Bruce v. Berkebile

Filing 8

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/25/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02493-BNB
ANTOINE BRUCE,
Applicant,
v.
DAVID BERKEBILE,
Respondent.

ORDER OF DISMISSAL

Applicant, Antoine Bruce, is in the custody of the United States Bureau of Prisons
(BOP) and currently is incarcerated at the United States Penitentiary in Florence,
Colorado. On September 12, 2013, Applicant, acting pro se, filed an Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. After review of the Application,
Magistrate Judge Boyd N. Boland entered an order, on September 18, 2013, directing
Applicant to file an Amended Application.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts requires he go beyond notice pleading, see Blackledge v. Allison, 431 U.S. 63,
75 n.7 (1977), and that naked allegations of constitutional violations devoid of factual
support are not cognizable in a federal habeas action, see Ruark v. Gunter, 958 F.2d
318, 319 (10th Cir. 1992) (per curiam). In keeping with Rule 4, Applicant was directed
to identify the incident report number for each disciplinary action that he is challenging
and to state how his rights were violated during each associated proceeding. The Court

finds Magistrate Judge Boland correctly determined that Applicant should amend the
Application.
On September 20, 2013, Applicant filed a Motion to Appoint Counsel. Magistrate
Judge Boland denied the Motion because the issues are not complex, the merits of the
claims are questionable, and Applicant has the ability to ask prison staff for the incident
report number for each disciplinary action and to state how his rights were violated in
each of the associated disciplinary proceedings. The Court has reviewed the Motion to
Appoint Counsel and finds Magistrate Judge Boland correctly denied the Motion.
Nothing Applicant submitted in support of the Motion meets his burden to
convince the Court that the legal and factual nature of the claims are so complex he
requires counsel and that he lacks the ability to investigate the facts and present his
claims. See Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)
(quoting McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)).
Other BOP prisoners have submitted an “Inmate Discipline Data Chronological
Record” in support of their § 2241 actions. See Bacote v. Berkebile, No. 13-cv-02663BNB, ECF No. 3 at 6-49 (D. Colo Filed Sept. 30, 2013). The record is a data printout
that includes a prisoner’s disciplinary report history and provides the report number and
a description of the offense. Applicant, therefore, has the ability to obtain the numbers
of the incident reports at issue.
Although the Court does not disregard Applicant’s mental illness, nothing in the
Motion to Appoint Counsel indicates that he is incapable of investigating the facts and
presenting his claims. The attachments to the Motion, including the psychological
assessment and the correspondence from Applicant’s attorney to the warden, indicate
2

that Applicant is capable of pursuing a GED, with certain accommodations, and utilizing
the BOP administrative remedies procedure. See Mot., ECF No. 6, at 4 and 9. These
determinations do not support a finding that Applicant is unable to investigate facts and
present his claims.
Applicant now has failed to communicate with the Court since September 20,
2013, and to comply with Magistrate Judge Boland’s September 18, 2013 Order within
the time allowed. Therefore, the action will be dismissed.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not 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 Applicant files a notice of appeal he must pay the full $455 appellate filing fee
or file a motion to proceed in forma pauperis in the United States Court of Appeals for
the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Application is denied and the action is dismissed without
prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to file an Amended Application and
for failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 25th day of

October

, 2013.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
3