                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                            File Name: 04a0413p.06

                         UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                       X
                               Petitioner-Appellant, -
 ERIC MARTIN,
                                                        -
                                                        -
                                                        -
                                                            No. 03-1510
          v.
                                                        ,
                                                         >
 WILLIAM OVERTON,                                       -
                              Respondent-Appellee. -
                                                       N
                        Appeal from the United States District Court
                     for the Western District of Michigan at Marquette.
                  No. 02-00204—Robert Holmes Bell, Chief District Judge.
                                        Argued: September 22, 2004
                                  Decided and Filed: December 1, 2004
                     Before: SILER, BATCHELDER, and ROGERS, Circuit Judges.
                                            _________________
                                                 COUNSEL
ARGUED: Joshua S. Goldwert, WILMER, CUTLER, PICKERING, HALE & DORR, Washington, D.C.,
for Appellant. ON BRIEF: Joshua S. Goldwert, Howard M. Shapiro, WILMER, CUTLER, PICKERING,
HALE & DORR, Washington, D.C., for Appellant.
                                            _________________
                                                OPINION
                                            _________________
        SILER, Circuit Judge. Petitioner Eric Martin appeals the recharacterization, without notice, of his
pro se petition for medical treatment as an improper habeas corpus petition. Under the rule of In re Shelton,
295 F.3d 620 (6th Cir. 2002), however, Martin should have been afforded the opportunity to withdraw his
petition prior to its recharacterization as a petition under 28 U.S.C. § 2254, or the district court should have
dismissed his petition without prejudice to his potential 42 U.S.C. § 1983 claims. For the following reasons,
we REVERSE and REMAND.
                                              BACKGROUND
        Martin, a Michigan state prisoner, filed a pro se complaint in December 2002, in the United States
District Court for the Western District of Michigan. Currently, Martin is incarcerated at Baraga Maximum
Correctional Facility in Baraga, Michigan. He was previously housed at the Southern Michigan
Correctional Facility in Jackson, Michigan. In April 2002, while at the Jackson facility, Martin underwent
a bladder operation. His treating physician, Dr. Pinson, ordered a follow-up visit around May 18, 2002.


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No. 03-1510             Martin v. Overton                                                              Page 2


After the surgery, but before Martin could be reexamined by Dr. Pinson, Martin was transferred to the
Baraga facility.
        After he failed to attend his follow-up appointment, Martin filed a petition, styled as “Petition For
Writ of Habeas Corpus” pursuant to 28 U.S.C. § 2241, seeking his return to the Jackson facility for
treatment with Dr. Pinson. The district court interpreted, and recharacterized, the petition as a habeas corpus
action pursuant to 28 U.S.C. § 2254. However, the court determined that the substance of Martin’s petition
was the alleged deprivation of adequate medical treatment, a subject more appropriately reached under 42
U.S.C. § 1983. The district court then applied Rule 4 of the Rules Governing § 2254 Cases in the District
Courts and dismissed the petition with prejudice.
        Martin appealed the dismissal. The appeal, interpreted as an application for a certificate of
appealability, was granted as to 1) whether in light of In re Shelton, the district court erred by
recharacterizing Martin’s habeas corpus petition as brought under 28 U.S.C. § 2254 without giving Martin
prior notice and an opportunity to withdraw the petition; and 2) whether the district court erred by not
liberally construing the pro se petition as a civil rights complaint brought pursuant to 42 U.S.C. § 1983.
                                        STANDARD OF REVIEW
        “This court reviews de novo the legal conclusions of the district court in a habeas corpus decision.”
Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). Thus, the standard of review for summary dismissal
of a habeas corpus petition under Rule 4 of the Rules Governing § 2254 Cases is also de novo. See Scott
v. Collins, 286 F.3d 923, 927 (6th Cir. 2002). However, this matter is not entirely a dismissal of a § 2254
habeas petition.
        The pleadings of pro se petitioners are held to less stringent standards than those prepared by
attorneys, and are liberally construed when determining whether they fail to state a claim upon which relief
can be granted. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th
Cir. 1991). Treating the district court’s dismissal of the petition as a Federal Rule of Civil Procedure
12(b)(6) dismissal of the § 1983 claim, rather than the Rule 4 dismissal of the § 2254 claim, the standard
of review is de novo. Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996).
                                               DISCUSSION
A.     Recharacterization of the Petition without Notice
        As filed, Martin’s petition for transfer to the Jackson facility for medical treatment was a habeas
corpus petition pursuant to 28 U.S.C. § 2241. The district court determined that the claims asserted were
more properly reached under 42 U.S.C. § 1983. The court then recharacterized the petition as one brought
pursuant to 28 U.S.C. § 2254 and subsequently dismissed it with prejudice, as the claims asserted were
inappropriate under § 2254. The recharacterization of the petition as a § 2254 petition may bar Martin from
asserting a habeas challenge to his state sentence at a later date, due to the limitations of 28 U.S.C. § 2244.
This possibility raises the first issue here, an apparently novel one in this court: does the rule of In re
Shelton, 295 F.3d 620, 622 (6th Cir. 2002), which requires notice before a petition is recharacterized as a
§ 2255 petition, apply to petitions recharacterized as § 2254 petitions? We answer yes.
        The 28 U.S.C. § 2244(b) prohibition on “second or successive” § 2254 petitions is virtually identical
to that placed on § 2255 filings. Compare 28 U.S.C. § 2244(b) with 28 U.S.C. § 2255. Indeed, “there is
no meaningful way to distinguish between § 2254 and § 2255 with respect to the restrictions imposed by
the AEDPA.” Mason v. Myers, 208 F.3d 414, 418 (3d Cir. 2000); see also Steverson v. Summers, 258 F.3d
520, 523 n.4 (6th Cir. 2001) (“Title 28 U.S.C. § 2255 is essentially equivalent to § 2254, the former being
a postconviction remedy for federal prisoners and the latter available to ‘a person in custody pursuant to the
judgment of a State court.’”). As a result, the Second and Third Circuits have begun imposing notice rules
similar to the rule of In re Shelton to § 2254 recharacterizations. See Mason, 208 F.3d at 418 (applying the
No. 03-1510              Martin v. Overton                                                                 Page 3


