Vreeland, II v. Archuleta et al

Filing 41

ORDER. ORDERED that the Motion for Sanction, 37 , is stricken. ORDERED that the Motion to Substitute, 37 , is granted. David Zupan, the warden where Applicant now is housed, is substituted for Respondent Lou Archuleta, the warden where Applicant was housed prior to February 26, 2015. ORDERED that the Motion to Prohibit Further Transfer, 40 , is denied. Entered by Judge Philip A. Brimmer on 08/31/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02175-PAB
DELMART E.J.M. VREELAND, II,
Applicant,
v.
LOU ARCHULETA, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER

This matter comes before the Court on the Motion to Substitute One Nam ed
Party and for Sanction Against Respondent Lou Archuleta filed on August 7, 2015
[Docket No. 37] and the motion to prohibit further transfer set forth in Applicant’s Reply,
Docket No. 40, filed on August 24, 2015.
I. BACKGROUND
Applicant is in the custody of the Colorado Department of Corrections and
currently is housed at the Colorado Territorial Correctional Facility in Cañon City,
Colorado. Applicant, acting pro se, initiated this action by filing a 411-page Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, Docket No.1, challeng ing
the validity of his conviction and sentence in State of Colorado Criminal Case No.
04CR706. Magistrate Judge Boyd N. Boland reviewed the Application, determined that
Applicant had failed to comply with Fed. R. Civ. P. 8, and directed Applicant to file an
Amended Application. Magistrate Judge Boland also denied Applicant’s request to file

an Application that is in excess of thirty pages, with leave to refile once he has filed an
application that complies with Rule 8. Applicant filed an Amended Application on
September 29, 2014, but did not renew his request to submit an application in excess of
thirty pages.
Magistrate Judge Boland then directed Respondents to f ile a Pre-Answer
Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C.
§ 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A) if
Respondents intend to raise either or both of those affirmative defenses in this action.
After being granted an extension of time to respond, Respondents filed their PreAnswer Response, Docket No. 17, on October 30, 2014. Applicant also being granted
an extension of time, then filed a Reply, Docket No. 21, on December 22, 2014. On
January 7, 2015, Magistrate Judge Gordon P. Gallagher directed Applicant to show
cause why the Application should not be denied as a m ixed petition for failure to
exhaust state court remedies. Docket No. 22. After a request for an extension of time
to respond to the Order to Show Cause that was granted, and an entry by counsel who
also requested an extension of time to respond to the Order to Show Cause, Applicant
filed a Response on May 1, 2015. Docket No. 32. Respondents replied to Applicant’s
Response on May 19, 2015. Docket No. 34. Subsequently, the case was assigned to
a district judge for further review and remains pending.
II. MOTION TO SUBSTITUTE AND FOR SANCTION
On August 7, 2015, Applicant, through counsel, filed a “Motion to Substitute One
Named Party and for Sanction Against Respondent Lou Archuleta.” Docket No. 37.
The Court directed Respondents to respond to Applicant’s Motion, w hich they did on
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August 11, 2015. Docket No. 39. Applicant f iled a Reply on August 24, 2015. Docket
No. 40.
In the Motion to Substitute and for Sanction, Applicant argues that “Federal Rule”
is very clear that a habeas corpus petitioner may not be transferred from the location
where he is held at the time the habeas petition is filed. Docket No. 37. Applicant
further asserts Respondent Lou Archuleta transferred Applicant to a different Colorado
Department of Corrections facility without seeking permission from this Court. Applicant
contends that, as a result, Mr. Archuleta no longer is a properly named party and any
order entered by this Court directed to Mr. Archuleta to immediately release Applicant
would have no “power.” Docket No. 37 at 2-3. Applicant asks this Court to grant his
motion to substitute Respondent Lou Archuleta, the w arden where Applicant was
housed prior to February 26, 2015, with David Zupan, the warden where Applicant now
is housed.
Applicant also asks that the Court enjoin Respondents f rom transferring
Applicant without first seeking permission of the Court. Finally, Applicant seeks
attorney fees for preparing the Motion to Substitute and for Sanction as the sanction
against Respondent Archuleta for transferring Applicant without leave of Court.
Respondents do not oppose Applicant’s request for substitution. Docket No. 39
at 2. They, however, oppose the request for sanctions because Applicant’s request
does not comply with Fed. R. Civ. P. 11(c)(2) that requires a party to first serve the
opposing party with a copy of the proposed motion and allow the opposing party twentyone days to cure the alleged impropriety. Docket No. 39 at 2. Respondents further
argue that the request for sanctions is improper because Applicant has failed to submit
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the request in a separate motion, as required by Rule 11(c)(2). Docket No. 39 at 3.
Respondents also assert that Applicant has not provided (1) required supporting
affidavits, (2) summary of the drafting attorney’s qualifications, and (3) a detailed
description of the time spent, the hourly rate charges, and the total amount being
sought as required by D.C.COLOLCivR 54.3. Id.
Respondents assert they are unaware of any rule that requires Colorado prison
officials to obtain, during the pendency of a 28 U.S.C. § 2254 action, a federal district
court’s authorization to transfer an applicant between Colorado prison facilities. Id. at 4.
Respondents argue that, even if they were required to notify the Court of Applicant’s
transfer, there was no reason for Applicant to file a motion for substitution and sanction.
Id. at 5. Finally, Respondents assert that the substitution of a warden’s name in a case
caption is merely a formality and the wrong warden’s name would not nullify an order of
this Court granting a writ. Id.
In his Reply, through counsel, Applicant now depicts the Motion to Substitute and
for Sanction as an “emergency motion to prohibit further transfers of Petitioner by the
Colorado Department of Corrections without prior approval of this Court.” Docket No.
40 at 3. Applicant relies on Fed. R. App. P. 23(a) f or this Court’s “jurisdiction” to prohibit
any future transfers by Respondent. Id. at 6-7.
A. Sanction
Motions for sanctions are normally filed pursuant to Fed. R. Civ. P. 11, as
discussed by Respondents in their Response. The filing of a Rule 11 motion for
sanctions is itself subject to the requirements of the rule and can lead to sanctions.

