In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2147
C HARLES R. R OBINSON, IV,
Petitioner-Appellant,
v.
W ILLIAM A. S HERROD,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-cv-586–MJR—Michael J. Reagan, Judge.
S UBMITTED N OVEMBER 30, 2010—D ECIDED JANUARY 26, 2011
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
P OSNER, Circuit Judge. Charles Robinson, a federal
inmate, brought this habeas corpus action claiming that
the prison medical staff has refused to investigate his
complaints of back pain, and seeking an order that the
staff schedule a diagnostic MRI and administer appro-
priate medication until the source of his back pain was
discovered and treated. The district court dismissed the
2 No. 10-2147
action without prejudice on the ground that the federal
habeas corpus statute cannot be used to challenge condi-
tions of confinement. See 28 U.S.C. § 2241(c)(3).
And so we had held, with specific reference to com-
plaints about medical care, in Glaus v. Anderson, 408 F.3d
382, 386-87 (7th Cir. 2005); see also Martin v. Overton, 391
F.3d 710, 714 (6th Cir. 2004). Yet Clark v. Hedrick, 233
F.3d 1093 (8th Cir. 2000), had addressed the merits of a
federal inmate’s habeas corpus action complaining about
lack of medical care, while saying, rather oddly, that “it
occurs to us that the action might more properly have
been brought as a Bivens claim, but we need not pursue
the point.” Id. at 1093 n. 1. A number of other court of
appeals cases likewise have allowed conditions of con-
finement to be challenged in an action for habeas corpus,
even when, as in this case (and unlike such cases as
Docken v. Chase, 393 F.3d 1024 (9th Cir. 2004), and Montez
v. McKinna, 208 F.3d 862, 864-65 (10th Cir. 2000)), the
challenge could not affect the duration of the petitioner’s
confinement even indirectly. E.g., Thompson v. Choinski,
525 F.3d 205, 209 (2d Cir. 2008); Woodall v. Federal
Bureau of Prisons, 432 F.3d 235, 241-44 (3d Cir. 2005).
We noted in Glaus that the Supreme Court had “left the
door open a crack” for prisoners to use habeas corpus to
challenge a condition of confinement. 408 F.3d at 387; see
Nelson v. Campbell, 541 U.S. 637, 644-46 (2004); Bell v.
Wolfish, 441 U.S. 520, 526 n. 6 (1979); Preiser v. Rodriguez,
411 U.S. 475, 499-500 (1973). But Bell and Preiser merely
reserve the question noncommittally, while Nelson is a
sport far removed from a routine challenge to prison
No. 10-2147 3
conditions. The question in that case was whether habeas
corpus could be the vehicle for challenging the method
of capital punishment employed by a state; the choice
of method would not affect the duration of the sen-
tence (eternity, in the case of capital punishment)
directly, but could do so indirectly if the state declined
to substitute a permissible method. When there isn’t
even an indirect effect on duration of punishment (as
in Docken and Montez, as well as Nelson), we’ll adhere to
our long-standing view that habeas corpus is not a per-
missible route for challenging prison conditions. See
Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir. 2003);
DeWalt v. Carter, 224 F.3d 607, 617 (7th Cir. 2000); Pischke
v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999); Graham v.
Broglin, 922 F.2d 379, 381 (7th Cir. 1991).
Robinson thus made the wrong choice in seeking relief
under the habeas corpus statute. The district court, on
its own initiative, considered interpreting Robinson’s
pleading as a civil rights complaint but decided not to
do so because he hadn’t exhausted the administrative
remedies that such a complainant is required by 42 U.S.C.
§ 1997e(a) to exhaust. But we think it worth reminding
the district courts not to recharacterize a prisoner’s peti-
tion for habeas corpus as a prisoner civil rights com-
plaint without his informed consent, not here sought or
given. Glaus v. Anderson, supra, 408 F.3d at 388. It’s not
like recharacterizing a tort suit as a suit for breach of
contract, since, as explained in Glaus, a habeas corpus
action and a prisoner civil rights suit differ in a variety of
respects—such as the proper defendant, filing fees, the
means of collecting them, and restrictions on future
4 No. 10-2147
filings—that may make recharacterization impossible or,
if possible, disadvantageous to the prisoner compared to
a dismissal without prejudice of his petition for habeas
corpus.
Although the dismissal of Robinson’s suit was proper,
his complaint of back pain remains unaddressed and this
raises the question of what legal remedy he might have.
