Mardis v. Falk et al

Filing 15

ORDER Directing Applicant to File Amended Application, by Magistrate Judge Gordon P. Gallagher on 12/10/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02895-GPG
ALEXANDER S. MARDIS,
Applicant,
v.
JAMES FALK,
RICK RAEMISCH,
J. ANDERSON, LA II, and
JOHN SUTHERS, The Attorney General of the State of Colorado
Respondents.

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION

Applicant, Alexander S. Mardis, is a prisoner in the custody of the Colorado
Department of Corrections currently incarcerated at the correctional facility in Sterling
Colorado. He submitted pro se an Application for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254 (ECF No. 1).
The Court must construe the habeas corpus Application liberally because Mr.
Mardis is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). T he Court, however, should not act as
a pro se litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons stated below ,
Mr. Mardis will be ordered to file an amended Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254.
The Application Mr. Mardis submitted to the Court on October 23, 2014 is vague
and confusing. Mr. Mardis asserts that he is challenging his state court conviction and

requests habeas corpus relief. However, his asserted claims—that prison officials have
committed mail fraud and have refused to provide him with his legal property and
proper court forms— do not appear to be appropriate in a habeas corpus action. Mr.
Mardis may be challenging the conditions of his confinement, and well-established
Tenth Circuit law makes clear that § 2254 is an improper vehicle for those claims. See
McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997).
Generally, a state prisoner’s challenge to his conditions of confinement is cognizable
under 42 U.S.C. § 1983.
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 statem ent 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.
Furthermore, pursuant to Rules 2(c)(1) and 2(c)(2) of the Rules Governing
Section 2254 Cases in the United States District Courts (Section 2254 Rules), Mr.
Mardis must “specify all [available] grounds for relief” and he must “state the facts
supporting each ground.” These habeas corpus rules are more demanding than the

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rules applicable to ordinary civil actions, which require only notice pleading. See Mayle
v. Felix, 545 U.S. 644, 655 (2005). Naked allegations of constitutional violations are not
cognizable under § 2254. See Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992)
(per curiam). Therefore, the amended application Mr. Mardis will be directed to file
must allege in a clear and concise manner both the § 2254 claims he seeks to raise
and the specific facts to support each asserted claim.
Finally, the only proper respondent to a habeas corpus action is Mr. Mardis’
custodian. See 28 U.S.C. § 2242; Rules 2(a) and 1(b), Section 2254 Rules; Harris v.
Champion, 51 F.3d 901, 906 (10th Cir. 1995).
Accordingly, it is
ORDERED that within thirty days from the date of this order Mr. Mardis is
directed to file an amended application that complies with this order. It is
FURTHER ORDERED that Mr. Mardis shall obtain the Court-approved form for
filing an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (with the
assistance of his case manager or the facility’s legal assistant), along with the
applicable instructions, at www.cod.uscourts.gov, and shall use that form in submitting
the amended application. It is
FURTHER ORDERED that if Mr. Mardis fails within the time allowed to file an
amended application as directed, the action will be dismissed without further notice.
DATED December 10, 2014, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

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GORDON P. GALLAGHER
United States Magistrate Judge

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