Barrow v. Oliver

Filing 7

ORDER Overruling Objection re: 4 Objections filed by Donnell Barrow. Ordered Mr. Barrow continues to have thirty (30) days fromthe date of the order of August 25, 2014, in which to cure the designated deficiencies and file an amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 that only asserts habeas corpus claims. ORDERED that failure to comply with the directives in the August 25order within the time allowed will result in the dismissal of the instant action by Judge Lewis T. Babcock on 9/11/2014. (agarc, )

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 OVERRULING OBJECTION

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. He
submitted pro se on September 4, 2014, an objection titled “Appeal of Magistrate
Judge’s Decision/Order to the US District Court” (ECF No. 4). He objects to the order of
August 25, 2014 (ECF No. 3), directing him to cure certain designated deficiencies and
file an amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
that only asserts habeas corpus claims. The August 25 order also informed Mr. Barrow
that if he intended to assert civil rights claims challenging the conditions of his
confinement, he must file a separate civil rights action pursuant to Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971).
Instead of curing the designated deficiencies and filing an amended Application
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, Mr. Barrow filed an objection
to the August 25 order seeking a medical transfer to the Federal Medical Center where,

he contends, he can receive “proper medical treatment . . . for his painful chronic skin
disease.” ECF No. 4 at 2.
The Court must construe the objection liberally because Mr. Barrow 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 objection will be overruled.
As Magistrate Judge Boland informed Mr. Barrow in the order to cure, Mr. Barrow
is asserting civil rights claims rather than habeas corpus claims. “The 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). Mr. Barrow is challenging the conditions of his
confinement, not the basis for his conviction and sentence on criminal charges. If he
wishes to proceed in this habeas corpus action, he must comply with the August 25
order to cure.
Pursuant to 28 U.S.C. § 636(b)(1)(A) a judge may reconsider any pretrial matter
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designated to a magistrate judge to hear and determine where it has been shown that
the magistrate judge’s order is clearly erroneous or contrary to law. The Court has
reviewed the file and finds that the August 25 order entered by Magistrate Judge Boland
is not clearly erroneous or contrary to law. Therefore, the objection will be overruled.
Accordingly, it is
ORDERED that the objection titled “Appeal of Magistrate Judge’s Decision/Order
to the US District Court” (ECF No. 4) that Applicant, Donnell Barrow, filed on August 25,
2014, and which the Court has construed liberally as an objection pursuant to 28 U.S.C.
§ 636(b)(1)(A), is overruled. It is
FURTHER ORDERED that Mr. Barrow continues to have thirty (30) days from
the date of the order of August 25, 2014, in which to cure the designated deficiencies
and file an amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2241 that only asserts habeas corpus claims. It is
FURTHER ORDERED that failure to comply with the directives in the August 25
order within the time allowed will result in the dismissal of the instant action.
DATED at Denver, Colorado, this 11th day of

September , 2014.

BY THE COURT:

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

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