Zuviceh v. Colorado Department of Corrections

Filing 7

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/13/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00015-GPG
SCOTT W. ZUVICEH,
Applicant,
v.
COLORADO DEPARTMENT OF CORRECTIONS, and
EL PASO COUNTY SHERIFF,
Respondents.

ORDER OF DISMISSAL

Plaintiff, Scott W. Zuviceh, is a prisoner currently incarcerated at the El Paso
County Criminal Justice Center in Colorado Springs, Colorado. The instant action was
commenced on January 5, 2015, when Plaintiff submitted a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3) and a Prisoner
Complaint (ECF No. 1) alleging that Plaintiff’s parole time and statutory discharge date
is being miscalculated.
On January 6, 2015, Magistrate Judge Gordon P. Gallagher entered an order
directing Plaintiff to cure certain deficiencies if he wished to pursue any claims in this
action. Magistrate Judge Gallagher advised Plaintiff that a civil rights action under 42
U.S.C. § 1983 challenges the conditions of a state prisoner’s confinement. McIntosh v.
United States Parole Comm’n, 115 F.3d 809, 811- 12 (10th Cir. 1997). By contrast,
“[t]he 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 § 2241
are used to attack the execution of a sentence. See Bradshaw v. Story, 86 F.3d 164,
166 (10th Cir. 1996). Magistrate Judge Gallagher further explained that it appeared that
Plaintiff was attempting to challenge the execution of his sentence and thus, his claims
should be asserted in a habeas corpus action pursuant to § 2241. Therefore,
Magistrate Judge Gallagher directed Plaintiff to file a habeas corpus application on the
court-approved form and to pay the $5.00 filing fee or submit a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action.
Magistrate Judge Gallagher warned Plaintiff that the action would be dismissed without
further notice if Plaintiff failed to cure the designated deficiencies within thirty day from
the date of the order.
On January 23, 2015, Plaintiffs filed a Petition for a Writ of Habeas Corpus Under
28 U.S.C. § 2241 (ECF No. 5). On February 4, 2015, Magistrate Judge Gallagher
entered a minute order informing Plaintiff that he did not cure all the designated
deficiencies because he failed to pay the $5.00 filing fee or submit on the courtapproved form a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 in a Habeas Corpus Action. Magistrate Judge Gallagher gave Plaintiff an
additional thirty days to comply with the Court’s January 6 Order to Cure and warned
Plaintiff that failure to comply would result in dismissal of this action without further
notice.
Mr. Zuviceh has failed to file a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action or to pay the $5.00

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filing fee within the time allowed and he has failed to respond in any way to Magistrate
Judge Gallagher’s February 4 minute order. Therefore, the action will be dismissed
without prejudice for failure to prosecute and comply with a court order.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not taken in good faith, and, therefore, in forma paupers status is denied
for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Plaintiff files a notice of appeal he must also pay the full $505 appellate filing fee or file a
motion to proceed in forma pampers in the Tenth Circuit within thirty days in accordance
with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Complaint and action are dismissed without prejudice
pursuant to Fed. R. Civ. P. 41(b) for failure to comply with court orders within the time
allowed and for failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pampers on appeal is
denied.
DATED at Denver, Colorado, this 13th

day of

March

, 2015.

BY THE COURT:

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

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