Mardis v. Falk et al

Filing 4

ORDER Directing Plaintiff to Cure Deficiencies, by Magistrate Judge Boyd N. Boland on 10/28/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02895-BNB
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
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 PLAINTIFF TO CURE DEFICIENCIES

Alexander S. Mardis, is a prisoner in the custody of the Colorado Department of
Corrections (“CDOC”) currently incarcerated at the correctional facility in Sterling,
Colorado. He has submitted pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 1) and a document titled “Writ of Habeas
Corpus/Affidavit of Truth/Complaint” (ECF No. 3). In the Application, Mr. Mardis asserts
that prison officials have committed mail fraud and have refused to provide him with his
legal property and proper court forms. For relief, he requests that the Court vacate or
modify his state conviction and seeks injunctive and declaratory relief as well as
monetary damages. Mr. Mardis is advised that he may not assert civil rights claims in a
habeas corpus action.
“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). “Petitions
under § 28 U.S.C. § 2254 habeas and § 2255 proceedings are used to collaterally
attack the validity of a conviction and sentence.” See McIntosh v. United States Parole
Comm’n, 115 F.3d 809, 811 (10th Cir. 1997).
It is well established in the Tenth Circuit that a habeas corpus application is an
improper vehicle for a prisoner to challenge the conditions of his confinement. 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. Id.
As part of the Court’s review pursuant to D.C.COLO.LCivR 8.1(b), the Court has
determined that the submitted documents are deficient as described in this Order. Mr.
Mardis will be directed to cure the following if he wishes to pursue his claims. Any
papers that Mr. Mardis files in response to this Order must include the civil action
number noted above in the caption of this Order.
28 U.S.C. § 1915 Motion and Affidavit:
is not submitted
(1)
X
(2)
is missing affidavit
(3)
is missing certified copy of prisoner's trust fund statement for the 6-month
period immediately preceding this filing
is missing certificate showing current balance in prison account (if filing
(4)
X
habeas corpus application)
(5)
is missing required financial information
(6)
is missing an original signature by the prisoner
(7)
is not on proper form (must use the court’s current form for filing prisoner
complaints)
names in caption do not match names in caption of complaint, petition or
(8)
habeas application
(9)
An original and a copy have not been received by the court.
Only an original has been received.
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(10)

X

other: Instead of submitting the § 1915 motion and supporting
documentation, Applicant may pay the $5.00 filing fee in advance.

Complaint, Petition or Application:
(11)
is not submitted
is not on proper form (must use the court’s current form)
(12)
(13)
is missing an original signature by the prisoner
(14)
is missing page nos.
(15)
uses et al. instead of listing all parties in caption
(16)
An original and a copy have not been received by the court. Only an
original has been received.
(17)
Sufficient copies to serve each defendant/respondent have not been
received by the court.
names in caption do not match names in text
(18)
(19)
X
other: the only proper Respondent in a habeas corpus action is Applicant’s
current warden, superintendent, jailer, or other custodian.
Accordingly, it is
ORDERED that Applicant cure the deficiencies designated above within thirty
(30) days from the date of this order. Any papers that Applicant files in response to
this order must include the civil action number on this order. It is
FURTHER ORDERED that Applicant shall obtain the court-approved forms 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. § 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
use these forms in curing the designated deficiencies. It is
FURTHER ORDERED that, if Applicant fails to cure the designated deficiencies
within thirty (30) days from the date of this order, the action will be dismissed
without further notice. The dismissal shall be without prejudice.
DATED October 28, 2014, at Denver, Colorado.
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BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge

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