Carl Tisthammer v. Jeffery S. Walton

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 9, 2013*
Decided December 10, 2013
Before
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13‐1196
CARL TISTHAMMER,
Petitioner‐Appellant,
v.
JEFFERY S. WALTON,
Respondent‐Appellee.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 12‐cv‐1266‐DRH
David R. Herndon,
Chief Judge.
O R D E R
Carl Tisthammer, an inmate at the federal penitentiary in Marion, Illinois,
applied for a writ of habeas corpus under 28 U.S.C. § 2241, contending that prison
officials were deliberately indifferent to his serious medical needs by denying him acid
reflux and pain medication. He asserted that he had been prescribed and received those
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
*The appellee was not served with process in the district court and is not
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that the case is appropriate for summary disposition. Thus, the appeal
is submitted on the appellantʹs brief and the record. See FED . R. A PP . P. 34(a)(2).

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No. 13‐1196 Page 2
medications while imprisoned at other facilities, but officials at Marion cancelled his
prescriptions and told him to buy over‐the‐counter medications instead.
The district court dismissed Tisthammer’s petition without prejudice because the
federal habeas corpus statute may not be used to challenge conditions of confinement.
See 28 U.S.C. § 2241(c)(3). The court declined to recast Tisthammer’s action as a civil
rights complaint, explaining that a civil rights complaint would subject him to a higher
filing fee and a possible “strike” if the court determined it to be frivolous. The court
advised Tisthammer that he could re‐file the suit as a civil rights action under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
On appeal Tisthammer glosses over the district court’s explanation and
maintains that the denial of medical services he experienced amounts to deliberate
indifference. But a habeas corpus petition is not the appropriate vehicle to challenge
prison conditions or medical care. See, e.g., Robinson v. Sherrod, 631 F.3d 839, 840–41 (7th
Cir. 2011); Glaus v. Anderson, 408 F.3d 382, 386–88 (7th Cir. 2005); Alejo v. Heller, 328 F.3d
930, 937 (7th Cir. 2003); DeWalt v. Carter, 224 F.3d 607, 617 (7th Cir. 2000); Pischke v.
Litscher, 178 F.3d 497, 499–500 (7th Cir. 1999). Prisoners may use habeas corpus petitions
to challenge the duration or fact of their confinement, see Graham v. Broglin, 922 F.2d 379,
381 (7th Cir. 1991), but because Tisthammer’s allegations center on medical care and do
not remotely affect the duration or fact of his imprisonment, the district court properly
dismissed his petition. See Robinson, 631 F.3d at 840–41; Glaus, 408 F.3d 388. If he wishes
to pursue his claim further, he should ensure he has exhausted the prison’s
administrative procedures and file a civil rights complaint under Bivens.
His request for appointment of counsel is denied and the district court’s
judgment is AFFIRMED.

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