Clark v. No Named Defendant

Filing 2

ORDER by Magistrate Judge Boyd N. Boland on 02/10/14, Directing Petitioner to Cure Deficiencies, and Granting Fed. R. Civ. P. 27 Petition. The Clerk of the Court is directed to mail to Petitioner a copy of this order, and a copy of the Prisoners Moti on and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 along with the applicable instructions. The Clerk of the Court is also directed to mail a copy of the petition to the unnamed Respondent at the Sterling Correctional Facility. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Miscellaneous Action No. 14-mc-00018-BNB
(The above miscellaneous 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.)
CHRISTOPHER CLARK,
Petitioner,
v.
[NO NAMED RESPONDENT],
Respondent.

ORDER DIRECTING PETITIONER TO CURE DEFICIENCIES,
AND GRANTING FED. R. CIV. P. 27 PETITION

Petitioner, Christopher Clark, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the correctional facility in
Sterling, Colorado. He has submitted pro se a letter (ECF No. 1) to the Court. As part
of the Court’s review pursuant to D.C.COLO.LCivR 8.1(b), the Court has determined
that the letter is deficient as described in this order. Petitioner will be directed to cure
the following if he wishes to pursue his claims. Any papers that Petitioner files in
response to this order must include the miscellaneous action number on this order.
Mr. Clark has failed either to file a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 or tender the $46.00 filing fee for a
miscellaneous case. According to the Schedule of Fees for this Court, the fee for a
miscellaneous civil case (mc) is $46.00. The Schedule of Fees is viewable on the

Court’s website, www.cod.uscourts.gov, by clicking on “Court Operations” and selecting
“Fee Schedule” from the drop-down menu. Mr. Clark will be afforded the opportunity
either to submit a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 or to tender the $46.00 miscellaneous case filing fee.
In the letter he filed, Mr. Clark asks the Court to require the unnamed
Respondent to produce certain documents and information. He contends that he needs
the information for a civil action he plans to file in this Court. He also seeks legal
advice. Because Mr. Clark is proceeding pro se, the letter will be construed liberally.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). To the extent Mr. Clark asks the Court to require the unnamed
Respondent to produce certain documents and information, the letter will be treated as
a petition pursuant to Rule 27 of the Federal Rules of Civil Procedure. To the extent Mr.
Clark asks the Court for legal advice, the request will be denied. The Court does not
provide legal advice to litigants. His other requests concerning service and the
appointment of counsel to represent him or increased law library access will be denied
as premature.
Prior to bringing an action, Fed. R. Civ. P. 27 allows a person who wants “to
perpetuate testimony regarding any matter cognizable in a United States court” to file a
verified petition “in the district court for the district where any expected adverse party
resides.” Fed. R. Civ. P. 27(a)(1). Relief under Rule 27 is available if the Court is
“satisfied that the perpetuation of the testimony may prevent a failure or delay of
justice.” Fed. R. Civ. P. 27(a)(3).

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Rule 27(a)(1) lists five requirements for a properly supported petition. Even
construing Mr. Clark’s petition liberally, he has not satisfied all five requirements.
Because Mr. Clark has failed to satisfy the requirements for a properly supported
petition, the Court is unable to determine whether Mr. Clark is entitled to relief under
Fed. R. Civ. P. 27(a). However, rather than dismiss this action at this time, Mr. Clark
will be allowed to file an amended petition that conforms to the five requirements of Fed.
R. Civ. P. 27(a).
Accordingly, it is
ORDERED that Petitioner, Christopher Clark, cure the deficiencies designated
above within thirty (30) days from the date of this order. Any papers that Petitioner
files in response to this order must include the civil action number on the order. It is
FURTHER ORDERED that Mr. Clark either submit a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 or tender the $46.00
miscellaneous case filing fee within thirty (30) days from the date of this order. It is
FURTHER ORDERED that the clerk of the Court mail to Petitioner, together with
a copy of this order, a copy of the Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 along with the applicable instructions, and Petitioner use
the form if he does not intend to tender the $46.00 miscellaneous case filing fee. It is
FURTHER ORDERED that to the extent Mr. Clark asks the Court to require the
unnamed Respondent to produce certain documents and information, the letter is
treated as a petition pursuant to Rule 27 of the Federal Rules of Civil Procedure, and is
granted at this time. It is

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FURTHER ORDERED that the clerk of the Court mail a copy of the petition to the
unnamed Respondent at the Sterling Correctional Facility. It is
FURTHER ORDERED that Mr. Clark file within thirty days from the date of
this order an amended petition that conforms to the requirements of Fed. R. Civ. P.
27(a). It is
FURTHER ORDERED that the amended petition shall be titled “Amended
Petition Pursuant to Fed. R. Civ. P. 27(a)” and shall be filed with the Clerk of the Court
for the United States District Court for the District of Colorado at the Alfred A. Arraj U.S.
Courthouse, 901 Nineteenth Street, Room A-105, Denver, Colorado 80294-3589,
within thirty days from the date of this order. It is
FURTHER ORDERED that, if Mr. Clark fails to cure the designated deficiencies
within thirty days from the date of this order, this action will be dismissed.
DATED February 10, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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