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April 26, 2000


The opinion of the court was delivered by: McCLURE, District Judge.



On December 29, 1999, petitioner Samuel O. Koch, then an inmate at the State Correctional Institution at Waymart, Wayne County, Pennsylvania, commenced this action with the filing of a petition for a writ of habeas corpus pursuant to (according to at least one of the documents filed) 28 U.S.C. § 2241. As will be discussed below, the allegations of the petition are not precise, but the crux of the claim is Koch's desire to prevent his incarceration at the Schuylkill County Prison because he has not received adequate medical treatment at that facility in the past.

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), which the President signed into law on April 24, 1996. AEDPA made sweeping changes to significant areas of the law, see, e.g., AEDPA Title I (Habeas Corpus Reform); Title IV (Terrorist and Criminal Alien Removal and Exclusion),*fn1 and the courts have been attempting to deal with the fallout, in the form of litigation, ever since.

In adapting to AEDPA, the courts at times have themselves made procedural changes. An example is the Second Circuit's decision in Adams v. United States, 155 F.3d 582 (1998) (per curiam), holding that a district court should provide certain prophylactic warnings to a movant under 28 U.S.C. § 2255 before construing an inartfully pled motion or petition by a pro se litigant as a proper § 2255 motion. That holding was adopted as the law of this circuit in United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and was expanded to cover petitions by state prisoners for writs of habeas corpus under 28 U.S.C. § 2254 in Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). As the Third Circuit explained in Miller, this action is necessary to protect a convicted person's right to present all of his or her claims to a federal court, a right which may be waived or forfeited inadvertently due to AEDPA's stringent limitations on time and successive motions or petitions. However, it also entails ending the practice of construing such motions or petitions liberally when they are filed pro se because that action, formerly favorable to the pro se litigant, now may have a seriously detrimental effect. Miller at 649.

While it may be that the practice of having trial judges educate litigants, pro se or otherwise, may be questioned, the Third Circuit apparently felt that these questions are outweighed by the potential unfairness and hardship which might otherwise result, and therefore determined that pro se movants under § 2255 and pro se petitioners under § 2254 are entitled to the notice described in further detail below. Also, any paper filed by a litigant which appears to be a motion, petition, or other pleading which should be read as a § 2255 motion or a § 2254 petition is entitled to notice that his or her pleading may be re-characterized before any action is taken.

As with AEDPA, however, the creation of this rule (in this district denominated "Miller notice," but presumably called "Adams notice" in the Second Circuit) has unintended consequences, of which this case is but one example. The problem here is that Koch filed a petition under 28 U.S.C. § 2241 which properly would be a § 2254 petition because he is a state prisoner, but actually should be a complaint under 42 U.S.C. § 1983 because he seeks injunctive, not habeas, relief. The question is whether a prisoner in this situation is entitled to Miller notice, and the permutations which arise from the potential actions by the court are rather confusing.



The petition filed by Koch consists of three documents. The first is captioned, "Petition for Writ of Habeas Corpus," followed by a large black mark covering language on what appears to be a pre-printed form. The form therefore appears to be either a standard form of petition or a document from other litigation being used for these purposes. The first line of this document states that the request for a writ of habeas corpus is made pursuant to 28 U.S.C. § 2241(c)(5), which authorizes writs of habeas corpus ad testificandum and ad prosequendum.*fn2 In that document, Koch requests that the warden of SCI-Waymart be required to produce him for trial.

The second document filed by Koch appears to be a form order granting the relief requested in the first document.*fn3

The third document is denominated "Petition for Writ of Habeas Corpus" and appears to be the actual pleading in the matter. The first two paragraphs are merely standard jury charges concerning consideration of the case as a matter between persons of equal standing and evidence by law enforcement personnel (adapted in this case to prison officials). The third paragraph is a standard jury instruction concerning the Eighth Amendment. These paragraphs have no substantive bearing on the merits of the petition for present purposes.

After a statement that "I will now define each element for you:" (again, apparently a jury instruction), Koch sets forth his factual allegations. They are as follows:

Koch, designated "Plaintiff" in the petition, will be returning to the Schuylkill County Prison to serve 18 months of incarceration as a result of a parole violation. At the time the petition was filed, Koch was incarcerated at SCI-Waymart, with a release date of April 11, 2000, which would be the expiration of his maximum sentence.

In October, 1994, Koch was incarcerated at the Schuylkill County Prison and suffered a fractured rib. The doctor who saw Koch diagnosed the injury as a rib contusion or bruise. Koch was discharged after 39 days and was examined immediately at the Pottsville Hospital and Warne Clinic. An x-ray revealed "a partially healing nondisplaced fracture of the left tenth rib posterolaterally associated with slight callus formation bridging the fracture site." Petition at 2 ¶ 4. No x-ray was taken at the Prison. Although the rib healed, Koch was forced to suffer extreme discomfort and was not provided a wrap to immobilize the rib, causing a risk of further serious injury.

No date is provided for a second incident alleged by Koch.*fn4 He complained to an unnamed person that he was not feeling well and asked to be taken to the hospital. He was told that the only way he would be leaving was in a body bag. Koch's condition worsened and he asked again to be taken to the hospital. He was told to stop crying about the matter. Koch then called his brother, who posted bail to take Koch to the Pottsville Hospital, where he was diagnosed with pneumonia.

According to Koch, his medical records would reflect these events.

At the time the petition was filed, Koch was to begin undergoing interferon injections for hepatitis at SCI-Waymart. He claims that a return to the Schuylkill County Prison would be detrimental to his health based on his prior experiences. Also, Koch has newspaper clippings which show that the Prison is having other, unspecified "problems" which warrant issuance of a temporary restraining order and a preliminary injunction to bar his return to the Prison.

In his ad damnum clause, Koch seeks only a hearing and a temporary restraining order and/or a preliminary injunction. Koch nowhere alleges that any conviction or the parole ...

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