The district court thought it would be a suit under either
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), or the Federal Tort Claims
Act, 28 U.S.C. §§ 1346(b), 2671-80, or, as in Manning
v. United States, 546 F.3d 430 (7th Cir. 2008), and Harris
v. United States, 422 F.3d 322 (6th Cir. 2005), both (though
a judgment under the tort claims act precludes relief
under Bivens, 28 U.S.C. § 2676; Arevalo v. Woods, 811 F.2d
487, 490 (9th Cir. 1987)).
The tort claims act is normally the easier route for a
federal prisoner to pursue what amounts to a mal-
practice claim than Bivens is. Myles v. United States, 416
F.3d 551, 553 (7th Cir. 2005). But Robinson wants
equitable relief, not damages. It is odd to seek
equitable relief in what amounts to a malpractice
case, but damages might be an inadequate remedy for
debilitating, constant, and perhaps increasing pain;
imagine the deliberate, gratuitous refusal of the prison’s
medical staff to set an inmate’s broken leg, as a result of
which it was predictable that the leg would be perma-
nently deformed. Monetary relief may be worth much
less to prison inmates than to other persons, moreover,
if their release date is remote.
No. 10-2147 5
The tort claims act doesn’t authorize equitable relief. 28
U.S.C. § 1346(b)(1); Estate of Trentadue v. United States,
397 F.3d 840, 863 (10th Cir. 2005); see 28 U.S.C. § 1346(b);
Hatahley v. United States, 351 U.S. 173, 182 (1965). But
the Administrative Procedure Act does, 5 U.S.C. § 702;
the Federal Bureau of Prisons is subject to that act;
United States v. Sawyer, 521 F.3d 792, 794 (7th Cir.
2008); Simmat v. United States Bureau of Prisons, 413 F.3d
1225, 1239 (10th Cir. 2005); and so federal inmates can
in principle invoke the APA to obtain an order for
medical treatment. Glaus v. Anderson, supra, 408 F.3d at
387. But none of the medical services provided by the
Bureau of Prisons—whether set forth in the 6000 Series of
Program Statements covering staff and inmate health
services, see 6000 Series (Medical, Dental, and Health),
BOP: Policy Locator, www.bop.gov/DataSource/execute/
dsPolicyLoc (all websites cited in this opinion were
visited on Dec. 29, 2010); in published regulations, see 28
C.F.R. §§ 549.10-.66; or in Clinical Practice Guidelines, see
Clinical Practice Guidelines, Bureau of Prisons Health Care
Research, www.bop.gov/news/medresources.jsp—would
provide succor to an inmate like Robinson who wants
a judicial order compelling a diagnostic evaluation of,
and treatment for, his back pain.
Program Statements are internal statements of Bureau of
Prison policies that can be altered at will, and not
being adopted through rulemaking procedures, 5 U.S.C.
§ 553(b)(3)(A), do not create entitlements enforceable
under the APA. E.g., Reno v. Koray, 515 U.S. 50, 61 (1995);
Miller v. Henman, 804 F.2d 421, 426 (7th Cir. 1986); United
States v. Alameda Gateway Ltd., 213 F.3d 1161, 1168 (9th
6 No. 10-2147
Cir. 2000). The same holds for the Clinical Practice Guide-
lines, and anyway they are limited to a list of medical
protocols that does not include diagnosis of or treat-
ment for back pain. See Federal Bureau of Prisons,
Clinical Practice Guidelines: Preventive Health Care 1, 13-14
(Apr. 2009), www.bop.gov/news/PDFs/phc.pdf. Neither
do the Bureau’s regulations on inmate medical care
cover testing or treatment for back pain. See 28 C.F.R.
§§ 549.10-.66.
That brings us back to Bivens. Robinson’s allegation
that prison officials are deliberately ignoring serious
undiagnosed back pain states a claim under the Eighth
Amendment, see, e.g., Jackson v. Kotter, 541 F.3d 688, 698
(7th Cir. 2008); Logan v. Clarke, 119 F.3d 647, 649 (8th Cir.
1997), and prospective relief is available in a Bivens suit.
Glaus v. Anderson, supra, 408 F.3d at 389. This is not to
suggest that Bivens is a gap-filler, available whenever
a plaintiff seeks a particular remedy, not provided for
by any statute or regulation, for a constitutional viola-
tion by federal officers. Bivens is under a cloud, because
it is based on a concept of federal common law no longer
in favor in the courts: the concept that for every right
conferred by federal law the federal courts can create a
remedy above and beyond the remedies created by the
Constitution, statutes, or regulations. No more; even if
the alternative remedy is inferior to the Bivens remedy
(a suit for damages against federal officers), it can be
made exclusive. Hui v. Castaneda, 130 S. Ct. 1845, 1854-55
(2010).
