Glaus, Steven v. Anderson, Carl

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1226
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.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 02-1114-JLF—James L. Foreman, Judge.
____________
ARGUED SEPTEMBER 8, 2004—DECIDED MAY 17, 2005
____________
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
*
We have substituted Carl Anderson, who is the Community
Corrections Manager over the Corrections Center where Glaus is
currently housed. We understand from Warden Randy Davis’s
Motion for Leave to Transfer that this is a halfway house in
Farmington, Missouri.
2 No. 03-1226
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 dis-
missed 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 num-
ber 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.”
No. 03-1226 3
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 improve-
ment 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 “re-
treatment 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, ac-
ting 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 custodi-
ans were deliberately indifferent to his medical needs, in
violation of his Eighth Amendment rights.
4 No. 03-1226
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 con-
finement.” 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 bound-
aries between habeas corpus and civil rights claims, and its
decision not to recast the case reflected important substan-
tive 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.
Capitol 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
No. 03-1226 5
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 (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 impli-
cate 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
6 No. 03-1226
(1973). As the Court noted, “[i]t would wholly frustrate ex-
plicit 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; see also Wilkinson v. Dotson, 125 S. Ct. 1242, 1248
(2005) (noting that “a state prisoner’s § 1983 action is
barred . . . if success in that action would necessarily dem-
onstrate 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 (1971), the federal equivalent of § 1983.
If a prisoner is not challenging the fact of his confine-
ment, 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 en-
vironment, 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 challeng-
ing is more restrictive than the alternative he seeks.
Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991).**
**
The passage quoted in text also refers to the possibility of
habeas corpus for a change from having the run of the prison to
being restricted to solitary confinement. In recent years, however,
(continued...)
No. 03-1226 7
As release is not available under Bivens, Glaus’s habeas
corpus petition would be proper if release were among the
possible remedies for an Eighth Amendment deliberate in-
difference claim. Unfortunately for Glaus, it is not. If an
inmate established that his medical treatment amounts to
cruel and unusual punishment, the appropriate remedy
would be to call for proper treatment, or to award him dam-
ages; release from custody is not an option. Accord Gomez v.
United States, 899 F.2d 1124, 1126 (11th Cir. 1990); Crawford
v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979); Cook v.
Hanberry, 596 F.2d 658, 660 (5th Cir. 1978). Since release
is unavailable, Glaus’s complaint necessarily concerns only
the conditions of his confinement and thus must be brought
as either a civil rights claim or possibly a Federal Tort
Claims Act claim against the United States or an Adminis-
trative Procedures Act challenge to the BOP guidelines on
treatment for hepatitis C.
Glaus responds to this conclusion by arguing that while
there may be no room within civil rights law for the remedy
of release, there is room within the writ of habeas corpus to
challenge unconstitutional prison conditions. In Preiser, the
Supreme Court left open the possibility that litigants could
use writs of habeas corpus in this fashion. See 411 U.S. at
**
(...continued)
the Supreme Court has indicated that prisoners do not have a lib-
erty interest for purposes of civil rights actions in anything but the
most dramatic differences in levels of confinement. See Sandin v.
Conner, 515 U.S. 472 (1995); see also Wilkinson v. Austin, 125 S.
Ct. 686 (2004) (granting certiorari on the issue of what due
process rights a prisoner has prior to placement in super-maxi-
mum security facility) (argued March 30, 2005). As we discuss
below, although the Supreme Court has never expressly ruled out
the use of habeas corpus to address that kind of change, it has
never held that habeas corpus is an option for these claims either.
In the absence of further guidance, we choose not to take that step
here.
8 No. 03-1226
499 (“This is not to say that habeas corpus may not also be
available to challenge such prison conditions. When a
prisoner is put under additional and unconstitutional
restraints during his lawful custody, it is arguable that
habeas corpus will lie to remove the restraints making the
custody illegal.”) (internal citations omitted). Later, the
Court expressly left “to another day the question of the pro-
priety of using a writ of habeas corpus to obtain review of
the conditions of confinement.” Bell v. Wolfish, 441 U.S. 520(1979). After 25 years, that day has yet to arrive. Most
recently, in Nelson v. Campbell, 124 S. Ct. 2117, 2124 (2004),
the Court held that some “civil rights damages actions . . .
fall at the margins of habeas,” implying that in some cir-
cumstances civil rights actions and writs of habeas corpus
may be coextensive.
