Laxson v. Lingreg et al

Filing 13

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Christine M. Arguello on 7/21/14. 8 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action is denied as moot, and no certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01603-BNB
LLOYD HARVEY LAXSON,
Applicant,
v.
LINGREG,
BRUNELL, and
TIME COMP.,
Respondents.

ORDER OF DISMISSAL

Applicant, Lloyd Harvey Laxson, is a prisoner in the custody of the Colorado
Department of Corrections at the Buena Vista Correctional Complex in Buena Vista,
Colorado. Mr. Laxson 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) making vague and
conclusory allegations regarding the computation of his sentence and medical
treatment. On June 10, 2014, Magistrate Judge Craig B. Shaffer entered an order
directing Mr. Laxson to file an amended application for a writ of habeas corpus that
names a proper Respondent and that clarifies the claims he is asserting. Magistrate
Judge Shaffer advised Mr. Laxson that he may not assert his medical treatment claims
in a habeas corpus action and 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). Magistrate Judge Shaffer also noted 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). On June 20, 2014, Mr. Laxson filed an amended Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 7).
The Court must construe the amended application liberally because Mr. Laxson
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. Laxson still
fails to provide a clear statement of any federal constitutional claims. Mr. Laxson does
provide a description of the nature of this action that indicates he intends to challenge
the computation of his sentence. (See ECF No. 7 at 2.) However, Mr. Laxson does not
assert any specific claims for relief in the amended application. Mr. Laxson does not
identify which of his constitutional rights allegedly have been violated and he does not
allege any facts that might support a cognizable constitutional claim. Therefore, the
action will be dismissed without prejudice for failure to comply with a court order.
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
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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. 7) are denied and the action is dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr.
Laxson failed to comply with a court order. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. It is
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 the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 8) is
DENIED as moot.
DATED at Denver, Colorado, this

21st

day of

July

, 2014.

BY THE COURT:

s/Christine M. Arguello
CHRISTINE M. ARGUELLO
United States District Judge, for
LEWIS T. BABCOCK, Senior Judge
United States District Court

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