Albright v. State of Colorado et al

Filing 54

ORDER dismissing this action without prejudice, denying leave to proceed in forma pauperis on appeal, and denying the motions for refund 46 and 50 , by Judge Lewis T. Babcock on 7/26/13. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02174-BNB
GREGORY DEAN ALBRIGHT,
Applicant,
v.
RODGER WERHOLTZ, Colorado Department of Corrections Interim
Executive Director, and
JOHN SUTHERS, the Attorney General of the State of Colorado,
Respondents.

ORDER OF DISMISSAL

Plaintiff, Gregory Dean Albright, was a prisoner in the custody of the Colorado
Department of Corrections (DOC) incarcerated at the Arkansas Valley Correctional
Facility in Crowley, Colorado, when on August 16, 2012, he attempted to initiate this
action by filing pro se a document titled “Preamble of Complaint and Notification of
Intended Action” (ECF No. 1) asserting jurisdiction pursuant to 42 U.S.C. §§ 1983,
1985, and 1986; and 28 U.S.C. §§ 1343, 1443, 2241, 2254, and 2201. According to the
DOC website, www.doc.state.co.us and Mr. Albright’s notice of change of address filed
on May 1, 2013 (ECF No. 41), he currently is on parole.
In an order filed on August 20, 2012, Magistrate Judge Boyd N. Boland directed
Mr. Albright to cure the deficiencies in this action by obtaining (with the assistance of his
case manager or the facility’s legal assistant) the Court-approved forms used in filing
whatever type of action he was trying to initiate, together with the applicable
instructions, which were and still are available at www.cod.uscourts.gov. The August 20

