The opinion of the court was delivered by: MICHAEL REAGAN, District Judge
Petitioner brings this action pursuant to 28 U.S.C. § 2241 to
challenge a disciplinary proceeding, and he also seeks leave to
proceed in forma pauperis (Doc. 2). According to the pleadings,
in January 2005 Petitioner was charged with indecent exposure; a
guilty finding led to the revocation of his commissary privilege
for sixty days.
This case is now before the Court for a preliminary review of
the petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases in United States District Courts. Rule 4 provides that
upon preliminary consideration by the district court judge, "[i]f
it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in
the district court, the judge shall make an order for its summary
dismissal and cause the petitioner to be notified." Rule 1(b) of
those Rules gives this Court the authority to apply the rules to
other habeas corpus cases. After carefully reviewing the petition
in the present case, the Court concludes that Petitioner is not
entitled to relief, and the petition must be dismissed.
Typically the writ of habeas corpus is used to completely free
an inmate from unlawful custody. Preiser v. Rodriguez, 411 U.S. 475, 484-85 (1973). The
writ has been extended, under certain circumstances, to allow a
prisoner to challenge his transfer to a more restrictive
confinement. See, e.g., United States v. Harris, 12 F.3d 735,
736 (7th Cir. 1994); Graham v. Broglin, 922 F.2d 379
(7th Cir. 1991).
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. . . .
Id. at 381 (emphasis added); Falcon v. U.S. Bureau of
Prisons, 52 F.3d 137, 138-139 (7th Cir. 1995).
In the instant case, Petitioner seeks restoration of his
commissary privilege, but such a challenge does not request a
"quantum change in the level of custody." Therefore, relief is
not available to him under habeas corpus.
While courts sometimes construe a mistakenly-labeled habeas
corpus petitions as a civil rights complaint, see, e.g.,
Graham, 922 F.2d at 381-82 (collecting cases), it would be
inappropriate to do so here, because Petitioner would face
obstacles under the Prison Litigation Reform Act, Title VIII of
Pub.L. No. 104-134, 110 Stat. 1321 (effective April 26, 1996).
See generally 28 U.S.C. § 1915. This consideration is
particularly applicable here, as Petitioner is barred from
proceeding in forma pauperis. 28 U.S.C. § 1915(g).*fn1
Therefore, the Court is unable to provide the relief sought.
Accordingly, the motion for leave to proceed in forma pauperis is DENIED, and this habeas corpus
action is DISMISSED without prejudice to Petitioner raising his
claims in a civil rights action. If Petitioner wishes to
challenge this disciplinary proceeding, he may do so only in a
properly filed civil rights action, accompanied by the full $250
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