rule of United States v. Miller, 197 F. 3d 644, 652 (3d Cir. 1999)); Cook v. N.Y. State Division of Parole,
321 F.3d 274, 282 (2d Cir. 2003) (adopting rule of Adams v. United States, 155 F.3d 582, 584 (2d Cir.
1998)).
        In re Shelton holds, particularly regarding pro se litigants, that:
                “[D]istrict courts should not recharacterize a motion purportedly made under
                some other rule as a motion made under § 2255 unless (a) the movant, with
                knowledge of the potential adverse consequences of such recharacterization,
                agrees to have the motion so recharacterized, or (b) the court finds that,
                notwithstanding its designation, the motion should be considered as made
                under § 2255 because of the nature of the relief sought, and offers the movant
                the opportunity to withdraw the motion rather than have it so
                recharacterized.” Unless such a warning is provided, a re-characterized
                § 2255 motion must not be counted against the prisoner for purposes of the
                bar on successive motions.
In re Shelton, 295 F.3d at 622 (internal citation omitted). “[C]onverting a pro se habeas petition filed under
a statute not subject to the severe ‘second or successive’ restrictions of section 2244 (for state prisoners) or
section 2255 (for federal prisoners) could cause the petitioner to forfeit unnecessarily and unintentionally
a meritorious claim,” Cook, 321 F.3d at 282, making notice prior to recharacterization necessary. Thus,
following the lead of the Second and Third Circuits, the district court should have given Martin notice of
the recharacterization.
        Martin was not apprised by the court of its intention to recharacterize the petition. Nor was he
afforded the opportunity to withdraw his motion and submit it as a § 1983 claim, rather than have it
recharacterized. The record does not indicate if Martin would have been eligible to raise a § 2254 challenge
to his sentence. Regardless, due to the failure of the district court to provide notice regarding the
recharacterization, any subsequent § 2254 motion filed by Martin should be treated as the first such motion.
See Castro v. United States, 124 S.Ct. 786, 792 (2003) (adopting the rule of In re Shelton and United States
v. Miller); In re Shelton, 295 F.3d at 622 .
B.      Construction of the Pro Se Complaint
         Martin originally, and incorrectly, asserted in his petition that it was brought under § 2241. He did
not challenge the terms or validity of his state prison term. Rather, he sought a transfer to a different prison
facility for the purpose of medical treatment and civil damages resulting from the alleged delay and denial
of that treatment. The district court recognized this, stating, “Petitioner in this case appears to be asserting
the violation of a right secured by the federal Constitution or laws by state prison officials. Such a claim
is properly brought pursuant to 42 U.S.C. § 1983.” The district court then dismissed under Rule 4 of the
Rules Governing § 2254 Cases in the District Courts, which allows the summary dismissal of a petition if
“it plainly appears from the face of the petition ... that the petitioner is not entitled to relief in the district
court.” Rule 4. This raises the second issue, also rare in this court: should a pro se motion be
recharacterized by the court from an apparent habeas petition to a civil rights claim? Here, we answer no.
         The leniency granted to pro se petitioners, which Martin would stretch to its fullest, is not boundless.
Pro se plaintiffs are treated to less stringent standards, but “they are not automatically entitled to take every
case to trial.” Pilgrim v. Littlefield , 92 F.3d 413, 416 (6th Cir. 1996). Traditionally the “leniency standard”
has still required basic pleading standards. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Arguably,
hanging the legal hat on the correct peg is such a standard, and “[l]iberal construction does not require a
court to conjure allegations on a litigant’s behalf.” Erwin v. Edwards, 22 Fed.Appx. 579, 580 (6th Cir.
2001) (dismissing a § 1983 suit brought as a § 2254 petition.)
No. 03-1510             Martin v. Overton                                                              Page 4


        Courts have recently dismissed cases similar to this one. In Erwin, 22 Fed.Appx. at 579-80, this
Circuit concluded “that the district court did not err in dismissing the § 2254 petition for lack of subject
matter jurisdiction, rather than construing the filing as a § 1983 suit.” Similar “habeas” petitions have been
dismissed without prejudice to a petitioner’s potential § 1983 claims, allowing the prisoner to later bring
any civil rights claims properly. See Stewart v. Tristan, 2002 U.S.Dist. LEXIS 3626, at *6 (N.D. Cal. 2002)
(Petition dismissed “without prejudice to petitioner filing a civil rights complaint under 42 U.S.C. § 1983.”);
but see McGore v. Gundy, 2000 U.S. Dist. LEXIS 11107 (W.D. Mich. 2000) (ordering the conversion of
§ 2254 petition to a § 1983 action where petitioner was obviously familiar with § 1983 proceedings but
purposefully filed action incorrectly, and ordering petitioner to file an amended complaint).
         The uncounseled citation of 28 U.S.C. § 2241 was an obvious mistake, yet the original dismissal of
his habeas corpus petition was proper, as no grounds for habeas relief were established. And, although
Martin is correct that substance, rather than labels, should control in legal proceedings, he does bear some
responsibility for identifying his own claims before the court. Therefore, following the reasoning of Erwin,
the district court should have dismissed the petition without prejudice to allow Martin to raise his potential
civil rights claims properly as a § 1983 action.
       The decision of the district court is REVERSED and REMANDED for further proceedings in
accordance with this opinion.
