Barrow v. Oliver

Filing 13

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/2/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02259-BNB
DONNELL BARROW,
Applicant,
v.
J. OLIVER, FBOP,
Respondent.

ORDER OF DISMISSAL

Applicant, Donnell Barrow, is a prisoner in the custody of the Federal Bureau of
Prisons at the United States Penitentiary, High Security, in Florence, Colorado. Mr.
Barrow initiated the instant action by filing pro se an Application for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) seeking injunctive relief.
Mr. Barrow complained that he suffers from a skin disease, has been prevented
from an examination by a dermatologist because of the medical expense involved, and
was transferred to his current prison facility in retaliation for complaining about the
disease at his prior prison facility. He also alleged that he has been prevented from
exhausting administrative remedies.
After reviewing the application, Magistrate Judge Boyd N. Boland on August 25,
2014, entered an order directing Mr. Barrow to cure certain deficiencies in the instant
action. Magistrate Judge Boland found that Mr. Barrow was asserting civil rights claims
rather than habeas corpus claims. He informed Mr. Barrow that “[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); see also Palma-Salazar v. Davis, 677
F.3d 1031, 1035 (10th Cir. 2012) (discussing distinction between habeas corpus claims
pursuant to § 2241 and conditions of confinement claims raised in civil rights actions).
“It is well-settled that prisoners who wish to challenge only the conditions of their
confinement, as opposed to its fact or duration, must do so through civil rights lawsuits
filed pursuant to 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403 U.S.
388 . . . (1971), – not through federal habeas proceedings.” Standifer v. Ledezma, 653
F.3d 1276, 1280 (10th Cir. 2011). Magistrate Judge Boland also informed Mr. Barrow
he was challenging the conditions of his confinement, not the basis for his conviction
and sentence on criminal charges.
Magistrate Judge Boland explained that Mr. Barrow may pursue habeas corpus
claims challenging the execution of his sentence in the instant § 2241 action. If he
intended to assert civil rights claims challenging the conditions of his confinement,
however, Magistrate Judge Boland told Mr. Barrow he must file a separate civil rights
action pursuant to Bivens and 28 U.S.C. § 1331. The August 25 order directed him to
submit either the $5.00 filing fee or a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action together with a
certified statement showing the current balance in his prison account. The order noted
that the § 1915 motion and affidavit and certificate showing his inmate account balance
only were necessary if the $5.00 filing fee was not paid in full in advance.
Magistrate Judge Boland directed Mr. Barrow to obtain the Court-approved forms
2

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, as www.cod.uscourts.gov, and
use those forms in curing the designated deficiencies and filing an amended Application
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 that only asserted habeas
corpus claims. The August 25 order warned Mr. Barrow that if he failed to cure the
designated deficiencies and file an amended Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 within thirty days as directed, the action would be
dismissed without further notice.
On September 4, 2014, Mr. Barrow filed an objection (ECF No. 4) to the August
25 order, seeking a medical transfer to the Federal Medical Center where, he
contended, he could receive “proper medical treatment . . . for his painful chronic skin
disease.” ECF No. 4 at 2. On September 9, 2014, he paid the $5.00 filing fee. On
September 11, 2014, the Court overruled the objection, finding that the August 25 order
was not clearly erroneous or contrary to law. On September 24, 2014, two documents
from a Robert E. Green, who is not a party to this lawsuit, were submitted to the Court.
See ECF Nos. 10 and 11. On September 24, 2014, Mr. Barrow filed an amended
Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 12).
The Court must construe Ms. Barrow’s amended application liberally because he
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
3

below, the amended application will be denied and this action dismissed.
The amended application is not on the Court-approved form for filing an
Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 that Mr. Barrow
was directed to use in the August 25 order. Local Rules 1.2 and 5.1(c) of the Local
Rules of Practice - Civil for this Court require litigants to use the Court-approved forms
found on the Court’s website. Rule 83(a)(2) of the Federal Rules of Civil Procedure
allows a district court to enforce a local rule imposing a form requirement unless it
“causes a party to lose any right because of a nonwillful failure to comply.” Fed. R. Civ.
P. 83(a)(2). Mr. Barrow makes no mention of being denied access to the Courtapproved habeas corpus form, nor did he ask the Court to mail him the form because
he was unable to obtain it. Generally, “dismissal is an appropriate disposition against a
party who disregards court orders and fails to proceed as required by court rules.”
United States ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855 (10th Cir. 2005).
In addition, the United States Court of Appeals for the Tenth Circuit repeatedly
has upheld the requirement that pro se litigants comply with local court rules requiring
use of proper Court-approved forms, and rejected constitutional challenges to such
rules. See Georgacarakos v. Watts, 368 F. App'x 917, 918-19 (10th Cir. 2010) (district
court did not abuse its discretion in dismissing civil rights action without prejudice for
federal prisoner's noncompliance with local rules requiring use of proper court-approved
form to file complaint and district court's order to comply), Durham v. Lappin, 346 F.
App'x 330, 332-33 (10th Cir. 2009) (it was within district court's discretion to dismiss
prisoner's complaint for failure to comply with local rules requiring pro se litigants to use
court-approved forms, and local rule did not violate prisoner's equal protection rights);
4

Kosterow v. United States Marshal's Serv., 345 F. App'x 321, 322-33 (10th Cir. 2009) (it
was within district court's discretion to dismiss complaint for failure to use proper court
form); Young v. United States, 316 F. App'x 764, 769-71 (10th Cir. 2009) (district court
order dismissing federal prisoner's pro se civil rights complaint without prejudice to his
ability to refile, based on his repeated refusal to comply with district court order directing
him to file amended complaint on court-approved prisoner complaint form as required
by local district court rule, was not abuse of discretion or constitutional violation); Maunz
v. Denver Dist. Court, 160 F. App'x 719, 720-21 (10th Cir. 2005) (district court did not
abuse its discretion in dismissing inmate's federal action where inmate failed to file
habeas corpus application on proper form designated by district court); Daily v.
Municipality of Adams County, 117 F. App'x 669, 671-72 (10th Cir. 2004) (inmate's
failure to comply with local rule requiring pro se prisoners to use court's forms to file
action was not nonwillful, and inmate's failure to use required form supported dismissal
of action). Therefore, the amended application will be denied.
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 $505.00 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 amended Application for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241 (ECF No. 12) is denied and the action dismissed without prejudice
5

pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of
Applicant, Donnell Barrow, to file within the time allowed an amended Application for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 on the Court-approved form as
directed in the order of August 25, 2014. 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 any pending motions are denied as moot.
DATED October 2, 2014, at Denver, Colorado.
BY THE COURT:

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

6