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See Fed. R. Civ. P. 11 advisory committee’s notes to 1993 Amendment subdivisions (b)
and (c) (page 89). “The court has available a variety of possible sanctions to impose for
violations, such as striking the offending paper . . . .” Id. (page 88).
Applicant does not disagree with Respondents’ discussion of Fed. R. Civ. P. 11
and their argument that the Motion for Sanction not only was improperly presented to
the Court but was also without any basis. Applicant simply claims the intent of the
Motion to Substitute and for Sanction was to prohibit any future transfer of Applicant to
another prison facility. The Court, therefore, will strike the Motion for Sanction based
on Respondents’ argument that the Motion for Sanction was improperly filed.
B. Substitution
As for the Motion to Substitute, Fed. R. Civ. P. 25(d) provides that when a party
in his official capacity “otherwise ceases to hold office while the action is pending,” “[t]he
officer’s successor is automatically substituted.” Fed. R. Civ. P. 25(d). “The court may
order substitution at any time, but the absence of such an order does not affect the
substitution.” Id. The Court will grant the Motion to Substitute. W arden David Zupan
will be substituted for Warden Lou Archuleta.
C. Transfer
As for Applicant’s new Motion to Prohibit Further Transfer, set forth in Applicant’s
Reply, Docket No. 40, the Court will deny the Motion.
First, Applicant’s harassment, retaliation, and denial of access to the courts
claims are challenges to the conditions of confinement and more properly raised in a 42

