Crownhart v. John W. Suthers
ORDER to File a Pre-Answer/Preliminary Response. ORDER denying as inappropriate 8 Rule 21 Motion to the Courts, by Magistrate Judge Boyd N. Boland on 1/23/2013.(skl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03053-BNB
EARL J. CROWNHART,
JOHN W. SUTHERS, The Attorney General of the State of Colorado,
ORDER TO FILE A PRE-ANSWER/PRELIMINARY RESPONSE
Applicant, Earl J. Crownhart, is held at the Colorado Mental Health Institute in
Pueblo, Colorado. Mr. Crownhart initiated this action by filing a pleading titled, “Title 16
Article 4 Part 2 Release of Bail From Bond” on November 19, 2012. In the pleading, Mr.
Crownhart asked this Court to order his release based on his own personal
recognizance or on bail. Magistrate Judge Boyd N. Boland reviewed the pleading and
instructed Mr. Crownhart to file his claims on a proper Court-approved form used in
filing 28 U.S.C. § 2241 actions. Subsequently, Mr. Crownhart filed several documents
and additional pleadings. None of the filings were submitted on a Court-approved form.
Not until December 26, 2012, did he file his claims on a Court-approved form used in
filing a 28 U.S.C. § 2241 action. Then, however, on January 14, 2013, Mr. Crownhart
filed his claims on Court-approved form used in filing 28 U.S.C. § 2254 actions.
A review of all the pleadings Mr. Crownhart has submitted to the Court indicates
he is challenging the Colorado Department of Human Services’ petition for long-term
care and treatment under Colo. Rev. Stat. § 27-65-109. ECF No. 18. The Department
of Human Services entered the petition in the Pueblo Combined Court on December 20,
2012. Id. Applicant has been under short-term treatment at the Mental Health Institute
since July 22, 2012. Id.
As part of the preliminary consideration of the Application in this case, the Court
has determined that a limited Response is appropriate. The procedural basis for Mr.
Crownhart’s current placement at the Mental Health Institute is not clear. Respondent is
directed to brief this issue.
Respondent also is directed pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts to address the affirmative defenses of
timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court remedies that
apply to either § 2254 actions or § 2241 actions. If Respondent does not intend to raise
either of these affirmative defenses, Respondent must notify the Court of that decision
in the Response. Respondent may not file a dispositive motion as a Preliminary or PreAnswer Response, or an Answer, or otherwise address the merits of the claims in
response to this Order.
In support of the Response, Respondent should attach as exhibits all relevant
portions of the state court record, including but not limited to copies of all documents
demonstrating whether this action is filed in a timely manner and/or whether Mr.
Crownhart has exhausted state court remedies.
Mr. Crownhart may reply to the Response and provide any information that might
be relevant to the classification of this action and the one-year limitation period under 28
U.S.C. § 2244(d) and/or the exhaustion of state court remedies. Mr. Crownhart also
should include information relevant to equitable tolling, specifically as to whether he has
pursued his claims diligently and whether some extraordinary circumstance prevented
him from filing a timely habeas action in this Court as is necessary in response to
Respondent’s briefing regarding the classification of this action.
The Court also notes that Mr. Crownhart names as a respondent the medical
doctor overseeing his care and treatment at the Mental Health Institute. Because the
law is well-established that the only proper respondent to a habeas corpus action is the
habeas applicant’s custodian, see 28 U.S.C. § 2242; Rules 2(a) and 1(b), Rules
Governing Section 2254 Cases in the United States District Courts, and Harris v.
Champion, 51 F.3d 901, 906 (10th Cir. 1995), the caption of this Order does not list Dr.
Arif Kamram. Accordingly, it is
ORDERED that the only properly named Respondent for the purpose of service
at this time is John W. Suthers, The Attorney General of the State of Colorado. It is
FURTHER ORDERED that within twenty-one days from the date of this
Order Respondent shall file a Pre-Answer or Preliminary Response that complies with
this Order. It is
FURTHER ORDERED that within twenty-one days of the filing of the
Response Applicant may file a Reply, if he desires. It is
FURTHER ORDERED that if Respondent does not intend to raise either of the
affirmative defenses of timeliness or exhaustion of state court remedies, Respondent
must notify the Court of that decision in the Response. It is
FURTHER ORDERED that “Rule 21. Motion to the Courts,” ECF No. 8, is denied
Dated: January 23, 2013
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge
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