Holz v. Daniels

Filing 11

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 11/15/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02716-BNB
TIMOTHY EDWARD HOLZ,
Applicant,
v.
CHARLES A. DANIELS, Warden,
Respondent.

ORDER OF DISMISSAL

Applicant, Timothy Edward Holz, is a prisoner in the custody of the Federal
Bureau of Prisons who currently is incarcerated at the United States Penitentiary, High
Security, in Florence, Colorado. He initiated this action by submitting pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) and
a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in
a Habeas Corpus Action (ECF No. 3) together with a certified account statement.
Magistrate Judge Boyd N. Boland reviewed the habeas corpus application and
determined Mr. Holz was asserting civil rights claims rather than habeas corpus claims.
Mr. Holz complains in the application that Respondents violated his equal protection and
due process rights by refusing to provide him with requested legal material (claim one)
and violated his Eighth Amendment rights by being deliberately indifferent to his safety
(claim two). For relief, he asks to be placed in a “suitable state prison facility that does
not suffer overcrowding issues” (ECF No. 1 at 17), among other relief.

On October 9, 2013, Magistrate Judge Boland entered an order (ECF No. 5)
directing Mr. Holz to cure certain enumerated deficiencies in the documents he filed.
Magistrate Judge Boland explained that “[t]he 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). He further explained it is well established in the United States Court of
Appeals for the Tenth Circuit (Tenth Circuit) that § 2241 is an improper vehicle for a
prisoner to challenge the conditions of his confinement. See McIntosh v. United States
Parole Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997). He pointed out that a federal
prisoner’s challenge to his conditions of confinement generally is cognizable under
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and 28 U.S.C. § 1331.
See Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011). Magistrate Judge
Boland noted that Mr. Holz is challenging the conditions of his confinement.
Magistrate Judge Boland directed Mr. Holz to submit his claims on a Prisoner
Complaint and file a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 for a Bivens action. The October 9 order directed Mr. Holz to obtain, with
the assistance of his case manager or the facility's legal assistant, the Court-approved
forms for filing a Prisoner Complaint and a Prisoner's Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915. The October 9 order warned Mr. Holz that, if he
failed to cure the designated deficiencies within thirty days, the action would be
dismissed without prejudice and without further notice.

Instead of curing the designated deficiencies as directed, Mr. Holz on October
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15, 2013, filed an interlocutory appeal (ECF Nos. 6, 7) from the October 9 order. On
October 22, 2013, the Tenth Circuit dismissed the appeal for lack of jurisdiction. ECF
No. 10 at 1.
Mr. Holz has failed within the time allowed to cure the designated deficiencies as
directed, or otherwise to communicate with the Court in any way. Therefore, the action
will be dismissed without prejudice for Mr. Holz's failure to cure the designated
deficiencies as directed within the time allowed, and for his failure to prosecute.
Finally, the Court certifies pursuant to § 1915(a)(3) that any appeal from this
order would not be 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 Mr. Holz files a notice of appeal he also must pay the full $455.00 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 action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure for the failure of Applicant, Timothy Edward
Holz, within the time allowed, to cure the deficiencies designated in the order to cure of
October 9, 2013, and for his failure to prosecute. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED November 15, 2013, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court

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