Sines v. Caley

Filing 17

ORDER Directing Applicant to File Second and Final Amended Application; ORDER 16 MOTION Request to Permit the Applicant to Amend the 2241 Now Pending Before the Court is DENIED as unnecessary, by Magistrate Judge Boyd N. Boland on 7/10/2013. (skl) Modified on 7/10/2013 to include text re 16 (skl).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01230-BNB
BEAUX GORDON SINES,
Applicant,
v.
ED CALEY, Warden, Trinidad Correctional Facility,
Respondent.

ORDER DIRECTING APPLICANT TO FILE
SECOND AND FINAL AMENDED APPLICATION

Applicant, Beaux Gordon Sines, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the correctional facility in
Trinidad, Colorado. On May 9, 2013, he filed a pro se application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1) suing John Kammerzell, United
States Marshal, as Respondent. He has paid the $5.00 filing fee for a habeas corpus
action.
On May 10, 2013, Magistrate Judge Boyd N. Boland ordered Mr. Sines within
thirty days to cure certain deficiencies, including but not limited to submitting an
amended application that named as Respondent his current warden, superintendent,
jailer, or other custodian, because John Kammerzell was not a proper party to this
action. On May 15, 2013, Mr. Sines submitted an amended application (ECF No. 5)
that again sued Mr. Kammerzell. On May 31 and June 3, 2013, he submitted two
addenda (ECF Nos. 8 and 9) to the amended application. On June 4, 2013, he
submitted an amendment (ECF No. 10) to the amended application informing the Court

that he still wanted to name Mr. Kammerzell as Respondent in this action but that Ed
Caley, the warden of the Trinidad Correctional Facility where he is incarcerated, also
could be named as Respondent. On July 5, 2013, Mr. Sines submitted a motion (ECF
No. 16) again asking to amend the amended application.
The Court must construe Mr. Sines’ filings liberally because he is a pro se
litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). The Court, however, should not act as a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, Mr. Sines will be
ordered to file an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
on the proper, Court-approved form.
Mr. Sines already has been instructed that the only proper respondent to a
habeas corpus action is the applicant's custodian. See 28 U.S.C. §§ 2242, 2243; Rules
2(a) and 1(b) of the Rules Governing Habeas Corpus Cases Under Section 2254
(Section 2254 Rules); Braden v. 30th Judicial Circuit Ct. of Ky., 410 U.S. 484, 494-95
(1973) Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995). Rule 1(b) of the Section
2254 Rules applies the Section 2254 Rules to the instant action. Therefore, because
John Kammerzell is not a proper party to this action, the proper party, Ed Caley, the
warden of the Trinidad Correctional Facility where Mr. Sines is incarcerated, has been
substituted as the proper Respondent. See Mitchell v. Story, 1995 WL 610879, *3 at
n.5 (10th Cir. 1995). The caption to this order reflects that substitution. In the second
and final amended application he will be directed to file, Mr. Sines must name the
proper party as Respondent.
The Federal Rules of Civil Procedure apply to applications for habeas corpus
2

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). 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 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. Sines must “specify all [available] grounds for relief” and must “state the facts
supporting each ground.” 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). Therefore, the second and final amended application Mr. Sines will be directed
to file must allege in a clear and concise manner both the § 2241 claims he seeks to
raise and the specific facts to support each asserted claim. The Court will not consider
any claims raised in separate attachments, amendments, supplements, motions,
addenda, or other documents not included in the second and final amended application.

Finally, Rule 10.1 of the Local Rules of Practice for this Court requires that all
papers filed in cases in this Court be double-spaced and legible. See D.C.COLO.LCivR
3

10.1E. and G. The second and final amended application Mr. Sines will be directed to
file, whether handwritten or typed, shall be double-spaced and legible, in capital and
lower-case letters, in compliance with D.C.COLO.LCivR 10.1E. and G. Accordingly, it is
ORDERED that the motion (ECF No. 16) filed on July 5, 2013, again asking to
amend the amended application is denied as unnecessary. It is
FURTHER ORDERED that within thirty days from the date of this order
Applicant, Beaux Gordon Sines, file a second and final amended Application for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 that complies with this order. It is
FURTHER ORDERED that Mr. Sines shall obtain the Court-approved form for
filing an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (with the
assistance of his case manager or the facility’s legal assistant), along with the
applicable instructions, at www.cod.uscourts.gov, and shall use that form in submitting
the second and final amended application. It is
FURTHER ORDERED that if Mr. Sines fails within the time allowed to file the
second and final amended application as directed, the action will be dismissed without
further notice.
DATED July 10, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

4