Worosello v. No Defendants Named
Filing
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ORDER Directing Plaintiff To Cure Deficiencies, by Magistrate Judge Boyd N. Boland on 03/26/13. (nmmsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00777-BNB
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
JAMES K. WOROSELLO,
Plaintiff,
v.
[NO DEFENDANTS NAMED],
Defendants.
ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES
Plaintiff has submitted two documents titled “Prisoner’s Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915" (ECF No.s 3 and 4), along with
another document that appears to be part of a Complaint. The submitted documents
are deficient, for the reasons discussed below. Moreover, the Court has reviewed Mr.
Worosello’s filings and cannot determine whether he is asserting civil rights claims or
habeas corpus claims.
Mr. Worosello challenges the basis for his state court criminal convictions, but he
seeks only monetary relief and not release from custody. “The 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). By contrast, a civil rights claim pursuant to 28
U.S.C. § 1343 and 42 U.S.C. § 1983 challenges the conditions of a prisoner’s
confinement and seeks monetary and injunctive relief. See McIntosh v. United States
Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997). Mr. Worosello will be directed to
file either an Application for Habeas Corpus Relief Pursuant to 28 U.S.C. § 2254 or a
Prisoner Complaint on the court-approved form. Additionally, Mr. Worosello will be
directed to file a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 in a Habeas Corpus Action or Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 on the court-approved form. Alternatively, if Mr.
Worosello files a habeas action, he may instead pay the $5.00 filing fee, or, if he files a
Prisoner Complaint (civil rights action), he may choose to pay the $350.00 filing fee.
Accordingly, it is
ORDERED that Mr. Worosello cure the deficiencies designated above by doing
one of the following: (1) filing an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 and either paying the $5.00 filing fee, or filing a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action
within thirty (30) days from the date of this order; or, (2) filing a Prisoner Complaint and
either paying the $350.00 filing fee, or filing a Prisoner’s Motion and Affidavit for Leave
to Proceed Pursuant to 28 U.S.C. § 1915 within thirty (30) days from the date of this
order. It is
FURTHER ORDERED that Mr. Worosello shall obtain the court-approved
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, Prisoner
Complaint, Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915 in a Habeas Corpus Action, and Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 forms (with the assistance of his case manager
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or the facility’s legal assistant), along with the applicable instructions, at
www.cod.uscourts.gov. It is
FURTHER ORDERED that if within the time allowed Mr. Worosello fails to cure
the designated deficiencies the action will be dismissed without prejudice and without
further notice. The dismissal shall be without prejudice.
DATED March 26, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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