While the Supreme Court has left the door open a crack
for habeas corpus claims challenging prison conditions, it
has never found anything that qualified. Without further
guidance from the Court, it is premature to question
Graham. Graham outlines a clear distinction: a petitioner
requests either a “quantum change in the level of custody,”
which must be addressed by habeas corpus, or “a different
program or location or environment,” which raises a civil
rights claim. 922 F.2d at 381. Since release is unavailable
to Glaus, his challenge can only concern the conditions of
his confinement or the administrative rules the BOP is us-
ing, not the fact of his confinement. As such, he may not
proceed with a habeas corpus petition. See also Pischke v.
Litscher, 178 F.3d 497, 500 (7th Cir. 1999) (holding that
habeas is the proper vehicle for presenting a claim “if but
only if the prisoner is seeking to ‘get out’ of custody in a
meaningful sense.”). Accordingly, the district court was cor-
rect in finding that Glaus could not proceed with his habeas
corpus petition.
Glaus argues in the alternative that if § 2241 was not the
proper vehicle for his complaint, the court should have
No. 03-1226 9
converted his petition into a civil rights claim given his
pro se status. While recharacterization may still be avail-
able in a narrow set of circumstances, those circumstances
are not present here.
In Graham, we wrote that if a pro se litigant “asks for
habeas corpus when he should have brought a civil rights
suit, all he has done is mislabel his suit, and either he should
be given leave to plead over or the mislabeling should sim-
ply be ignored.” 922 F.2d at 382. In Bunn v. Conley, 309
F.3d 1002 (7th Cir. 2002), however, we recognized that the
proper scope of recharacterization had been narrowed as a
result of the changed landscape caused by the Prison
Litigation Reform Act of 1996 (PLRA) and the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). “[T]here are pitfalls of different kinds for prisoners
using the wrong vehicle. . . . If a person files a habeas
corpus petition that should be presented under other stat-
utes, he or she may be subject to the three-strikes rule of the
PLRA and somewhat different exhaustion requirements.”
Id. at 1007. Other important differences include the identity
of the defendant (the warden, versus the doctors, or guards,
or others responsible for the alleged injury), the amount of
the filing fee, the way in which exhaustion must be accom-
plished, and the type of restriction on successive lawsuits.
In most cases, therefore, the district court should evaluate
cases as the plaintiffs label them. Id.This is not to say that recharacterization is utterly out of
the question. In Castro v. United States, the Supreme Court
considered the reverse of the current situation: recharacter-
ization of a pro se litigant’s civil rights claim into a petition
under 28 U.S.C. § 2255. See 540 U.S. 375, 383 (2003). The
Court noted that a district court may recharacterize a civil
rights claim, but before doing so it “must notify the pro se
litigant that it intends to recharacterize the pleading, warn
the litigant that this recharacterization means that any
subsequent § 2255 motion will be subject to the restrictions
10 No. 03-1226
on ‘second or successive’ motions, and provide the litigant
an opportunity to withdraw the motion or amend it so that
it contains all the § 2255 claims he believes he has.” Id. It
seems to us that the same logic should apply to the poten-
tial conversion of a habeas corpus petition into a civil rights
claim. If the complaint is amenable to conversion on its face,
meaning that it names the correct defendants and seeks the
correct relief, the court may recharacterize the petition so
long as it warns the pro se litigant of the consequences of
the conversion and provides an opportunity for the litigant
to withdraw or amend his or her complaint.
In this case, Glaus’s complaint was not amenable to con-
version. While Glaus sought injunctive relief, which is a
proper remedy for a Bivens claim, the warden would almost
surely not be the proper defendant if the district court were
to convert Glaus’s petition into a civil rights claim or an ad-
ministrative action. See Moore v. Pemberton, 110 F.3d 22,
23-24 (7th Cir. 1997) (“The right respondent in a § 2254
action is the warden of the prison; the right defendants in
a § 1983 suit are the persons whose wrongful acts harmed
the plaintiff (and the warden is rarely a proper defendant,
because he is not vicariously liable for subordinates’ acts).”).
