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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT MARTIN, 

Petitioner, CASE NO. 2:09-10423

 HONORABLE PAUL D. BORMAN

v. UNITED STATES DISTRICT JUDGE

C. ZYCH, 

Respondent.

______________________________________/

OPINION AND ORDER SUMMARILY DENYING THE 

PETITION FOR WRIT OF HABEAS CORPUS

Robert Martin, (“petitioner”), presently confined at the Federal Correctional Institution in

Milan, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In

his pro se application, petitioner claims that he is being denied medical treatment. For the

reasons stated below, the application for a writ of habeas corpus is DISMISSED WITHOUT

PREJUDICE.

I. Background

Petitioner claims that he has been suffering from a recurring acne lesion on the left side

of his face since August of 2003. Petitioner contends that he is receiving inadequate medical

treatment for this condition in prison. Petitioner contends that the medical staff at FCI-Milan

refuse to allow him to see a dermatologist or otherwise prescribe him the correct medication to

alleviate this condition.

II. Discussion

The instant petition is subject to summary dismissal because petitioner is challenging the

conditions of his confinement.

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Where a prisoner is challenging the very fact or duration of his physical imprisonment

and the relief that he seeks is a determination that he is entitled to immediate release or a

speedier release from that imprisonment, his sole federal remedy is a petition for writ of habeas

corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). However, habeas corpus is not

available to prisoners who are complaining only of mistreatment during their legal incarceration.

See Lutz v. Hemingway, 476 F. Supp. 2d 715, 718 (E.D. Mich. 2007). Complaints like the ones

raised by petitioner which involve conditions of confinement “do not relate to the legality of the

petitioner’s confinement, nor do they relate to the legal sufficiency of the criminal court

proceedings which resulted in the incarceration of the petitioner.” Id. (quoting Maddux v. Rose,

483 F. Supp. 661, 672 (E.D. Tenn. 1980)). A petition for writ of habeas corpus is not the proper

vehicle for a prisoner’s claim that prison officials have been deliberately indifferent to his

medical needs, because release from custody is not an available remedy for a deliberate

indifference claim. See Glaus v. Anderson, 408 F. 3d 382, 387 (7th Cir. 2005); See also Hamilton

v. Gansheimer, 536 F. Supp. 2d 825, 841-42 (N.D. Ohio 2008). A federal inmate like petitioner

should therefore bring his medical indifference claim as a civil rights complaint filed pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 395 (1971).

Glaus, 408 F. 3d at 386-87. Because petitioner challenges only the conditions of his

confinement, his claims “fall outside of the cognizable core of habeas corpus relief.” See Hodges

v. Bell, 170 Fed. Appx. 389, 393 (6th Cir. 2006).

This Court, will not, however, convert petitioner’s habeas petition into a civil action

brought pursuant to Bivens. The Prisoner Litigation Reform Act of 1995 (PLRA) states that “if a

prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required

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to pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1)(as amended). See also In Re

Prison Litigation Reform Act, 105 F. 3d 1131, 1138 (6th Cir. 1997). Under the PLRA, when an

inmate seeks pauper status, the only issue for the district court to determine is whether the

inmate is required to pay the entire three hundred and fifty ($ 350.00) dollar filing fee at the

outset of the case or over a period of time under an installment plan. McGore v. Wrigglesworth,

114 F. 3d 601, 604 (6th Cir. 1997). If a prisoner wishes to file a civil action and seek pauper

status, the prisoner must file an affidavit of indigency as well as a certified copy of his or her

prison account statement showing the activity in the inmate’s prison account for the previous six

months. Id. at 605. 

In addition, the PLRA requires that district courts screen all civil cases brought by

prisoners. See McGore, 114 F. 3d at 608. If a complaint fails to pass muster under 28 U.S.C.

§1915(e)(2) or § 1915A, the “district court should sua sponte dismiss the complaint.” Id. at 612. 

Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915(e)(2)(A), a district court must sua sponte

dismiss an in forma pauperis complaint before service on the defendant if satisfied that the

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

that it seeks monetary relief from a defendant or defendants who are immune from such relief.

McLittle v. O’Brien, 974 F. Supp. 635, 636 (E.D. Mich. 1997).

Finally, a federal district court may dismiss an incarcerated plaintiff’s civil case if, on 3

or more previous occasions, a federal court dismissed the incarcerated plaintiff's action because

it was frivolous or malicious or failed to state a claim for which relief may be granted. See, 28

U.S.C.§ 1915(g) (1996); See also Thaddeus-X v. Blatter, 175 F. 3d 378, 400 (6th Cir. 1999).

Because of the vastly different procedural requirements for habeas petitions and other

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civil actions brought by prisoners, a court confronted with a habeas petition that is properly

brought under § 1983 or Bivens should dismiss the petition, rather than “converting” the petition

to a civil action brought pursuant to § 1983 or Bivens. Richmond v. Scibana, 387 F. 3d 602, 606

(7th Cir. 2004); See also Martin v. Overton, 391 F. 3d 710, 713 (6th Cir. 2004)(holding that the

district court should have dismissed the habeas petitioner’s § 2241 petition without prejudice to

allow petitioner to raise his potential civil rights claims properly as a § 1983 action rather than to

re-characterize it as a § 2254 petition without notice to petitioner). More specifically, petitioner

is not entitled to have his habeas petition alleging deliberate indifference to medical needs recharacterized as a federal civil rights claim under Bivens to avoid dismissal of the petition,

because petitioner has named the warden in his official capacity as the defendant. Glaus, 408 F.

3d at 389. A proper civil rights action would be required to name as the defendants, in their

individual capacities, those persons who harmed petitioner. Id. 

III. CONCLUSION

Based upon the foregoing, the petition for writ of habeas corpus brought pursuant to 28

U.S.C. § 2241 is DENIED. Because a certificate of appealability is not needed to appeal the

denial of a habeas petition filed under § 2241, Witham v. United States, 355 F. 3d 501, 504 (6th

Cir. 2004), petitioner need not apply for one with this Court or with the Sixth Circuit before

filing an appeal from the denial of his habeas petition.

SO ORDERED.

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S/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: February 17, 2009

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

February 17, 2009.

S/Denise Goodine 

Case Manager

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