Glaus v. Anderson

• Decision Date: 17 May 2005
• Docket Number: No. 03-1226.,03-1226.
• Citation: 408 F.3d 382
• Parties: Steven A. GLAUS, Petitioner-Appellant, v. Carl ANDERSON, Community Corrections Manager for the Southern District of Illinois, Eastern District of Missouri, and Southern District of Indiana,<SMALL><SUP>*</SUP></SMALL> Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

408 F.3d 382

Steven A. GLAUS, Petitioner-Appellant, v. Carl ANDERSON, Community Corrections Manager for the Southern District of Illinois, Eastern District of Missouri, and Southern District of Indiana,^* Respondent-Appellee.

No. 03-1226.

United States Court of Appeals, Seventh Circuit.

Argued September 8, 2004.

Decided May 17, 2005.

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Heather Jackson (argued), Shefsky & Froelich, Chicago, IL, for Petitioner-Appellant.

William E. Coonan (argued), Office of the United States Attorney Civil Division, Fairview Heights, IL, for Respondent-Appellee.

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Steven Glaus is a prisoner suffering from hepatitis C, a serious liver disease. Although he received some medical care for his condition, the prison authorities at FPC Marion stopped treating Glaus in March 2002. In October of that year, Glaus filed a petition for a writ of habeas corpus, in which he combined a request for transfer to another institution or release with a plea that the prison resume his treatment. The district court dismissed Glaus's pro se petition without prejudice in January 2003, concluding that Glaus's claim was not covered by habeas corpus. The court declined to recharacterize Glaus's petition as a civil rights claim. Both actions were correct, as far as they went, and we thus affirm the judgment of the district court. Nevertheless, this appeal shows that Glaus did not understand the consequence of the district court's decision. The court never spelled out to Glaus why it was dismissing his petition without prejudice. Had Glaus realized the nature of his mistake, he might well have refiled a proper claim, against the proper defendants, rather than wasting his time with this appeal. We therefore have taken the opportunity in this case to recommend procedures for the future that may eliminate some unnecessary steps in similar prisoner litigation.

I

At the time of this appeal, Glaus was an inmate at the federal prison in Farmington, Missouri. Glaus, aged 54, has hepatitis C, a slow-developing, but potentially fatal liver disease. In March 2001, while at the federal prison in Marion, Illinois, Glaus began receiving treatment for his liver condition. For one year, the prison treated Glaus with interferon, a protein that combats viral infection. During this treatment, Glaus's hepatitis C viral load (that is, the number of viral RNA particles per milliliter of blood) dropped from more than 21 million to just over one million. Despite this apparent improvement, the prison authorities stopped treatment in March 2002, deeming Glaus a "non-responder."

According to the North Central regional director of the Federal Bureau of Prisons (BOP), interferon treatment may continue only if the patient-inmate's viral load drops below one million. Thus, despite the dramatic improvement Glaus experienced, the warden denied his request for continued treatment, stating, "No matter how much of an improvement this is from the pre-treatment values, it is considered a treatment failure and the current recommendations call for the discontinuation of the interferon." At a viral load of just over one million, Glaus was close, but not close enough. In September 2002, six months after Glaus's treatment had ended, his viral load had reached 189 million.

In his administrative remedy request, Glaus asked to be put back on the interferon or to receive a newer form of treatment, called Peg-Interferon, which combines a slower acting form of interferon, Pegylated-Interferon 2B, with Ribavarin, an anti-viral medication.

The administrator for national inmate appeals denied Glaus's request, because "[c]ontinuing interferon beyond 12 months is still considered to be experimental" and while "retreatment of nonresponders with Peg-Interferon may be considered on a case-by-case basis, . . . [y]our genotype and pre-treatment viral load ... predict that you would not respond to Peg-Interferon."

After exhausting his administrative remedies, Glaus, acting pro se, submitted a petition for writ of habeas corpus to the district court, relying on 28 U.S.C. § 2241. The petition requested transfer to a prison medical facility for a new course of Peg-Interferon or, in the alternative, release to the community so that Glaus could receive treatment from a local Veterans Affairs hospital. One transfer or the other was necessary, Glaus argued, because his current custodians were deliberately indifferent to his medical needs, in violation of his Eighth Amendment rights.