Like state prisoners suing under § 1983, federal prisoners
suing under Bivens may sue relevant officials in their indi-
vidual capacity only. In this instance, Glaus’s suit against
the warden appears to be an action against the warden in
his official capacity. The fact that, by operation of law, both
the district court and this court have substituted each of
Glaus’s new wardens as defendants evidences this reality.
See FED. R. CIV. P. 25(d)(1); FED. R. APP. P. 43(c)(2). It is
also worth noting that the original individuals who stopped
Glaus’s medical treatment were at the Marion prison, and
that they appear to have ended Glaus’s treatment in reliance
on a general rule that the BOP follows. The record tells us
nothing about what the doctors at Farmington are doing or
not doing.
No. 03-1226 11
Under these circumstances, the district court was correct
to dismiss Glaus’s petition without prejudice. The practical
problem Glaus now faces comes from the fact that the court
accompanied its order with only the briefest of explanations.
In its two-page order, the district court wrote: “While courts
sometimes construe a mistakenly-labeled habeas petition as
a civil rights complaint, it would be inappropriate to do
here, because petitioner would face obstacles under the Prison
Litigation Reform Act. Therefore, the Court is unable to
provide the relief sought. Accordingly, this habeas corpus
action is dismissed without prejudice.” Glaus argues that
this statement was misleading, leaving him to believe that
he had no recourse but to appeal the court’s ruling.
In Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), we
held that in the context of summary judgment, “a prisoner
who is a plaintiff in a civil case and is not represented by
counsel is entitled to receive notice of the consequences of
failing to respond with affidavits to a motion for summary
judgment.” Id. at 102. We were concerned in Lewis, as we
are concerned here, that certain procedural requirements
would be lost on some untrained, unrepresented prisoner-
litigants. This is particularly so when an “aspect of federal
civil practice is contrary to lay intuition.” Id. In this instance,
the court prefaced its dismissal with the flat statement that
it was “unable to provide the relief sought,” suggesting that
the court’s dismissal without prejudice was more significant
than it was. As a matter of lay intuition, it is quite possible
that a pro se litigant could read the court’s decision as one
that precluded any other suits on the underlying facts.
In keeping with the approach dictated by the Supreme Court
in Castro and our own rule in Lewis, we believe that the
district courts should make clear exactly what it is they are,
and are not, doing when they dismiss a pro se prisoner-
litigant’s complaint without prejudice because it was brought
either as a habeas corpus petition or a civil rights action,
and it should have been the reverse. If, as normally will be
12 No. 03-1226
the case, conversion is improper, the district court should
include a short and plain statement in its order that states:
(1) that the court is not making a decision on the ultimate
merit of the case; (2) that the prisoner may refile immedi-
ately under the proper legal label, subject to the normal
rules such as those prohibiting frivolous lawsuits; and (3)
that refiling under the proper label will probably have cer-
tain consequences. Had this procedure been in effect for
Glaus’s case, the court would have informed Glaus that if
he chose to pursue a Bivens claim or an action challenging
the BOP’s policy, an adverse decision might count toward
the three free civil rights claims the PLRA allows him. See
28 U.S.C. § 1915(g).
Glaus’s deliberate indifference claim alleges a continuing
violation, and the record contains no indication that the BOP
has changed the policies that forced the end of Glaus’s treat-
ment. We note also that his habeas corpus petition naturally
included no request for damages. We therefore need not de-
cide whether Glaus is entitled to have the statute of limi-
tations tolled for any new claims, to the extent that they rely
on policies or actions that have continued unabated. We
express no opinion on any other aspect of any future action
he might bring.
III
While we have recommended a procedure that should en-
sure that district courts in the future provide pro se liti-
gants with better guidance, this is not intended to criticize
the district court here. In fact, as we have explained, the
court correctly concluded that Glaus’s deliberate indiffer-
ence claim could not be brought under 28 U.S.C. § 2241 and
that conversion was not the proper step to take. We there-
fore AFFIRM the judgment of the district court.
No. 03-1226 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-17-05