Hernandez v. No Named Defendant

Filing 25

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/3/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02852-GPG
STEVEN JAMES HERNANDEZ,
Plaintiff,
v.
JOHN SUTHERS, Attorney General,
RICK RAEMISCH, D.O.C. Executive Director, and
JOHN DOW, District Attorney, Denver,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Steven James Hernandez, was detained at the Denver County Jail when
he initiated this action on October 17, 2014. He submitted a Letter to the Court (ECF
No. 1), in which he asserted that the Colorado Department of Corrections (CDOC) is
improperly deducting earned and good time credits from his parole eligibility date,
instead of from his discharge date.
On October 20, 2014, Magistrate Judge Boyd N. Boland entered an order
directing Plaintiff to file a Prisoner Complaint, to the extent he was challenging the
conditions of his confinement, or an Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241, to the extent he was challenging the execution of his sentence. (ECF
No. 3). See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996) (“Petitions under §
2241 are used to attack the execution of a sentence); McIntosh v. United States Parole
Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997) (a habeas corpus application is an
improper vehicle for a prisoner to challenge the conditions of his confinement; instead, a

state prisoner’s challenge to his conditions of confinement is cognizable under 42
U.S.C. § 1983).
Mr. Hernandez filed both a Prisoner Complaint and a § 2241 Application on
December 1, 2014. (ECF Nos. 12, 13).
On December 18, 2014, Magistrate Judge Gordon P. Gallagher reviewed the
December 1 filings and issued an Order Directing Plaintiff to File an Amended
Complaint within 30 days (ECF No. 18). On December 30, 2014, Mr. Hernandez filed a
Letter (ECF No. 21), in which he asked the Court to mail him a copy of the Prisoner
Complaint form. Magistrate Judge Gallagher granted Plaintiff’s request in a January 6
minute order and allowed him 30 days from that date to submit his amended Prisoner
Complaint. (ECF No. 22). The clerk’s office mailed the Prisoner Complaint form to
Plaintiff on January 6, 2015. (ECF No. 23).
It is not clear whether Mr. Hernandez ever received the Prisoner Complaint form
sent to him at the Denver County Jail on January 6, 2015, or a copy of the January 6,
2015 minute order. The January 6 minute order was not returned to the Court as
undeliverable. However, a separate order, mailed to the Denver County Jail on
December 17, 2014 (ECF No. 16), was returned to the Court as undeliverable two
months later, on February 17, 2014. (ECF No. 24). The notation on the returned
envelope states that Mr. Hernandez was released from the Denver County Jail. (Id.).
The local rules of this Court require a litigant to file a notice of new address
within five days of any address change. See D.C.COLO.LAttyR 5(c) (formerly
D.C.COLO.LCivR 11.1(d), prior to the December 1, 2014 amendments). Although pro
se pleadings are construed liberally, pro se litigants are bound by the same rules of
2

procedure that governs other litigants. See Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir.2005). Mr. Hernandez has not filed a notice of address
change with the Court. In addition, he has failed to comply with the December 18 Order
directing him to file an amended Prisoner Complaint. As such, this action is subject to
dismissal without prejudice for Plaintiff’s failure to prosecute. See Fed. R. Civ. P. 41(b).
Furthermore, as discussed in the December 18 Order, Mr. Hernandez’s
allegations in the original Prisoner Complaint are confusing and fail to comply with the
requirements of Fed. R. Civ. P. 8. (See ECF No. 18, at 1-2). Accordingly, the Prisoner
Complaint is subject to dismissal without prejudice on that ground. “‘A dismissal without
prejudice under Rule 8 is within the sound discretion of the trial court.’” Carbajal v. City
and County of Denver, No. 12-1090, 502 F. App’x 715, 716 (10th Cir. Sept. 25, 2012)
(unpublished) (quoting Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th
Cir.1992); see also Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162
(10th Cir.2007) (“Employing Rule 41(b) to dismiss a case without prejudice for failure to
comply with Rule 8 of course allows the plaintiff another go at trimming the verbiage;
accordingly, a district court may, without abusing its discretion, enter such an order
without attention to any particular procedures.”).
And, although the allegations in the § 2241 Application (ECF No. 13) arguably
comply with Fed. R. Civ. P. 8, Mr. Hernandez was advised in the December 18 Order
that he may not maintain civil rights claims and habeas corpus claims in the same
proceeding. See generally McIntosh, 115 F.3d at 811-812.
In sum, Mr. Hernandez has failed to file an amended Prisoner Complaint that
complies with Fed. R. Civ. P. 8, and he has also failed to comply with court orders and
3

to prosecute this action. Accordingly, it is
ORDERED that this action is DISMISSED WITHOUT PREJUDICE, pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure, for the failure of Steven James
Hernandez to prosecute this action, as well as his non-compliance with court orders,
Fed. R. Civ. P. 8, and the local rules of this court. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied for the purpose of appeal. 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. See
Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Hernandez files a notice of
appeal he must also pay the full $505 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.
DATED March 3, 2015, at Denver, Colorado.
BY THE COURT:

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

4