Gregory v. Denham

Filing 5

ORDER Directing Applicant to File Amended Application, by Magistrate Judge Boyd N. Boland on 8/18/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02183-BNB
JOHNNY BRETT GREGORY [Injured Party],
Applicant,
v.
DEBORAH DENHAM, Warden - FCI Englewood,
Respondent.

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION

Applicant, Johnny Brett Gregory, is a prisoner in the custody of the Federal
Bureau of Prisons at the Federal Correctional Institution Englewood in Littleton,
Colorado. Mr. Gregory has filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 1) claiming his constitutional rights have been
violated in connection with two disciplinary convictions. As relief, he requests
expungement of the disciplinary convictions, return to placement in minimum custody
level, and restoration of good time credits.
The Court must construe the Application liberally because Mr. Gregory 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. Mr. Gregory will be ordered
to file an amended application if he wishes to pursue his habeas corpus claims in this
action.

The Application is deficient because Mr. Gregory fails to provide a clear
statement of the claims he is asserting. Mr. Gregory asserts three claims for relief that
challenge two disciplinary convictions. Mr. Gregory also attaches two exhibits totaling
66 pages that include lengthy recitations of factual allegations that are not clearly
relevant or linked to the claims being asserted. For example, the second exhibit is titled
“Injured Party Designation of Non-Party at Fault Under Colorado Law Don Jennings,
Wendy J. Roal, Luke M. Ormandy, Tony Chaness and Kevin Nikes as Agents for
Federal Bureau of Prisons Inc” and attempts to name these individuals as non-parties at
fault and seek monetary damages from them.
Mr. Gregory may not assert claims for damages against individual prison officials
who have allegedly violated his rights in this § 2241 action 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). If Mr. Gregory wishes to pursue any
claims for damages, he must do so in a separate civil rights action. In addition, Mr.
Gregory appears to be challenging the conditions of his confinement by arguing that he
was placed in a higher security level in retaliation for filing a prior lawsuit. Mr. Gregory
also may not raise the retaliation claim in this habeas corpus action. See PalmaSalazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (discussing distinction between
habeas corpus claims pursuant to 28 U.S.C. § 2241 and conditions of confinement
claims raised in civil rights actions). Mr. Gregory must raise the retaliation claim in a
separate civil rights action if he wishes to pursue that claim in federal court.
Mr. Gregory’s disjointed and prolix factual allegations concerning the habeas
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corpus claims in the Application do not provide a clear statement of the specific claims
he is asserting and do not demonstrate he is entitled to relief. Although the Court must
construe the Application liberally, “the court cannot take on the responsibility of serving
as the litigant’s attorney in constructing arguments and searching the record.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
The Court finds that the Application does not comply with Rule 8 of the Federal
Rules of Civil Procedure. The Federal Rules of Civil Procedure apply to applications for
habeas corpus relief. See Fed. R. Civ. P. 81(a)(2); Browder v. Director, Dep’t of
Corrections, 434 U.S. 257, 269 (1978); Ewing v. Rodgers, 826 F.2d 967, 969-70 (10th
Cir. 1987). Pursuant to Fed. R. Civ. P. 8(a), a pleading “must contain (1) a short and
plain statement of the grounds for the court’s jurisdiction, . . . (2) a short and plain
statement of the claim showing that the pleader is entitled to relief, and (3) a demand for
the relief sought.” Fed. R. Civ. P. 8(d)(1) provides that “[e]ach allegation must be
simple, concise, and direct.” Taken together, Rules 8(a) and (d)(1) underscore the
emphasis placed on clarity and brevity by the federal pleading rules. Prolix, vague, or
unintelligible pleadings violate the requirements of Rule 8.
Mr. Gregory must present his claims in a manageable and readable format that
allows the Court and Respondent to know what claims are being asserted and to be
able to respond to those claims. Mr. Gregory must allege, simply and concisely, his
specific claims for relief, including the specific rights that allegedly have been violated
and the specific acts of each defendant that allegedly violated his rights. A long,
chronological recitation of facts is not required. Nor should the Court or Respondent be
required to sift through Mr. Gregory’s allegations to locate the heart of each claim.
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Habeas corpus relief is warranted only if Mr. Gregory “is in custody in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
Pursuant to Rules 2(c)(1) and 2(c)(2) of the Rules Governing Section 2254 Cases in the
United States District Courts, which apply to this habeas corpus action pursuant to §
2241, Mr. Gregory must provide specific factual allegations in support of the federal
constitutional claims he is asserting. These habeas corpus rules 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). “A prime purpose of Rule 2(c)’s demand
that habeas petitioners plead with particularity is to assist the district court in
determining whether the State should be ordered to ‘show cause why the writ should
not be granted.’” Id. at 656 (quoting 28 U.S.C. § 2243). 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).
The Court, therefore, will direct Mr. Gregory to file an amended application that
complies with the pleading requirements of Rule 8 and Rules 2(c)(1) and 2(c)(2) and
states claims in a manageable format that allows the Court and Respondent to know
what claims are being asserted and to be able to respond to those claims.
Accordingly, it is
ORDERED that, within thirty (30) days from the date of this order, Mr.
Gregory file an amended application that clarifies his habeas corpus claims in this
action. It is
FURTHER ORDERED that Mr. Gregory shall obtain the court-approved
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 form (with the
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assistance of his case manager or the facility’s legal assistant), along with the
applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Gregory fails within the time allowed to file an
amended application that clarifies his claims in this action, the action may be dismissed
without further notice.
DATED August 18, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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