Miller v. Biker et al

Filing 13

ORDER Of Dismissal. The Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (ECF No. 7 ) that Plaintiff, Gary Robert Miller, submitted pro se on May 14, 2014, is denied without prejudice. The Prisoner Complaint (ECF No. 1 ) and the action are dismissed with prejudice. Leave to proceed in forma pauperis on appeal is denied without prejudice. By Judge Lewis T. Babcock on 6/9/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01204-BNB
GARY ROBERT MILLER,
Plaintiff,
v.
FREMONT COUNTY CO, SHERIFF JAMES BIKER,
FREMONT COUNTY, CO, DETENTION CENTER, and
JUDGE DAVID THORSON,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Gary Robert Miller, was incarcerated at the El Paso County Criminal
Justice Center in Colorado Springs, Colorado, when he initiated this action by
submitting pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. §§ 1983,
1985, and 1986, and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to
28 U.S.C. § 1915 (ECF No. 2). He since has informed the Court that he is a prisoner in
the custody of the Colorado Department of Corrections who currently is incarcerated at
the Denver Reception and Diagnostic Center. See ECF No. 9.
Mr. Miller has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 in this action. Pursuant to § 1915(e)(2)(B), the Court must dismiss the
action if the claims Mr. Miller is asserting are frivolous. A legally frivolous claim is one in
which the plaintiff asserts the violation of a legal interest that clearly does not exist or
asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S.

319, 327-28 (1989).
On April 30, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No.
4) directing Mr. Miller to show cause why the Prisoner Complaint should not be
dismissed because he complained about the execution of his sentence. He contended
he should have been released from jail effective January 31, 2013, pursuant to a state
court order. As a result, he appeared to be asserting habeas corpus claims rather than
civil rights claims.
In the April 30 order to show cause, Magistrate Judge Boland pointed out 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). Generally, a state
prisoner’s challenge to his conditions of confinement is cognizable under 42 U.S.C. §
1983 and 28 U.S.C. § 1343. See Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir.
2011).
Magistrate Judge Boland informed Mr. Miller he may pursue civil rights claims
challenging the conditions of his confinement in the instant action. The magistrate
judge pointed out that if Mr. Miller intended to challenge the execution of his sentence,
he must file a separate habeas corpus action pursuant to 28 U.S.C. § 2241. “In this
circuit, a prisoner who challenges the fact or duration of his confinement and seeks
immediate release or a shortened period of confinement must do so through an
application for habeas corpus.” Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir.
2012) (citing McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812 (10th Cir.
1997)); see also Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011).
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On May 14, 2014, Mr. Miller submitted a Petition for a Writ of Habeas Corpus
Under 28 U.S.C. § 2241 (ECF No. 7). The habeas corpus petition, which is not on the
Court-approved form for filing an Application for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241, will not be considered in the instant action because the April 30 showcause order specifically informed Mr. Miller that he must file a separate habeas corpus
action if he wanted to pursue habeas corpus claims. Therefore, the habeas corpus
petition (ECF No. 7) he filed in the instant action will be denied without prejudice so that
Mr. Miller may pursue habeas corpus claims in a separate action.
Also on May 14, Mr. Miller submitted a document titled “Claims and Cause to be
applied to 14 cv 01204 BNB 42 U.S.C. 1983, 1985, 1986 as well as 28 U.S.C. 2241
included herein” (ECF No. 8), apparently in response to the April 30 order to show
cause. The Court must construe Mr. Miller’s filings liberally because he is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the Prisoner Complaint will be dismissed as legally frivolous.
Because Mr. Miller’s habeas corpus petition will be denied without prejudice so
that he may pursue habeas corpus claims in a separate action, the Court need not and
will not address Mr. Miller’s “claims and cause” document as it applies to his habeas
corpus petition. The Court will address the “claims and cause” document as it applies to
his civil rights claims only.
Despite how he characterizes the “claims and cause” document, Mr. Miller is
challenging the execution of his sentence by challenging Defendants’ act of holding him
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in custody beyond the date he believes they were allowed by law to do so. He also
asks for declaratory and injunctive relief, as well as money damages.
To the extent Mr. Miller is challenging the execution of his sentence and seeking
habeas corpus relief, his claims may not be raised in a civil rights action pursuant to 42
U.S.C. § 1983. See Palma-Salazar, 677 F.3d at 1035 (discussing distinction between
habeas corpus claims pursuant to 28 U.S.C. § 2241 and conditions of confinement
claims raised in civil rights actions). Mr. Miller also may not challenge the execution of
his sentence pursuant to other civil rights statutes such as §§ 1985 or 1986. See
Martínez v. Ensor, 958 F. Supp. 515, 517-18 (D. Colo. 1997).
To the extent Mr. Miller is seeking other relief with respect to his claims, the
claims are barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). In short, a
civil rights action filed by a state prisoner “is barred (absent prior invalidation) – no
matter the relief sought (damages or equitable relief), no matter the target of the
prisoner’s suit (state conduct leading to conviction or internal prison proceedings) – if
success in that action would necessarily demonstrate the invalidity of confinement or its
duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Mr. Miller has failed to show
cause why his Prisoner Complaint should not be dismissed.
Finally, Mr. Miller is suing an improper party. His claims against the Honorable
David Thorson, a Fremont County district judge, are subject to dismissal based on the
doctrine of judicial immunity. Judges are absolutely immune from a civil rights suit
based on actions taken in their judicial capacity, unless they acted in the clear absence
of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman,
435 U.S. 349, 356-57 (1978); Hunt v. Bennett, 17 F.3d 1263, 1266-67 (10th Cir. 1994).
4

Judicial immunity “is not overcome by allegations of bad faith or malice,” Mireles, 502
U.S. at 11, or an assertion that the judge acted in error or exceeded his authority, see
Stump, 435 U.S. at 1105. Further, a judge acts in the clear absence of all jurisdiction
only when he “acts clearly without any colorable claim of jurisdiction.” Snell v. Tunnell,
920 F.2d 673, 686 (10th Cir. 1990). Mr. Miller does not state any facts to indicate that
Judge Thorson was acting outside of his judicial capacity.
For these reasons, the instant action will be dismissed as legally frivolous.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 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 Plaintiff files a notice of appeal he also must pay the full $505.00 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 Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241
(ECF No. 7) that Plaintiff, Gary Robert Miller, submitted pro se on May 14, 2014, is
denied without prejudice so that Mr. Miller may pursue habeas corpus claims in a
separate action. It is
FURTHER ORDERED that the Prisoner Complaint (ECF No. 1) and the action
are dismissed with prejudice as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).
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.
DATED at Denver, Colorado, this

9th

day of

June

, 2014.

BY THE COURT:

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

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