order warned Mr. Albright that he may not assert civil rights claims and habeas corpus
claims in the same action. See ECF No. 3 at 1.
On October 9, 2012, after being granted an extension of time in which to cure the
designated deficiencies, Mr. Albright paid the then-$350.00 filing fee (ECF No. 7). On
October 22, 2012, he filed a sixty-three-page Complaint using only the cover page to
the Court-approved complaint form for nonprisoner cases (ECF No. 12 at 1), and a
forty-six-page pleading titled “Affidavit and Petition for Federal Intervention” (ECF No.
13).
On November 9, 2012, Mr. Albright filed two documents, titled “Affidavit and
Petition for Recusal of Magistrate [Judge] Boland” (ECF No. 14) and “Notification to the
Court of the Clerk Interference of the Court Process” (ECF No. 15). On November 16,
2012, he filed three letters, one each to then-Chief Judge Wiley Y. Daniel (ECF No. 16),
the Clerk of the Court (ECF No. 17), and Magistrate Judge Boland (ECF No. 18).
On November 26, 2012, Magistrate Judge Boland entered an order (ECF No. 19)
denying the recusal petition, advising Mr. Albright that Local Rule 77.2 of the Local
Rules of Practice for this Court prohibits ex parte communications, such as letters, with
judicial officers, and informing him that:
(1) he may not file two different pleadings (ECF Nos.
12 and 13) simultaneously in the same action but instead
must present all of his claims and allegations in a single
pleading;
(2) to the extent he seeks to challenge his parole
revocation or obtain his release from incarceration his sole
federal remedy is a writ of habeas corpus after he has
exhausted state court remedies;
(3) he must initiate the separate action by filing a
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habeas corpus application on the proper form; and
(4) he must file in the instant action within thirty days
a single amended Prisoner Complaint on the Court-approved
form that sues the proper parties, complies with the pleading
requirements of Rule 8 of the Federal Rules of Civil
Procedure, and alleges the personal participation of each
named Defendant.
ECF No. 19 at 6-11.
On December 13, 2012, after being granted an extension of time in which to
comply with the directives of the November 26 order, Mr. Albright filed an objection
(ECF No. 22) to the November 26 order. On December 28, 2012, the Court entered an
order (ECF No. 23) overruling the objection, directing Mr. Albright to file a single
amended complaint that complied with the November 26 order if he wished to pursue
civil rights claims, giving Mr. Albright the option to file a single amended pleading
submitted on the Court-approved form for filing an Application for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 if he wished to challenge his conviction and
sentence by asserting habeas corpus claims instead, and noting that if he did decide to
pursue habeas corpus claims, the Court would make a determination when the curative
pleading is filed as to the then-$350.00 filing fee Mr. Albright paid to pursue this action.
Lastly, the December 28 order warned Mr. Albright that if he failed to file an amended
pleading as directed within the time allowed, the Complaint (ECF No. 12) and the action
would be dismissed without further notice.
On January 16, 2013, Mr. Albright appealed (ECF No. 24) from the December 28
order. On February 7, 2013, Magistrate Judge Boland entered a minute order (ECF No.
32) allowing Mr. Albright thirty days in which to file an amended complaint that complied
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with the November 26 order. On February 26, 2013, the United States Court of Appeals
for the Tenth Circuit dismissed Mr. Albright’s appeal for lack of jurisdiction. See ECF
No. 34.
Since the dismissal of his appeal, Mr. Albright has filed numerous documents, a
number of which requested and were granted extensions of time to file an amended
complaint that complied with the November 26 order. See ECF Nos. 36, 37, 39, 40, 41,
42, 43, 44. On May 29, 2013, Mr. Albright filed another objection (ECF No. 45) again
asking for the recusal of Magistrate Judge Boland, which this Court previously had
overruled on December 28, 2012 (ECF No. 23). Also on May 29, he filed a petition
(ECF No. 46) for refund of the $345.00 he paid over the $5.00 filing fee for a habeas
corpus action, a notification (ECF No. 47) that he currently was on parole and was going
to submit an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, and
an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 48).
Because he failed to sign the documents and/or certificates of service for ECF Nos. 45,
46, 47, and 48, he filed a petition (ECF No. 49) to correct the error on June 18, 2013,
and resubmitted documents 45, 45, 47, and 48 as ECF Nos. 50 (petition for refund of
the $345.00 he paid over the $5.00 filing fee for a habeas corpus action), 51 (notification
that he currently was on parole and was going to submit an Application for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254), 52 (objection again asking for the
recusal of Magistrate Judge Boland), and 53 (amended Application for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254).
The Court has reviewed the amended Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 53), and finds that it fails to comply with the
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directives of the order of November 26, 2012, for an amended complaint, and the order
of December 28, 2012, overruling Mr. Albright’s objections to the November 26 order
and specifically informing him that if he wanted to assert habeas corpus instead of civil
rights claims, he should file a habeas corpus application pursuant to 28 U.S.C. § 2254
and not assert civil rights claims in the same application. The November 26 order lays
out for Mr. Albright in detail the differences among § 1983 civil rights claims and §§
2254 and 2241 habeas corpus claims.
The amended habeas corpus application (ECF No. 53) Mr. Albright filed on June
18, 2013, again asserts a purported § 1983 claim (ECF No. 53 at 24) after the Court
repeatedly has directed Mr. Albright not to assert both habeas corpus and civil rights
claims in the same action. Secondly, the forty-nine-page amended application is
verbose, vague, and conclusory and, as a result, fails to comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure, as discussed in detail in
the November 26 order. See ECF No. 19 at 7-9.
The Federal Rules of Civil Procedure apply to applications for habeas corpus
relief. See Fed. R. Civ. P. 81(a)(2); Browder v. Director, Dep’t of Corrections, 434 U.S.
257, 269 (1978); Ewing v. Rodgers, 826 F.2d 967, 969-70 (10th Cir. 1987). As Mr.
Albright was informed in the November 26 order (ECF No. 19 at 7-8), pursuant to Fed.
R. Civ. P. 8(a), a pleading “must contain (1) a short and plain statement of the grounds
for the court’s jurisdiction, . . . (2) a short and plain statement of the claim showing that
the pleader is entitled to relief, and (3) a demand for the relief sought.” Fed. R. Civ. P.
8(d)(1) provides that “[e]ach allegation must be simple, concise, and direct.” Taken
together, Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity
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by the federal pleading rules. Prolix, vague, or unintelligible pleadings violate the
requirements of Rule 8.
Furthermore, pursuant to Rules 2(c)(1) and 2(c)(2) of the Section 2254 Rules,
Mr. Albright must “specify all [available] grounds for relief” and he must “state the facts
supporting each ground.” The Court notes that these habeas corpus rules are more
demanding than the rules applicable to ordinary civil actions, which require only notice
pleading. See Mayle v. Felix, 545 U.S. 644, 655 (2005). Naked allegations of
constitutional violations are not cognizable under § 2254. See Ruark v. Gunter, 958
F.2d 318, 319 (10th Cir. 1992) (per curiam). The amended application Mr. Albright filed
on June 18 fails to meet these high standards.
Mr. Albright does not appear to demonstrate serious interest in litigating the
merits of his claims. Rather, he appears more interested in compounding this case and
defying court orders by asserting both habeas corpus and civil rights claims in the same
action. In fact, Mr. Albright has extended the case for almost one year since filing, and
he now is on parole. Given Mr. Albright’s refusal to comply with the directives of the
November 26 and December 28 orders, no part of the $350.00 Mr. Albright tendered to
initiate this lawsuit will be returned to him. The amended application will be denied for
failure to comply with the orders of November 26 and December 28.
Finally, the Court certifies pursuant to § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Albright files a notice of appeal he also must pay the full $455.00
appellate filing fee or file a motion to proceed in forma pauperis in the United States
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Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
Accordingly, it is
ORDERED that the amended Application for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254 (ECF No. 53) is denied and the action dismissed without prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of
Applicant, Gregory Dean Albright, to file within the time allowed an amended Application
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 that complied with the orders
of November 26, 2012 (ECF No. 19), and December 28, 2012 (ECF No. 23). It is
FURTHER ORDERED that the motions for refund (ECF Nos. 46 and 50) are
denied. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that any other pending motions are denied as moot.
DATED at Denver, Colorado, this 26th day of

July , 2013.

BY THE COURT:

s/ Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court

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