For “any freestanding damages remedy for a claimed
constitutional violation has to represent a judgment
No. 10-2147 7
about the best way to implement a constitutional guaran-
tee; it is not an automatic entitlement no matter what
other means there may be to vindicate a protected
interest, and in most instances we have found a Bivens
remedy unjustified.” Wilkie v. Robbins, 551 U.S. 537, 550
(2007). “[O]n the assumption that a constitutionally
recognized interest is adversely affected by the actions
of federal employees, the decision whether to recognize
a Bivens remedy may require two steps. In the first
place, there is the question whether any alternative,
existing process for protecting the interest amounts to
a convincing reason for the Judicial Branch to refrain
from providing a new and freestanding remedy in dam-
ages. But even in the absence of an alternative, a Bivens
remedy is a subject of judgment: ‘the federal courts
must make the kind of remedial determination that
is appropriate for a common-law tribunal, paying par-
ticular heed, however, to any special factors coun-
seling hesitation before authorizing a new kind of
federal litigation.’ ” Id. (citations omitted).
Carlson v. Green, 446 U.S. 14 (1980), however, which held
that the Federal Tort Claims Act is not the exclusive
remedy for constitutional torts by federal officers,
has never been overruled, and so remains available to
Robinson—or rather, remained so; he has failed to
exhaust the available administrative remedies. 28 C.F.R.
§§ 542.10-.19; U.S. Dept. of Justice, Federal Bureau of
Prisons, Program Statement 1330.16—Administrative
Remedy Program (Dec. 31, 2007), www.bop.gov/policy/
progstat/1330_016.pdf. That failure made a Bivens suit
premature. 42 U.S.C. § 1997e(a); Dale v. Lappin, 376 F.3d
8 No. 10-2147
652, 655 (7th Cir. 2004); Yousef v. Reno, 254 F.3d 1214,
1221 (10th Cir. 2001); Nyhuis v. Reno, 204 F.3d 65, 66, 78
(3d Cir. 2000). And it would have barred any alterna-
tive form of relief as well—whether under section 2241
of the Judicial Code, the Federal Tort Claims Act, or
the Administrative Procedure Act. The district court
explained all this yet Robinson still appealed, and his
obduracy marks the appeal as frivolous and gives him
his third strike under the Prison Litigation Reform Act.
28 U.S.C. § 1915(g); Kalinowski v. Bond, 358 F.3d 978, 979
(7th Cir. 2004). (He incurred one when the district court
dismissed his complaint for failure to state a claim in
Robinson v. Walter, No. 3:98-cv-03208 (C.D. Ill. June 24,
1999), and a second when we affirmed that dismissal. 21
F. App’x 505 (7th Cir. 2001).)
There is a further wrinkle. Robinson is still, we may
assume, suffering from severe, untreated back pain.
The pain could get worse. Does our dismissal forever
bar him from relief for what may be a violation of the
Eighth Amendment? Because the dismissal of the
present suit was without prejudice, res judicata (claim
preclusion) will not bar a future suit based on identical
grounds. Collateral estoppel (issue preclusion) will bar
relitigation of the grounds on which the present suit was
dismissed. E.g., Perry v. Sheahan, 222 F.3d 309, 318 (7th Cir.
2000); Okoro v. Bohman, 164 F.3d 1059, 1062-64 (7th Cir.
1999); In re Sonus Networks Inc., Shareholder Derivative
Litigation, 499 F.3d 47, 59 (1st Cir. 2007); Kasap v. Folger
Nolan Fleming & Douglas, Inc., 166 F.3d 1243, 1248 (D.C.
Cir. 1999). But there has been no ruling on the merits of
his claim, and so if he refiles his suit as a Bivens suit after
No. 10-2147 9
exhausting his Bureau of Prison remedies the suit can
proceed even if his pain grows no worse, though be-
cause he has accrued three strikes he cannot sue in
forma pauperis—which would excuse him from having to
pay the filing fee up front rather than in installments,
28 U.S.C. § 1915(b)—unless he can show that he is
“under imminent danger of serious physical injury.”
§ 1915(g); see Fletcher v. Menard Correctional Center, 623
F.3d 1171, 1172 (7th Cir. 2010).
A FFIRMED.
1-26-11