discipline (for exam- ple, the deprivation of good-time cred- its) may appeal without them. Thus none of our five appellants requires a certif- icate of appealability.

This procedural victory gets them no further, however, because none of these five cases is a proper collateral attack. Pischke holds that state prisoners who want to challenge transfers to out-of- state prisons must use sec.1983. Moran, Johnson, Paulk, and Paul contend that they have new arguments, but none of these undercuts Pischke. Prisoners who want to be confined in one state rather than another are not demanding immediate (or earlier) release and therefore must use sec.1983; they are not entitled to seek collateral relief under either sec.- 2241 or sec.2254. Spiess, who wants to challenge the procedures used for parole- release decisions, does not even attempt to argue that he has new arguments that would avoid this circuit's cases requir- ing such arguments to be presented under sec.1983. See, e.g., Clark v. Thompson, 960 F.2d 663 (7th Cir. 1992); Huggins v. Isenbarger, 798 F.2d 203 (7th Cir. 1986).

For most purposes, the line between the domain of collateral review and that of sec.1983 is simple. State prisoners who want to challenge their convictions, their sentences, or administrative orders revoking good-time credits or equivalent sentence-shortening devices, must seek habeas corpus, because they contest the fact or duration of custody. See, e.g., Preiser v. Rodriguez, 411 U.S. 475 (1973- ); Edwards v. Balisok, 520 U.S. 641 (199- 7). State prisoners who want to raise a constitutional challenge to any other decision, such as transfer to a new pris- on, administrative segregation, exclusion from prison programs, or suspension of privileges, must instead employ sec.1983 or another statute authorizing damages or injunctions--when the decision may be challenged at all, which under Sandin v. Conner, 515 U.S. 472 (1995), and Meachum v. Fano, 427 U.S. 215 (1976), will be uncommon. See also Wallace v. Robinson, 940 F.2d 243 (7th Cir. 1991) (en banc); Higgason v. Farley, 83 F.3d 807 (7th Cir. 1996). Legal rules, like physical surfac- es, cause diffraction at the edges, see Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991); Thurman v. Gramley, 97 F.3d 185, 187 (7th Cir. 1996), but the excep- tions (like the scattering of light) may be ignored for most practical purposes. Prisoners who follow the rule stated in this paragraph rarely will go wrong; those who ignore it rarely will go right. Our five appellants ignored this line of demarcation.

The district judges resisted the tempta- tion to "convert" the prisoners' actions into sec.1983 suits because, as we ob- served in Pischke and its predecessors, actions under the plra and the aedpa have different procedural requirements and different potential consequences. All four suits concerning transfers were dismissed outright, and properly so. All four judgments are...

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