Hayter v. Denham

Filing 23

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/12/14. 12 Emergency Petition for an Injunction and/or Sanctions Upon Non-Party at Fault Robert French Violating Court Order of June 11th, 2014 is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01540-BNB
DARWIN HAYTER,
Applicant,
v.
DEBORAH DENHAM – Warden FCI Englewood,
Respondent.

ORDER OF DISMISSAL

Applicant, Darwin Hayter, is a prisoner in the custody of the Federal Bureau of
Prisons at the Federal Correctional Institution at Englewood, Colorado. Mr. Hayter
initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (ECF No. 1) challenging a decision denying him placement in a
halfway house. As relief he asked to be released immediately to a halfway house in
Denver, Colorado. (See ECF No. 1 at 5.) On July 3, 2014, Magistrate Judge Craig B.
Shaffer entered an order directing Mr. Hayter to file an amended application for a writ of
habeas corpus that clarifies the federal constitutional habeas corpus claims he is
asserting in this action. Magistrate Judge Shaffer advised Mr. Hayter that habeas
corpus relief is warranted only if he “is in custody in violation of the Constitution or laws
or treaties of the United States,” 28 U.S.C. § 2241(c)(3), that the pleading rules
applicable to a habeas corpus action are more demanding than the rules applicable to
ordinary civil actions, which require only notice pleading, see Mayle v. Felix, 545 U.S.

644, 655 (2005), and that naked allegations of constitutional violations are not
cognizable in a habeas corpus action, see Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir.
1992) (per curiam). Magistrate Judge Shaffer also noted that Mr. Hayter improperly had
filed several documents in this action asserting claims for damages against individual
prison officials. Magistrate Judge Shaffer specifically advised Mr. Hayter that he may
not pursue his claims for damages in a habeas corpus action and that, if he wishes to
pursue any claims for damages, he must do so in a separate civil rights action. On July
21, 2014, Mr. Hayter filed an Amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 16).
The Court must construe the amended application liberally because Mr. Hayter 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 Court will dismiss the action.
The Court has reviewed the amended application and finds that Mr. Hayter still
fails to provide a clear statement of his claims in this action. Although Mr. Hayter
indicates in claims one and three in the amended application that he has been denied
due process, he fails to allege specific facts in support of the due process claims that
demonstrate his constitutional rights have been violated. Mr. Hayter does not identify
his second claim in the amended application as a constitutional claim and he also fails
to allege specific facts in support of that claim that demonstrate his constitutional rights
have been violated.
As noted above, Mr. Hayter was advised that he must allege specific facts in
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support of his constitutional claims and that naked allegations of constitutional violations
are not sufficient in a habeas corpus action. Despite these instructions, Mr. Hayter has
failed to file an amended application that clarifies and provides fair notice of the claims
he is asserting.
Mr. Hayter also failed to comply with the directive that he may not seek damages
as relief in a habeas corpus action. This is so because “[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). However, despite this directive, the only relief Mr.
Hayter requests in the amended application is an award of damages.
The action will be dismissed because Mr. Hayter has failed to comply with the
order directing him to file an amended application. 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 Applicant files a
notice of appeal he also must pay the full $505 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 habeas corpus application (ECF No. 1) and the amended
habeas corpus application (ECF No. 16) are denied and the action is dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr.
Hayter failed to comply with a court order. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
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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 the “Emergency Petition for an Injunction and/or
Sanctions Upon Non-Party at Fault Robert French Violating Court Order of June 11th,
2014” (ECF No. 12) is DENIED as moot because Applicant paid the $5.00 filing fee for
this habeas corpus action. It is
FURTHER ORDERED that all other pending motions are DENIED as moot.
DATED at Denver, Colorado, this 12th

day of

August

, 2014.

BY THE COURT:

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

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