Thornton v. Daniels

Filing 9

ORDER Directing Applicant to File Amended Application, by Magistrate Judge Boyd N. Boland on 6/12/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00960-BNB
HAROLD THORNTON,
Applicant,
v.
C. DANIELS, Warden,
Respondent.

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION

Mr. Thornton is in the custody of the Federal Bureau of Prisons and is
incarcerated at the United States Penitentiary in Florence, Colorado. He has filed an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. # 7]. Mr.
Thornton has been granted leave to proceed pursuant to 28 U.S.C. § 1915.
The Court must construe the Application liberally because Mr. Thornton 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, Mr. Thornton will be ordered to file an amended Application.
The Application is deficient because it appears to contain a claim that is not
cognizable under the federal habeas corpus statutes. In his second claim for relief, Mr.
Thornton asserts that his Eighth Amendment right to be free from cruel and unusual
punishment was violated when prison officials failed to protect him from being attacked
by another inmate. Claims challenging an inmate’s conditions of confinement are not

cognizable under 28 U.S.C. § 2241. See McIntosh v. United States Parole Comm’n,
115 F.3d 809, 812 (10th Cir. 1997); see also Preiser v. Rodriguez, 411 U.S. 475, 499,
(1973) (“[A] § 1983 action is a proper remedy for a ... state prisoner who is making a
constitutional challenge to the conditions of his prison life, but not to the fact or length of
his custody.”). Instead, such claims brought by a federal prisoner must be asserted in a
Prisoner Complaint filed pursuant to Bivens v. Six Unknown Named Agents, 403 U.S.
388 (1971). See id.; see also Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir.
2011) (“It is well-settled law that prisoners who wish to challenge only the conditions of
their confinement, as opposed to its fact or duration, must do so through civil rights
lawsuits filed pursuant to 42 U.S.C. § 1983 or Bivens . . .–not through federal habeas
proceedings,” citing McIntosh). Accordingly, it is
ORDERED that Mr. Thornton file, within thirty days from the date of this
Order, an amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 that does not include any claim challenging the conditions of his confinement.
Applicant may assert his Eighth Amendment claim in a separate action pursuant to
Bivens on the court-approved Prisoner Complaint form. It is
FURTHER ORDERED that Mr. Thornton shall obtain the court-approved
Application 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

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FURTHER ORDERED that, if Mr. Thornton fails to comply with this Order within
the time allowed, the action will be dismissed without further notice.
DATED June 12, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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