Holz v. Oliver

Filing 4

ORDER Directing Plaintiff to Cure Deficiencies, by Magistrate Judge Boyd N. Boland on 1/29/2014. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00243-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.
J. OLIVER, Warden,
Respondent.

ORDER DIRECTING PLAINTIFF 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 tates Penitentiary, High
Security, in Florence, Colorado. He initiated this action by submitting pro se an
Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 titled “Application
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2242” (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).
After review pursuant to D.C.COLO.LCivR 8.1(b), the Court has determined that
the submitted documents are deficient as described in this order.
Mr. Holtz complains about his prison diet. The Court finds that Mr. Holz is
asserting civil rights claims rather than habeas corpus claims. “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). 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, not the
basis for his conviction and sentence on criminal charges.
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
(2)
is missing affidavit
is missing certified copy of prisoner's trust fund statement for the 6-month
(3)
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
is not on proper form (must submit the court’s current form revised
(7)
X
10/01/12 with Authorization and Certificate of Prison Official and complete
all pages of the form)
(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)
Only an original has been received.
(10)
X
other: The § 1915 motion and affidavit and certificate showing prison
account balance are necessary only if the $400.00 filing fee is not paid in
full in advance.
Complaint, Petition or Application:
(11)
is not submitted
is not on proper form (must use the court’s Prisoner Complaint form)
(12)
X
(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
(16)
An original and a copy have not been received by the court. Only an
original has been received.
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(17)
(18)
(19)

Sufficient copies to serve each defendant/respondent have not been
received by the court.
names in caption do not match names in text
other:

Accordingly, it is
ORDERED that the action is construed as a civil rights action filed pursuant to
Bivens rather than as a habeas corpus action pursuant to 28 U.S.C. § 2241. It is
FURTHER ORDERED that the clerk of the Court is directed to correct the nature
of suit on its docketing records. It is
FURTHER ORDERED that Plaintiff, 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
further notice.
DATED January 29, 2014, at Denver, Colorado.
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge

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