Main v. Plughe et al

Filing 6

ORDER Directing Applicant to File Amended Pleading, by Magistrate Judge Boyd N. Boland on 2/21/12. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00204-BNB
DR. ROY J. MAIN,
Applicant,
v.
WARDEN PAMELA PLUGHE,
CASE MANAGER HANEY, and
ATTORNEY GENERAL’S OFFICE,
Respondents.

ORDER DIRECTING APPLICANT TO FILE AMENDED PLEADING

Applicant is a prisoner in the custody of the Colorado Department of Corrections
at the Sterling Correctional Facility in Sterling, Colorado. Applicant has filed pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. The court must
construe the application liberally because Applicant is not represented by an attorney.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). However, the court should not be an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, Applicant will be
ordered to file an amended pleading if he wishes to pursue his habeas corpus claims in
this action.
The court has reviewed the application and finds it is deficient because Applicant
is asserting a number of claims that are not habeas corpus claims. In fact, it appears
that only the first claim in the application, in which Applicant alleges he was not
recommended for release to community corrections in October 2011, appears to raise

an issue that may be cognizable in a habeas corpus action. Applicant’s remaining three
claims challenge restrictions on the reading material he is allowed to receive and his
eligibility for a transfer to a lower security prison. These conditions of confinement
claims are not appropriate in a habeas corpus action because “[t]he essence of habeas
corpus is an attack by a person in custody upon the legality of that custody, and . . . the
traditional function of the writ is to secure release from illegal custody.” See Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973). An individual in state custody who seeks to
challenge the conditions of his or her confinement generally must seek relief in a civil
rights action pursuant to 42 U.S.C. § 1983. See, e.g., Richards v. Bellmon, 941 F.2d
1015, 1018 (10th Cir. 1991).
Applicant may not avoid the filing fee requirements applicable to a civil rights
action under § 1983 by raising conditions of confinement claims in a habeas corpus
action. Therefore, Applicant will be directed to file an amended application that raises
only habeas corpus claims. If Applicant wishes to pursue any claims challenging the
conditions of his confinement, he must raise those claims in a separate action.
Applicant also is advised that he must identify clearly the specific constitutional claims
he is raising in this habeas corpus action and he must allege specific facts in support of
those claims. Naked allegations of constitutional violations are not cognizable in a
habeas corpus action. See Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (per
curiam). Accordingly, it is
ORDERED that Applicant file an amended application that complies with this
order within thirty (30) days from the date of this order. It is
FURTHER ORDERED that Applicant shall obtain the court-approved Application
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for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 form (with the assistance of
his case manager or the facility’s legal assistant), along with the applicable instructions,
at www.cod.uscourts.gov. It is
FURTHER ORDERED that if Applicant fails to file an amended application that
complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED February 21, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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