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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ANGELA DENISE KILGORE, 

Petitioner,

vs. Case No. 4:11cv94-MP/WCS

BUREAU OF PRISONS, et al., 

Respondents.

 /

REPORT AND RECOMMENDATION TO DISMISS § 2241 PROCEEDING

This cause is before the court on a petition for writ of habeas corpus filed

pursuant to 28 U.S.C. § 2241. Doc. 1. Petitioner filed a motion to proceed in forma

pauperis, doc. 2, which is granted solely for purposes of dismissal.

Petitioner complains of deliberate indifference to medical needs and callous

disregard of prescribed medical treatment for an injury to or condition of her leg. For

relief, Petitioner seeks:

Punitive and compensatory damages for medical care causing extreme

pain and suffering and constant fear of loss of leg for deliberate

indifference to medical care, callous disregard for health and safety and

any other relief due her in violation of her Constitutional rights, known and

unknown to the plaintiff, [inclusive] of all legal fees and costs of this

proceeding. 
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Doc. 1, p. 6. Petitioner titles the attachment, setting forth facts and record references as

(in part) a "motion under" § 2241, a "motion for preventive injunction" and "petition for

damages." Doc. 1, attachment (doc. 1-1, p. 2 of the document as scanned in ECF)

(Electronic Case Filing). 

Petitioner filed a separate document titled "preventive injunction," asking that she

not be transferred so that she may be kept at FCI (Federal Correctional Institution)

Tallahassee and treated by people there. Doc. 3. On March 9 and again on March 12,

2011, Petitioner submitted notices that her address changed to FMC (Federal Medical

Center) Carswell, in Fort Worth, Texas. Docs. 5 and 7. She filed a "motion for

preliminary injunction for retaliatory transfer," stating that a retaliatory transfer was

"done on March 8, 2011," and asking to be returned from FMC Carswell to FCI

Tallahassee. Doc. 8, dated March 9 and filed on March 17, 2011. Doc. 8.1

Petitioner also filed a motion to admit medical records. Doc. 6, see also doc. 6-1

in ECF (proposed medical records). 

This case should be summarily dismissed as Petitioner's claims are not

cognizable under § 2241. Habeas corpus is the appropriate and exclusive remedy

where a prisoner seeks to effect immediate or more speedy release from confinement. 

See Preiser v. Rodriguez, 411 U.S. 475, 485-87, 93 S.Ct. 1827, 1834-35, 36 L.Ed.2d

439 (1973). Petitioner here seeks injunctive relief and damages. She does not seek

1

 Petitioner signed (but did not date) the document at page 4; underneath her

signature is an address label bearing the FMC address, affixed over what appears to be

the FCI address. The attached certificate of service indicates that Petitioner deposited

the document in the prison mail at FCI on March 9, 2011, and the address under

Petitioner's signature is the FCI address

Case No. 4:11cv94-MP/WCS
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immediate or speedier release, no would she be entitled to it. "The appropriate

Eleventh Circuit relief from prison conditions that violate the Eighth Amendment . . . is to

require the discontinuance of any improper practices, or to require correction of any

condition causing cruel and unusual punishment." Fernandez v. United States, 941

F.2d 1488, 1494 (11th Cir. 1991), quoting, Gomez v. United States, 899 F.2d 1124,

1126 (11th Cir. 1990). "Release from confinement is not a possible remedy." 941 F.2d

at 1494.2

In federal court, Petitioner may pursue injunctive relief and damages regarding

her medical treatment in prison by filing a separate civil rights complaint and in forma

pauperis application. She is advised that a separate case will be subject to the Prison

Litigation Reform Act (PLRA).3 

2

 While irrelevant to the analysis of whether this case properly proceeds in

habeas corpus, according to the website of the Federal Bureau of Prisons

(www.bop.gov), FMC Carswell "provides specialized medical and mental health

services to female offenders." Transfer there would seem to benefit an inmate with a

stated medical condition.

3

 The filing fee for any civil action other than habeas corpus is $ 350.00. 28

U.S.C. § 1914(a). Under the PLRA (which does not apply to habeas proceedings),

even if leave to proceed in forma pauperis is granted the court will access an initial

partial filing fee, and the prisoner will be required to pay back the entire fee in monthly

installments. 28 U.S.C. § 1915(b)(1), (2). Notwithstanding any fee or portion thereof

that is paid, the court will dismiss the case if it finds the allegation of poverty is untrue,

that the action is frivolous or malicious, fails to state a claim upon which relief may be

granted, or seeks monetary relief against a defendant who is immune. 28 U.S.C. §

1915(e)(2). The prisoner may also be required to pay any costs in monthly installments. 

§ 1915(f). After three such dismissals, a prisoner is precluded from proceeding in forma

pauperis "unless the prisoner is under imminent danger of serious physical injury." §

1915(g). 

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It is therefore respectfully RECOMMENDED that the petition for writ of habeas

corpus (doc. 1) and motions for injunction (docs. 3 and 8) be SUMMARILY DENIED

without prejudice. 

IN CHAMBERS at Tallahassee, Florida, on April 5, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

Case No. 4:11cv94-MP/WCS