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U.S.C. § 1983 complaint. The Supreme Court has explained the role of habeas and
civil rights actions as follows:
Federal law opens two main avenues to relief on complaints related to
imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a
complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as
amended, 42 U.S.C. § 1983. Challenges to the validity of any confinement
or to particulars affecting its duration are the province of habeas corpus,
Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 36 L. Ed.2d 439
(1973); requests for relief turning on circumstances of confinement may
be presented in a § 1983 action.
Muhammad v. Close, 540 U.S. 749, 750 (2004); see also Hill v. McDonough, 547 U.S.
573, 579 (2006). Applicant currently has four § 1983 actions pending before this Court;
three of these cases raise Applicant’s ongoing harassment, retaliation and denial of
access to the courts claims. See Vreeland v. Raemisch, et al., No. 15-cv-01295-GPG
(D. Colo. filed June 18, 2015); Vreeland v. Schwartz, et al., No. 13-cv-03515-PAB-KMT
(D. Colo. Dec. 20, 2013); Vreeland v. Griggs, et al., No. 12-cv-01921-PAB-KMT (D.
Colo. July 23, 2012).
As for Applicant’s claim that he has been told that he may be transferred to a
facility out of the State of Colorado,
“[p]ending review of a decision in a habeas corpus proceeding
commenced before a court, justice, or judge of the United States for the
release of a prisoner, the person having custody of the prisoner must not
transfer custody to another unless a transfer is directed in accordance
with this rule. When, upon application, a custodian shows the need for a
transfer, the court, justice, or judge rendering the decision under review
may authorize the transfer and substitute the successor custodian as a
party.”
Fed. R. App. P. 23(a). “The purpose of Rule 23(a) is to prevent officials from frustrating
an inmate’s efforts to obtain habeas relief by physically removing him from the territorial
jurisdiction of the court in which the petition is pending.” Strachan v. Army Clemency &
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Parole Bd., 151 F.3d 1308, 1313 (10th Cir. 1998); Dade v. Sanders, 2012 WL 2390292
(D. Colo. 2012) (applying Rule 23(a) in a pending habeas action before the district
court). “Once the officials demonstrate a legitimate, non-retaliatory reason independent
of the litigation in support of their application, an opposing inmate must establish that
‘the transfer would deprive the court of jurisdiction or substantially complicate the
conduct of the litigation.’” Id. (quoting Ward v. U.S. Parole Comm’n, 804 F.3d 64, 66
(7th Cir. 1986)).
To obtain the relief Applicant seeks, he is required to show that a “transfer
resulted in prejudice to the prosecution of the pending habeas action.” Strachan, 151
F.3d at 1312; see also Hammer v. Meachum, 691 F.2d 958, 961 (10th Cir. 1982)
(“While we do not condone such blatant violation of the appellate rules, we
nevertheless deny petitioner’s motion because he has not been prejudiced by the
transfer.”). Applicant’s transfer in February 2015 was not outside the jurisdiction of this
Court and nothing indicates that the transfer resulted in prejudice to the prosecution of
this case.
Applicant does assert in his Reply, however, that as a result of Applicant’s
February 2015 transfer his electronic tablet was taken, which included much of his legal
materials. Docket No. 40 at 5. The electronic tablet claim is conclusory and vague.
Applicant does not state how the denial of the tablet substantially has complicated the
conduct of the litigation or prejudiced the prosecution in this particular case. Currently,
Applicant’s transfer claim is speculative, and he does not demonstrate the prejudice
required. The Motion to Prohibit Further Transfer will be denied.

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III. CONCLUSION
Accordingly, it is
ORDERED that the Motion for Sanction, Docket No. 37, is stricken. It is further
ORDERED that the Motion to Substitute, Docket No. 37, is granted. David
Zupan, the warden where Applicant now is house, is substituted for Respondent Lou
Archuleta, the warden where Applicant was housed prior to February 26, 2015. It is
further
ORDERED that the Motion to Prohibit Further Transfer, Docket No. 40, is
denied.

DATED August 31, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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