Holz v. Daniels

Filing 5

ORDER by Magistrate Judge Boyd N. Boland on 10/09/13, Directing Applicant To Cure Deficiencies. ORDERED that the action is construed as a civil rights action filed pursuant to Bivens and § 1331, rather than a habeas corpus action filed pursuant to 28 U.S.C. § 2241. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

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

ORDER DIRECTING APPLICANT TO CURE DEFICIENCIES

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. The
Court has reviewed the habeas corpus application and finds that Mr. Holz is 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. “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). It is well
established in the 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). Generally, a federal prisoner’s
challenge to his conditions of confinement 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). Mr. Holz is challenging the conditions of his
confinement.
As part of the Court’s review pursuant to D.C.COLO.LCivR 8.2, the Court has
determined that the submitted documents are deficient as described in this order. Mr.
Holz will be directed to cure the following if he wishes to pursue his claims. Any papers
that Mr. Holz files in response to this order must include the civil action number on this
order.
28 U.S.C. § 1915 Motion and Affidavit:
(1)
is not submitted
is missing affidavit
(2)
(3)
is missing certified copy of prisoner's trust fund statement for the 6-month
period immediately preceding this filing
(4)
is missing certified statement showing current balance in prison account
(5)
is missing required financial information
(6)
is missing an original signature by the prisoner
(7)
X
is not on proper form (must use and complete the court’s current form
revised 10/01/12 with Authorization and Certificate of Prison Official)
(8)
names in caption do not match names in caption of complaint, petition or
habeas application
An original and a copy have not been received by the court.
(9)
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(10)

X

Only an original has been received.
other: Mr. Holz must pay $400.00 (the $350.00 filing fee plus a $50.00
administrative fee) if he does not file a 28 U.S.C. § 1915 motion.

Complaint, Petition or Application:
is not submitted
(11)
(12)
X
is not on proper form (must use the court’s Prisoner Complaint form)
(13)
is missing an original signature by the prisoner
(14)
is missing page nos.
(15)
uses et al. instead of listing all parties in caption
An original and a copy have not been received by the court. Only an
(16)
original has been received.
(17)
Sufficient copies to serve each defendant/respondent have not been
received by the court.
(18)
names in caption do not match names in text
(19)
other:
Accordingly, it is
ORDERED that the action is construed as a civil rights action filed pursuant to
Bivens and § 1331, rather than a habeas corpus action filed pursuant to 28 U.S.C. §
2241. It is
FURTHER ORDERED that Applicant, Timothy Edward Holz, cure the
deficiencies designated above within thirty days from the date of this order. Any
papers that Mr. Holz files in response to this order must include the civil action number
on this order. It is
FURTHER ORDERED that Mr. Holz shall obtain the court-approved forms for
filing a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915 and Prisoner Complaint (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
FURTHER ORDERED that, if Mr. Holz fails to cure the designated deficiencies
within thirty days from the date of this order, the action will be dismissed without
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further notice.
DATED October 9, 2013, at Denver, Colorado.
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge

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