In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1190

Mark Moran,

Petitioner-Appellant,

v.

Kenneth Sondalle,

Respondent-Appellee.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-C-1446--Myron L. Gordon, Judge.



No. 00-1206

Daniel L. Johnson,

Petitioner-Appellant,

v.

Kenneth Sondalle,

Respondent-Appellee.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00-C-109--Myron L. Gordon, Judge.



No. 00-1220

Robert R. Paulk,

Petitioner-Appellant,

v.

Kenneth Sondalle,
Respondent-Appellee.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-C-1445--Lynn Adelman, Judge.


No. 00-1250

Terry Paul,

Petitioner-Appellant,

v.

Kenneth Sondalle,

Respondent-Appellee.


Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00-C-69--Lynn Adelman, Judge.



No. 00-1291

Michael Spiess,

Petitioner-Appellant,

v.

Kenneth Sondalle,

Respondent-Appellee.


Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-C-0822-S--John C. Shabaz, Chief Judge.


Submitted May 4, 2000--Decided June 22, 2000




  Before Posner, Chief Judge, and Easterbrook
and Diane P. Wood, Circuit Judges.

  Per Curiam. We have consolidated five
cases in which prisoners required to
litigate under 42 U.S.C. sec.1983 instead
sought writs of habeas corpus. The Prison
Litigation Reform Act, which applies to
prisoners’ civil suits, imposes require-
ments different from those of the Antite-
rrorism and Effective Death Penalty Act,
which governs collateral attacks on con-
finement, making it important to classify
cases correctly. See, e.g., Pischke v.
Litscher, 178 F.3d 497 (7th Cir. 1999);
Valona v. United States, 138 F.3d 693
(7th Cir. 1998); Moore v. Pemberton, 110
F.3d 22 (7th Cir. 1997); Copus v. Edgert-
on, 96 F.3d 1038 (7th Cir. 1996). Prison-
ers may be tempted to choose one route
rather than another to avoid limitations
Congress adopted. For example, the filing
fee for an action seeking a writ of habe-
as corpus is $5, while the fee to com-
mence a case under sec.1983 is $150, see
28 U.S.C. sec.1914(a), and the fee in a
sec.1983 case eventually will be collect-
ed from the prisoner’s trust account
under 28 U.S.C. sec.1915(b) even if the
prisoner cannot pay in advance. Frivolous
actions count as "strikes" under sec.191-
5(g), and a prisoner who has accumulated
three strikes must as a rule prepay the
fees in all future civil actions, while
collateral attacks are not subject to
limitation because of prior frivolous
suits.

  Four of the petitions, filed by Mark
Moran, Daniel Johnson, Robert Paulk, and
Terry Paul, contend that Wisconsin vio-
lated multiple provisions of the Consti-
tution by transferring inmates to pri-
vately run prisons in other states. The
fifth, filed by Michael Spiess, alleges
that Wisconsin failed to use constitu-
tionally required procedures before deny-
ing an application for release on parole.
All five prisoners claimed that relief is
proper under 28 U.S.C. sec.2241. In the
first four cases the district court,
citing Pischke, held that such claims
must be pursued as civil suits under
sec.1983. In each case the district court
dismissed the petition (without prejudice
to refiling under sec.1983), declined to
issue a certificate of appealability, see
28 U.S.C. sec.2253(c)(1)(A), and permit-
ted the appeal to proceed in forma paupe-
ris. In each case, despite ruling that
the action was frivolous, the district
court declined to certify that an appeal
would not be in good faith under 28 U.S.-
C. sec.1915(a)(3). The district judges
stated that the prisoners were "earnest"
and thus proceeding in good faith. In the
fifth case the district court did not
reach the merits, ruling that Spiess had
failed to exhaust his state remedies. See
28 U.S.C. sec.2254(b)(1)(A). The court
declined to issue a certificate of ap-
pealability and certified that the appeal
is in bad faith, so that all appellate
fees must be prepaid. Despite Newlin v.
Helman, 123 F.3d 429, 437-38 (7th Cir.
1997), which holds that a collateral
attack on a prison administrator’s deci-
sion is a "civil action" for purposes of
the plra, in none of the five cases did
the district court attempt to collect
filing fees from the prisoner’s trust
account under 28 U.S.C. sec.1915(b).

  Moran, Johnson, Paulk, and Paul ask us
to issue certificates of appealability so
that they may proceed on appeal. Spiess
wants both a certificate of appealability
and an order permitting him to proceed in
forma pauperis. Two opinions released
after the decisions under review affect
these requests.

