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Challenge to Out of State Transfer Can Be Filed As Habeas
The plaintiff sought an order barring his transfer to an out of state private prison. The court dismissed his petition as an improper habeas action, but now grants reconsideration, since it realizes that this is not a second or subsequent petition about the same order or recommendation, but about a wholly separate transaction.
Edwards v. Balisok has no application to the plaintiff's ability to proceed via habeas, since his proposed transfer does not implicate the fact or duration of his custody. There is no due process protection against transfers, and even if there were, it should be enforced via 1983. However, habeas can be used to get from more restrictive to less restrictive custody, and to challenge custody that has not yet begun.
The plaintiff's allegation that the private facilities to which he might be transferred cannot accommodate his disability, spina bifida (which requires substantial accommodation in the areas of toilet facilities, work, recreation, and law library), sufficiently alleges a more restrictive or "quantum change" in his level of custody. At 995: "The quantum of increased restriction is evocative of that suffered by prisoners in disciplinary segregation, who ... may proceed in habeas. ..."
The plaintiff has exhausted administrative remedies, but not judicial remedies, and there appear to be state remedies available; the court gives the plaintiff an opportunity to contest that proposition. See: Gibson v. Puckett, 82 F.Supp.2d 992 (E.D.Wis. 2000).
Edwards v. Balisok has no application to the plaintiff's ability to proceed via habeas, since his proposed transfer does not implicate the fact or duration of his custody. There is no due process protection against transfers, and even if there were, it should be enforced via 1983. However, habeas can be used to get from more restrictive to less restrictive custody, and to challenge custody that has not yet begun.
The plaintiff's allegation that the private facilities to which he might be transferred cannot accommodate his disability, spina bifida (which requires substantial accommodation in the areas of toilet facilities, work, recreation, and law library), sufficiently alleges a more restrictive or "quantum change" in his level of custody. At 995: "The quantum of increased restriction is evocative of that suffered by prisoners in disciplinary segregation, who ... may proceed in habeas. ..."
The plaintiff has exhausted administrative remedies, but not judicial remedies, and there appear to be state remedies available; the court gives the plaintiff an opportunity to contest that proposition. See: Gibson v. Puckett, 82 F.Supp.2d 992 (E.D.Wis. 2000).
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Related legal case
Gibson v. Puckett
| Year | 2000 |
|---|---|
| Cite | 82 F.Supp.2d 992 (E.D.Wis. 2000) |
| Level | District Court |
| Injunction Status | N/A |