Snyder v. Manguso et al

Filing 3

ORDER Directing Plaintiff to Cure Deficiencies, by Magistrate Judge Gordon P. Gallagher on 3/24/2015. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00591-GPG
(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.)
JOSEPH R. SNYDER,
Plaintiff,
v.
ROBERT MANGUSO, MD,
RANDY LIND, and
BRENDAN SCHEFFER,
Defendants.

ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES

Plaintiff Joseph R. Snyder initiated this action by filing a Prisoner Complaint
pursuant to 42 U.S.C. § 1983, in which he requests to be released from prison on a
special needs parole and money damages.
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.
Plaintiff will be directed to cure the following if he wishes to pursue his claims. Any
papers that Plaintiff files in response to this Order must include the civil action number
on this Order.
Plaintiff further is directed that he may not raise a request for release in a
§ 1983 action; a challenge to the execution of a sentence more properly is raised in a

habeas action. See Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir. 2005) ( “[a]
prisoner may use § 1983 to challenge the conditions of his confinement,” habeas is “the

only avenue for a challenge to the fact or duration of confinement, at least when the
remedy requested would result in the prisoner’s immediate or speedier release from that
confinement.”). A 28 U.S.C. § 2241 action is the proper manner to challenge the
execution of a sentence. Montez v. McKinna, 208 F.3d 862, 866 (10th Cir.2000);
McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811–12 (10th Cir.1997) (holding that
§ 2241 is the appropriate vehicle to attack the execution of a sentence, including the
deprivation of good-time credits). Also, a request for money damages regarding an
alleged improper incarceration only is proper once the incarceration is invalidated. Heck
v. Humphrey, 512 U.S. 477 (1994).
Plaintiff may proceed with a § 1983 action if he desires only to challenge the
conditions of his confinement. Whether Plaintiff intends to proceed with a § 2241 action
challenging the execution of his sentence or a § 1983 action challenging the conditions
of this confinement he must cure the noted deficiencies.
28 U.S.C. § 1915 Motion and Affidavit:
(1)
X
is not submitted
(2)
is missing affidavit
(3)
prisoner's trust fund statement is not certified
is missing required financial information
(4)
is missing an original signature by the prisoner
(5)
(6)
is not on proper form (must use the Court’s current form)
names in caption do not match names in caption of complaint, petition or
(7)
habeas application
An original and a copy have not been received by the court.
(8)
Only an original has been received.
(9)
X
other: In the alternative Plaintiff may prepay the filing fee which is $5
in a 28 U.S.C. § 2241 action or $400 in a 42 U.S.C. § 1983.
Complaint, Petition or Application:
(10)
is not submitted
(11)
is not on proper form (must use a Court-approved form)
is missing an original signature by the prisoner
(12)
(13)
is missing page nos.
(14)
uses et al. instead of listing all parties in caption
2

(15)
(16)
(17)
(18)

X

An original and a copy have not been received by the court. Only an
original has been received.
Sufficient copies to serve each defendant/respondent have not been
received by the court.
names in caption do not match names in text
other: If Plaintiff desires to challenge the execution of his sentence
he must file his claims on a Court-approved form used in filing 28
U.S.C. § 2241 actions.

Accordingly, it is
ORDERED that Plaintiff cure the deficiencies designated above within thirty
days from the date of this Order. Any papers that Plaintiff files in response to this
Order must include the civil action number on this Order. It is
FURTHER ORDERED that if Plaintiff desires to challenge the execution of his
sentence he shall obtain the proper Court-approved forms for filing a 28 U.S.C. § 2241
action and a request to proceed pursuant to 28 U.S.C. § 1915 in a habeas action, if he
desires to proceed in forma pauperis, (with the assistance of his case manager or the
facility’s legal assistant), along with the applicable instructions, at
www.cod.uscourts.gov. for use in curing deficiencies. It is
FURTHER ORDERED that if Plaintiff desires to challenge the conditions of his
confinement he shall obtain the proper Court-approved form for filing a request to
proceed pursuant to 28 U.S.C. § 1915 in a 42 U.S.C. § 1983, if he desires to proceed in
forma pauperis, (with the assistance of his case manager or the facility’s legal
assistant), along with the applicable instructions, at www.cod.uscourts.gov. for use in
curing deficiencies. It is

3

FURTHER ORDERED that if Plaintiff fails to cure the designated deficiencies
within thirty days from the date of this Order the action will be dismissed without
further notice.
DATED March 24, 2015, at Denver, Colorado.
BY THE COURT:
s/Gordon P. Gallagher
United States Magistrate Judge

4