  Lee v. Clinton, 209 F.3d 1025 (7th Cir.
2000), holds that an appeal in a frivo-
lous suit cannot be "in good faith" under
sec.1915(a)(3), because "good faith" must
be viewed objectively. Because the dis-
trict judges believed all five suits to
be frivolous, all five appeals should
have been certified as not in good faith,
and prepayment of all appellate fees
should have been required.

  Part II.B of Walker v. O’Brien, No. 96-
4010 (7th Cir. June 22, 2000), issued
contemporaneously with this opinion,
holds that state prisoners who desire to
protest actions by prison administrators,
and who are entitled to collateral review
(an important qualification), must meet
conditions laid down by sec.2254. Part
III of Walker holds that no petition for
a writ of habeas corpus is a "civil ac-
tion" for purposes of sec.1915(b), over-
ruling Part III of Newlin. The fee-col-
lection mechanism of the plra therefore
does not apply to any of these cases.
(For the same reason, sec.1915(g) would
not preclude a court from excusing the
prepayment of the filing fees in the
district court and the court of appeals
in a case properly filed as a collateral
attack.) Finally, Part IV of Walker holds
that state prisoners require certificates
of appealability only when they contest
their convictions or sentences; prisoners
who contest prison discipline (for exam-
ple, the deprivation of good-time cred-
its) may appeal without them. Thus none
of our five appellants requires a certif-
icate of appealability.

  This procedural victory gets them no
further, however, because none of these
five cases is a proper collateral attack.
Pischke holds that state prisoners who
want to challenge transfers to out-of-
state prisons must use sec.1983. Moran,
Johnson, Paulk, and Paul contend that
they have new arguments, but none of
these undercuts Pischke. Prisoners who
want to be confined in one state rather
than another are not demanding immediate
(or earlier) release and therefore must
use sec.1983; they are not entitled to
seek collateral relief under either sec.-
2241 or sec.2254. Spiess, who wants to
challenge the procedures used for parole-
release decisions, does not even attempt
to argue that he has new arguments that
would avoid this circuit’s cases requir-
ing such arguments to be presented under
sec.1983. See, e.g., Clark v. Thompson,
960 F.2d 663 (7th Cir. 1992); Huggins v.
Isenbarger, 798 F.2d 203 (7th Cir. 1986).

  For most purposes, the line between the
domain of collateral review and that of
sec.1983 is simple. State prisoners who
want to challenge their convictions,
their sentences, or administrative orders
revoking good-time credits or equivalent
sentence-shortening devices, must seek
habeas corpus, because they contest the
fact or duration of custody. See, e.g.,
Preiser v. Rodriguez, 411 U.S. 475 (1973-
); Edwards v. Balisok, 520 U.S. 641 (199-
7). State prisoners who want to raise a
constitutional challenge to any other
decision, such as transfer to a new pris-
on, administrative segregation, exclusion
from prison programs, or suspension of
privileges, must instead employ sec.1983
or another statute authorizing damages or
injunctions--when the decision may be
challenged at all, which under Sandin v.
Conner, 515 U.S. 472 (1995), and Meachum
v. Fano, 427 U.S. 215 (1976), will be
uncommon. See also Wallace v. Robinson,
940 F.2d 243 (7th Cir. 1991) (en banc);
Higgason v. Farley, 83 F.3d 807 (7th Cir.
1996). Legal rules, like physical surfac-
es, cause diffraction at the edges, see
Graham v. Broglin, 922 F.2d 379, 381 (7th
Cir. 1991); Thurman v. Gramley, 97 F.3d
185, 187 (7th Cir. 1996), but the excep-
tions (like the scattering of light) may
be ignored for most practical purposes.
Prisoners who follow the rule stated in
this paragraph rarely will go wrong;
those who ignore it rarely will go right.
Our five appellants ignored this line of
demarcation.

  The district judges resisted the tempta-
tion to "convert" the prisoners’ actions
into sec.1983 suits because, as we ob-
served in Pischke and its predecessors,
actions under the plra and the aedpa have
different procedural requirements and
different potential consequences. All
four suits concerning transfers were
dismissed outright, and properly so. All
four judgments are summarily affirmed. We
recognize that two procedural assumptions
behind this conclusion are incompatible
with Montez v. McKinna, 208 F.3d 862
(10th Cir. 2000), which held that sec.22-
41 may be used to challenge transfers to
out-of-state prisons, and that prisoners
who employ sec.2241 in such cases need
certificates of appealability. But these
aspects of Montez are incompatible not
only with Pischke but also with Parts
II.B and IV of Walker. Moran, Johnson,
Paulk, and Paul are beneficiaries of the
difference between Walker and Montez, for
they have obtained appellate decisions
even though they could not establish, as
sec.2253(c)(2) requires, "a substantial
showing of the denial of a constitutional
right." See Slack v. McDaniel, 120 S. Ct.
1595, 1603-04 (2000).

