United States District Court, W.D. Wisconsin
WILLIAM M. CONLEY District Judge.
Willie Hogan seeks a writ of habeas corpus under 28 U.S.C.
§ 2254. After conducting a preliminary review of the
petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases, the court concludes that this petition must be
dismissed because the relief Hogan seeks is not available
under § 2254.
is currently housed at the Sand Ridge Secure Treatment Center
(“Sand Ridge”). Sand Ridge is a secure treatment
facility operated by the Department of Health Services for
persons who have been committed under Wisconsin's
sexually violent persons law, Chapter 980. In his petition,
Hogan alleges that the Sand Ridge staff violated his and
other patients' constitutional and federal statutory
rights. In particular, he states that the Sand Ridge mail
room staff would not forward “the group filing of
Willie Hogan” to the Wisconsin Court of Appeals, which
he alleges violates the Federal Tort Claims Act, as well as
the First, Fifth, Thirteenth and Fourteenth Amendments. He
further claims that his “group filing, ” which
appears to have been filed in the Dane County Circuit Court,
alleged that Sand Ridge staff retaliated against group
members, falsified treatment records, and acted with
deliberate indifference to group members.
Hogan's petition before this court, he summarizes the
claims he sought in the state court filings and requests
various forms of injunctive relief, mainly focusing on
potential improvements to the ways Sand Ridge staff treats
its patients. Hogan also requests damages of $100, 000 for
each patient that is a part of his group filing.
petition does not fall under the purview of § 2254
because he is not challenging a conviction or sentence. A
petition for writ of habeas corpus is the proper route if the
prisoner seeks “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.” Graham v. Broglin, 922
F.2d 379, 381 (7th Cir. 1991); see Moran v.
Sondalle, 650-51 (7th Cir. 2000) (“State prisoners
who want to challenge their convictions, their sentences, or
administrative orders . . . must seek habeas corpus ….
State prisoners who want to raise a constitutional challenge
to any other decision … must instead employ §
1983.). However, Hogan is seeking only injunctive relief and
money damages, which are available under 42 U.S.C. §
1983, but not in a habeas petition. See Glaus v.
Anderson, 408 F.3d 382, 388-89 (7th Cir. 2005);
Moore v. Pemberton, 110 F.3d 22, 23-24 (7th Cir.
allegations and relief sought in Hogan's petition
resemble a § 1983 action, but the court will not convert
this action into a civil rights complaint. When a prisoner
mislabels a civil lawsuit as a habeas petition, the court may
not simply convert the action because of the various
procedural differences between the two types of actions.
Moran v. Sondalle, 218 F.3d 647, 650-51 (7th Cir.
2000); Pischke v. Litscher, 178 F.3d 497, 500 (7th
Cir. 1999). For example, the filing fee is $5 for a habeas
petition, but $400 for a civil action (or $350 if the
plaintiff is proceeding in forma pauperis).
Additionally, as the petition stands, Hogan names Sand
Ridge's director as the respondent, not the individual or
individuals that are responsible for the alleged
constitutional violations. In a civil rights action, the
complaint must name as defendants the individual or
individuals responsible for the harm. See Glaus, 408
F.3d at 389. Accordingly, the petition will be dismissed.
may refile his petition as a complaint pursuant to 42 U.S.C.
§ 1983. The court makes no judgment as to whether his
claim will succeed, but again Hogan should be aware that to
file this complaint he will have to pay the $400 filing fee.
If he requests and is granted leave to proceed in forma
pauperis under 28 U.S.C. § 1915, he must pay the
$350 fee in installments, starting with an initial partial
payment calculated from a trust fund account statement,
followed by monthly payments until the fee is paid in full.
In addition, § 1915(e)(2) requires the court to screen
the plaintiff's complaint to determine whether the
proposed action (1) is frivolous or malicious; (2) fails to
state a claim upon which relief may be granted; or (3) seeks
monetary damages from a defendant who is immune from such
Rule 11 of the Rules Governing Section 2254 Cases, the court
must issue or deny a certificate of appealability when
entering a final order adverse to petitioner. 28 U.S.C.
§ 2253(c)(2); Tennard v. Dretke, 542 U.S. 274,
282 (2004). Generally, this means that “reasonable
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotations
and citations omitted). To the extent that this order
qualifies as “final” for purposes of Rule 11, the
court declines to issue a certificate of appealability
because reasonable jurists would not debate that Hogan cannot
obtain the relief he seeks under § 2254.
Petitioner Willie Hogan's petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is DENIED and this
matter is DISMISSED.
certificate of appealability is DENIED. If petitioner wishes
he may seek a certificate from the court of ...