Gibson v. Puckett

• Decision Date: 14 February 2000
• Docket Number: No. 99-C-1294.,99-C-1294.
• Citation: Gibson v. Puckett, 82 F.Supp.2d 992 (E.D. Wis. 2000)
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Sanford GIBSON, Petitioner, v. Steven PUCKETT, Program Review Offender Classification Chief, Wisconsin Department of Corrections, Respondent.

82 F.Supp.2d 992

Sanford GIBSON, Petitioner, v.Steven PUCKETT, Program Review Offender Classification Chief, Wisconsin Department of Corrections, Respondent.

No. 99-C-1294.

United States District Court, E.D. Wisconsin.

February 14, 2000.

Sanford Gibson, pro se.

Mary Burke, Ass't Atty. General, for Respondent.

DECISION AND ORDER

ADELMAN, District Judge.

In this habeas corpus action, petitioner Gibson, a Wisconsin state prisoner, seeks an order that would prohibit the Wisconsin Department of Corrections from transferring him to an out-of-state privately owned correctional facility.A program review committee recommended Gibson for transfer pursuant to Wis. Stat. Ann. § 301.21(2m)(a)(West 1999).Gibson unsuccessfully appealed this decision through prison administrative procedures, contending that he suffers from a disability under the Americans with Disabilities Act("ADA"), 42 U.S.C. §§ 12101-12213, and that none of the private facilities to which he might be transferred are ADA compliant.In an order dated December 16, 1999, I observed that the ADA does protect state prisoners, seePennsylvania Dept. of Corrections v. Yeskey,524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215(1998), but denied Gibson's petition and summarily dismissed the case as an improper habeas action.Gibson filed a timely motion to reconsider pursuant to Fed. R.Civ.P. 59(e), which I now address.

I.RECONSIDERATION

A habeas petition should be dismissed if it appears plain that the petitioner is not entitled to relief.SeeRule 4, Rules Governing § 2254Cases.In reviewing a petition under this standard, the court must accept as true the petitioner's allegations, seeHospital Bldg. Co. v. Trustees of Rex Hosp.,425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338(1976), and construe the pleading in the light most favorable to the petitioner and resolve all doubts in the petitioner's favor, seeJenkins v. McKeithen,395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404(1969).

In my December 16, 1999 order, I noted that this was Gibson's second habeas petition challenging a transfer order or recommendation, and observed that to the extent that it challenged the same order or recommendation, it would be barred under the "second or successive" petition doctrine of 28 U.S.C. § 2244(b)(1).Gibson contends that the current transfer recommendation is wholly separate from the earlier one.(Gibson Rule 59(e) Br. at 1-2.)Accepting this allegation as true, as I must at this stage of proceedings, that is enough for now.

I dismissed this case under Pischke v. Litscher,178 F.3d 497(7th Cir.1999), which held that cases challenging the transfer of Wisconsin prisoners to out-of-state facilities pursuant to Wis. Stat. Ann. § 301.21(2m)(a) must be brought under 42 U.S.C. § 1983 rather than as habeas petitions, because they challenge the conditions (or more precisely, location) of confinement rather than seek a "quantum change" in the level of confinement.

Gibson relies upon Edwards v. Balisok,520 U.S. 641, 648, 117 S.Ct. 1584, 1589, 137 L.Ed.2d 906(1997), which held that a prisoner may not use a § 1983 action to challenge alleged due process violations which occurred in a prison disciplinary hearing that led to the prisoner's losing good-time credits, even if the § 1983 action did not seek the restoration of the good-time credits, because the allegations necessarily implied that the loss of the good-time credits was invalid.Edwards drew upon the principle of Heck v. Humphrey,512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383(1994), which found that any § 1983 action whose allegations necessarily implied that a conviction or sentence was invalid could not be brought unless the conviction or sentence had previously been successfully challenged in a manner favorable to the plaintiff.If no such challenge had been brought and the conviction or sentence remained in place, the § 1983 suit would have to be dismissed, and its claims could be brought only as a habeas action.

