Womack v. Berkebile

Filing 4

ORDER Directing Applicant to Cure Deficiencies and File Amended Application, by Magistrate Judge Boyd N. Boland on 7/10/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01902-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.)
DAVID LEE WOMACK,
Applicant,
v.
D. BERKEBILE,
Respondent.

ORDER DIRECTING APPLICANT TO CURE DEFICIENCIES AND
FILE AMENDED APPLICATION

Applicant, David Lee Womack, is a prisoner in the custody of the Federal Bureau
of Prisons at the United States Penitentiary, Administrative Maximum, in Florence,
Colorado. He has submitted pro se an Application for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (ECF No. 1) and a certificate showing current balance in prison
account (ECF No. 2). As part of the court’s 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. Applicant will be directed to cure the following if he wishes to pursue any
claims in this court in this action. Any papers that Applicant files in response to this
order must include the civil action number on this order.
28 U.S.C. § 1915 Motion and Affidavit:
is not submitted
(1)
X
(2)
is missing affidavit
(3)
is missing certified copy of prisoner’s trust fund statement for the 6-month

(4)
(5)
(6)
(7)
(8)
(9)

X

period immediately preceding this filing
is missing certificate showing current balance in prison account
is missing required financial information
is missing an original signature by the prisoner
is not on proper form (must use the court’s current form)
names in caption do not match names in caption of complaint, petition or
habeas application
other: § 1915 motion and affidavit and certificate showing current balance
in prison account only are necessary if $5.00 filing fee is not paid in
advance

Complaint, Petition or Application:
is not submitted
(10)
(11)
is not on proper form
(12)
is missing an original signature by the prisoner
(13)
is missing page nos.
(14)
uses et al. instead of listing all parties in caption
(15)
names in caption do not match names in text
(16) __
addresses must be provided for all defendants/respondents in “Section A.
Parties” of complaint, petition or habeas application
(17)
other:
The Court must construe the habeas corpus application liberally because Mr.
Womack is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however, should not act as
a pro se litigant’s advocate. See Hall, 935 F.2d at 1110.
Applicant, who asserts he is mentally ill, contends that his due process rights
have been violated because prison staff have failed to conduct a mental evaluation
pursuant to 28 C.F.R. § 541.6 in each of his disciplinary proceedings. Applicant has
submitted a list of at least thirty-five incident reports that have been filed against him
during 2014. See ECF No. 1 at 6. The Court has reviewed the list and finds that
Applicant fails to clarify which reports resulted in the forfeiture or disallowance of good
conduct time.
This Court reviews the application under “the power inherent in every court to
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control of the disposition of the causes on its docket.” Landis v. N. Am. Co., 299 U.S.
248, 254 (1936). It is unreasonable that this Court should consider the thirty-five
disciplinary proceedings without further clarification by Applicant. Id.; Martinez v.
Internal Revenue Serv., 744 F.2d 71, 73 (10th Cir. 1984) (Courts have “inherent power .
. . to regulate their docket, promote judicial efficiency, and deter frivolous filings.”).
Applicant, therefore, will be ordered to file an amended application for the reasons
stated below.
An application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 “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.” Preiser v. Rodriguez, 411
U.S. 475, 484 (1973); see also McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811
(10th Cir. 1997). Habeas corpus relief is warranted only if Applicant “is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3).
“I]t is well settled that an inmate’s liberty interest in his earned good time credits
cannot be denied without the minimal safeguards afforded by the Due Process Clause
of the Fourteenth Amendment.” Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir.
1996) (internal quotation marks omitted); see also Howard v. U.S. Bureau of Prisons,
487 F.3d 808, 811 (10th Cir. 2007) (citing Mitchell in the context of a federal prisoner
challenging a prison disciplinary conviction). However, the United States Constitution
guarantees due process only when a person is to be deprived of life, liberty, or property.
See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). Applicant does not
allege that he was deprived of life, liberty, or property at any of his disciplinary hearings,
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although he appears to challenge the hearing procedure itself. He was entitled to
procedural protections at the disciplinary hearings only if he was deprived of a liberty
interest. The existence of a liberty interest depends upon the nature of the interest
asserted. See Sandin v. Conner, 515 U.S. 472, 480 (1995). A prisoner is not entitled to
any procedural protections in the absence of a grievous loss. See Morrissey v. Brewer,
408 U.S. 471, 481 (1972).
To the extent the results of Mr. Womack’s disciplinary proceedings affected the
execution or length of his sentence, he may have a liberty interest in the recalculation of
his sentence, and he must be afforded the minimal safeguards provided for under the
Due Process Clause of the Fourteenth Amendment. Howard v. U.S. Bureau of Prisons,
487 F.3d 808, 811 (10th Cir. 2007) (involving a federal inmate and violations of due
process in his disciplinary proceeding) (citing Mitchell v. Maynard, 80 F.3d 1433, 1444
(10th Cir. 1996).
Mr. Womack fails to clarify which, if any, of his disciplinary actions affected the
execution or length of his sentence. A due process claim regarding disciplinary actions
that failed to affect the execution or length of his sentence is subject to dismissal on the
merits. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (followed 28 U.S.C.
§ 2254(b)(2) in a § 2241 proceeding to allow a denial on the merits even if a claim is
unexhausted). Applicant, therefore, is directed to amend the application, and identify
only the disciplinary proceedings that affect the forfeiture or disallowance of good
conduct time. Applicant further is directed to identify the disciplinary actions by report
number in the application form, or attached pages, and state specifically how his due
process rights were violated in each of the actions.
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Accordingly, it is
ORDERED that Applicant, David Lee Womack, cure the deficiencies designated
above and file an amended Application for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 within thirty (30) days from the date of this order. Any papers that
Applicant files in response to this order must include the civil action number on this
order. It is
FURTHER ORDERED that Applicant 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 in a Habeas Corpus Action and an Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (with the assistance of his case manager or the facility’s
legal assistant), along with the applicable instructions, at www.cod.uscourts.gov, and
use those forms in curing the designated deficiencies. It is
FURTHER ORDERED that, if Applicant fails to cure the designated deficiencies
and file an amended application as directed within thirty (30) days from the date of
this order, the action will be dismissed without further notice. The dismissal shall be
without prejudice. It is

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DATED July 10, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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