The district court ruled that Glaus's § 2241 petition did not fall within the bounds of the writ, because it dealt with matters properly handled in a civil rights action. "It is clear, given his Eighth Amendment argument, that petitioner is challenging the conditions, as opposed to the fact, of confinement." The court then refused to recharacterize Glaus's petition as a civil rights complaint, "because petitioner would face obstacles under the Prison Litigation Reform Act." Without saying anything more, the court concluded it was "unable to provide the relief sought" and dismissed Glaus's petition without prejudice.

II

On appeal, Glaus argues that the district court improperly dismissed his § 2241 petition and that even if habeas corpus was not the proper avenue, the district court should have recharacterized his petition as a civil rights complaint. We disagree. The court's decision tracked well-recognized boundaries between habeas corpus and civil rights claims, and its decision not to recast the case reflected important substantive and procedural differences between the two kinds of suits.

Before discussing the merits of Glaus's appeal, we must confront an issue of appellate jurisdiction. The district court dismissed Glaus's claims without prejudice and "in the usual case, such a dismissal does not qualify as an appealable final judgment because the plaintiff is free to re-file the case." Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir.2001). We have even gone so far as to state that dismissals without prejudice are "canonically non-final." Am. States Ins. Co. v. Capital Assoc. of Jackson County, Inc., 392 F.3d 939 940 (7th Cir.2004). Nonetheless, not all such dismissals are subject to the rule. There is an exception "if there is no amendment [a plaintiff] could reasonably be expected to offer to save the complaint, or if a new suit would be barred by the statute of limitations." See Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 923 (7th Cir.2003).

Here, the district court dismissed Glaus's petition because Glaus pursued the wrong theory against the wrong party (the warden, in his capacity as custodian). The court thought that since Glaus was complaining about constitutionally deficient medical care, Glaus's habeas corpus petition was really a classic "conditions of confinement" claim. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Glaus did not, and does not, see the case that way, principally because the relief he was requesting involved various transfers away from his place of confinement. He even seems to suggest that the prison's failure to treat him should result in his release, a remedy that may be sought only under habeas corpus. For purposes of appellate jurisdiction, however, the important fact is that no amendment Glaus could make to this petition can save it. We therefore have jurisdiction under 28 U.S.C. § 1291.

Turning to the substance of Glaus's appeal, we review de novo the district court's decision to dismiss Glaus's petition. See Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir.2003). Glaus makes two arguments for why filing under § 2241 was proper. First, Glaus argues that because release from custody is only available under habeas corpus and he sought release as a remedy for his Eighth Amendment claim, he had to use § 2241 (implying that this claim does not implicate either his conviction or his sentence, and thus that he does not need to use 28 U.S.C. § 2255). Second, relying principally on several older district court decisions, Glaus argues that civil rights actions are not the exclusive remedy for denials of medical treatment. He urges, in other words, that there is space within the bounds of habeas corpus for challenging unconstitutional prison conditions.

In Preiser v. Rodriguez, the Supreme Court held that the writ of habeas corpus was the exclusive civil remedy for prisoners seeking release from custody. 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). As the Court noted, "[i]t would wholly frustrate explicit congressional intent to hold that the respondents... could evade [the writ's exhaustion] requirement by the simple expedient of putting a different label on their pleadings." Id. at 489-90, 93 S.Ct. 1827; see also Wilkinson v. Dotson, ___ U.S. ___, 125 S.Ct. 1242, 1248, 161 L.Ed.2d 253 (2005) (noting that "a state prisoner's § 1983 action is barred ... if success in that action would necessarily demonstrate the invalidity of confinement or its duration.") (emphasis in original). Although the Court was comparing habeas corpus to the requirements facing state prisoners filing under 42 U.S.C. § 1983, its rationale applies just as soundly to federal prisoners filing a claim based on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the federal equivalent of § 1983.

If a prisoner is not challenging the fact of his confinement, but instead the conditions under which he is being held, we have held that she must use a § 1983 or Bivens theory:

If the prisoner is seeking what can be fairly 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, . . . then habeas corpus is his remedy. But if he is seeking a different program or location or environment, then he is...