Edwards is inapplicable here.The Supreme Court held in Preiser v. Rodriguez,411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439(1973), cited inEdwards,520 U.S. at 643, 117 S.Ct. 1584, that challenges to the loss of good-time credit must be brought as habeas challenges because they affect the length of confinement.By contrast, "a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody."Preiser,411 U.S. at 499, 93 S.Ct. 1827.Unlike the § 1983plaintiffs in Edwards and Preiser who were told that their only remedy was a habeas action, Gibson is challenging neither the fact nor the length of his custody, nor raising any allegations which necessarily imply that the fact or length of his custody is invalid.He is instead challenging the restrictive nature of the conditions to which he may be exposed if he is transferred.If Gibson prevails, it would not imply the invalidity of a decision that delayed his eventual release.The rationale of Edwards, Heck, and Preiser, requiring such claims to be brought in habeas actions, thus does not apply.There is no bar to Gibson's raising his current claim in a § 1983 action.

Gibson next alleges that he has been selected for transfer as a punishment, presumably without benefit of due process (although punishment for what he does not say).(Gibson Rule 59(e) Br. at 4.)Gibson thus implies that the allegedly punitive nature of the decision allows his claim to be heard as a habeas action.But not all orders to which prisoners object — pertinently, including at least some transfer orders — require due process safeguards.SeeMeachum v. Fano,427 U.S. 215, 224-25, 96 S.Ct. 2532, 49 L.Ed.2d 451(1976).And even if a particular prison action is imposed upon a prisoner as punishment, rather than for administrative reasons, the prisoner's objections should be raised in a § 1983 action if they challenge the conditions of confinement.This is seen in the cases that Gibson himself relies upon — both brought as § 1983 actions — to support the proposition that Eighth Amendment claims are inherently "punishment" claims, Coleman v. Wilson,912 F.Supp. 1282(E.D.Cal.1995), and that medical care claims arise under the Eighth Amendment, Hare v. City of Corinth,74 F.3d 633(5th Cir.1996)(en banc).Thus, even accepting as true Gibson's allegations that he was recommended for transfer as a punishment without due process, his claim could properly be brought as a § 1983 action(or for that matter as an ADA action).

Nonetheless, upon reconsideration I believe that Gibson's allegations, accepted as true, may be enough to allow this case to survive as a habeas action.The relevant standard is that "habeas corpus can be used to get from a more to a less restrictive custody."McCollum v. Miller,695 F.2d 1044, 1046(7th Cir.1982).To the objection that Gibson (so far as appears from the papers before me) is not yet in the more restrictive custody to which he objects, while habeas is available only to state prisoners "in custody,"28 U.S.C. § 2254(a), I observe that habeas actions may be brought to challenge custody which has not yet begun.SeeMaleng v. Cook,490 U.S. 488, 493, 109 S.Ct. 1923, 104 L.Ed.2d 540(1989);Nelson v. George,399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578(1970).Gibson therefore need not wait until he has actually been transferred to bring a habeas action.

The heart of Gibson's case is his allegation that he suffers from congenital spina bifada, and that none of the private facilities to which he might be transferred can accommodate his disability.(Pet.¶ 5.)Specifically, he alleges, these facilities cannot accommodate his disability in the areas of toilet facilities, work assignments, or recreational facilities (including a library, which must be made available under Bounds v. Smith,430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72(1977), if there is not adequate assistance from persons trained in the law).(Pet.¶ 5.)What Gibson challenges is thus being thrust from a prison environment in which his disabilities are accommodated to one in which they are not.I therefore observe that, so far as can be discerned at this early stage, this case will not at all hinge upon the fact that Gibson has been recommended for transfer out of state, or to a private facility— arguments raised and rejected in Lambert v. Sullivan,35 F.Supp.2d 1131(E.D.Wis.1999).To the contrary, it appears that the issues will be precisely what they would be if Gibson were being transferred from his current prison to another Department of Corrections-owned and -operated prison located across the street with the same allegedly inadequate facilities; the nub of Gibson's case is his claim that due to his disabilities, being transferred would violate his constitutional rights and his rights under the ADA.

Habeas actions may not be used to challenge every change in the restrictiveness of a prison environment.After surveying previous decisions, the Seventh Circuit provided this "generalization," and acknowledged that "[t]he line is not a sharp one":

If the prisoner is seeking what can fairly be described as a quantum change in the level of custody — whether outright freedom, or freedom subject to the limited reporting and financial constraints of bond or parole or probation, or the run of the prison in contrast to the approximation to solitary confinement that is disciplinary segregation — then habeas corpus is his remedy.But if he is seeking a different program or location or environment, then he is challenging the conditions rather than the fact of his confinement and his remedy is under civil rights law, even if, as will usually be the case, the program or location or environment that he is challenging is more restrictive than the alternative that he seeks.

Graham v. Broglin,922 F.2d 379, 381(7th Cir.1991).Indeed, it is not clear that there is a line that...