  This does not end matters, however,
because Pischke warned prisoners that any
similar objection to transfer to private-
ly run, out-of-state prisons would be
frivolous. See also, e.g., Olim v. Wakin-
ekona, 461 U.S. 238 (1983); Stanley v.
Litscher, No. 99-3764 (7th Cir. May 16,
2000), slip op. 3. Filing a frivolous
sec.1983 action as a petition for a writ
of habeas corpus avoids sec.1915(b) and
(g), but it does not make the action any
the less frivolous; to the contrary, it
is more frivolous, because it is abusive
procedurally as well as substantively.
Before filing their appeals, these pris-
oners not only knew about Pischke but
also had been informed by the district
judges that their efforts to avoid Pisch-
ke are unavailing. Prisoners who play
games to avoid the plra should not expect
courts to cooperate.

  All four suits arising out of the trans-
fers and, more importantly now, all four
appeals, are frivolous. Moreover, because
these appeals are not in good faith for
purposes of sec.1915(a)(3), we revoke the
orders permitting the appellants to pro-
ceed in forma pauperis. The filing and
docket fees for appeal must be paid in
full, and failure to do so will be han-
dled under the approach of Support Sys-
tems International, Inc. v. Mack, 45 F.3d
185 (7th Cir. 1995), as Part II of Newli-
n, 123 F.3d at 436-37, describes. (This
portion of Newlin is unaffected by either
Walker or Lee.) Because both the proceed-
ings in the district court and the ap-
peals are frivolous, each of these plain-
tiffs has accumulated two "strikes" for
purposes of sec.1915(g): any frivolous
suit or appeal by a prisoner counts, even
though only in a future "civil action or
appeal [of] a judgment in a civil action"
must a prisoner who has "struck out"
prepay the full filing fees.

  As for Spiess, who launched a collateral
attack on the procedures used to deny his
application for release on parole: once
again sec.1983 should have been used.
Spiess does not seek release from custo-
dy; he wants reconsideration of his ap-
plication using different procedures.
Claims of this kind that have reached the
Supreme Court have uniformly been handled
under sec.1983. See, e.g., Board of Par-
dons v. Allen, 482 U.S. 369 (1987); Gree-
nholtz v. Inmates of Nebraska Penal Com-
plex, 442 U.S. 1 (1979). Clark and Huggi-
ns, our own opinions on the subject, also
say that challenges to procedures em-
ployed to consider applications for pa-
role are civil actions under sec.1983 and
not collateral attacks under sec.2241 and
sec.2254, unless the prisoner contends
that application of his preferred proce-
dures would have led to his immediate
release. The district court therefore
should not have dismissed the sec.2241
action as premature, inviting Spiess to
file another after exhausting state reme-
dies; it should have dismissed the peti-
tion with prejudice on the ground that
sec.1983 provides the exclusive remedy.
Of course, Spiess faces obstacles under
sec.1983 too. For one thing, exhaustion
of administrative remedies now is re-
quired in prisoners’ sec.1983 suits. See
42 U.S.C. sec.1997e(a); Perez v. Wiscon-
sin Department of Corrections, 182 F.3d
532 (7th Cir. 1999). For another, the due
process clause has nothing to say about
parole-release decisions unless states
have conferred entitlements sufficiently
definite to count as "liberty" or "prop-
erty." Greenholtz; Jago v. Van Curen, 454
U.S. 14 (1981). Our examination of Wisco-
nsin’s parole-release system in Felce v.
Fiedler, 974 F.2d 1484, 1491-92 (7th Cir.
1992), led us to say that prisoners who
have served two-thirds of their terms
have such an entitlement; other prisoners
may have no more than a hope or desire,
which Greenholtz holds is insufficient to
create a liberty or property interest.
Perhaps Wisconsin’s system has changed
since 1992; but if it has not, then any
sec.1983 suit Spiess may file would be
frivolous.

  The five applications for certificates
of appealability are dismissed as unnec-
essary. The judgment of the district
court in Spiess’s case is vacated, and
the matter is remanded with instructions
to dismiss the collateral attack as im-
proper, but without prejudice to a civil
action under sec.1983. (Spiess’s applica-
tion for leave to proceed in forma paupe-
ris is denied, however, for he had no
hope of success on the merits or even of
obtaining a remand for decision on the
merits. His appeal was not in good faith,
and Spiess owes the entire fee under the
procedures of Newlin.) The other four
judgments are affirmed, two strikes are
assessed against each appellant, and the
appellate fees promptly must be paid in
full.
