Magluta v. Oliver

Filing 10

ORDER TO FILE PRELIMINARY RESPONSE by Magistrate Judge Gordon P. Gallagher on 9/30/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01749-GPG
SALVADOR MAGLUTA,
Applicant,
v.
J. OLIVER, Complex Warden,
Respondent.

ORDER TO FILE PRELIMINARY RESPONSE

Applicant is in the custody of the Federal Bureau of Prisons and currently is
incarcerated at the ADX in Florence, Colorado. Applicant initiated this action by filing pro
se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2241 that
challenges violation of his due process rights in a disciplinary proceeding.

The Court

reviewed the Application, determined that it did not comply with Rule 8 of the Federal
Rules of Civil Procedure or with the Information and Instruction for Filing an Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2241 and Local Rules for this Court,
and directed Applicant to file an Amended Application.
On August 26,2015, counsel entered an appearance; he filed a motion for an
extension of time to amend, which was granted, and then filed an Amended Application.
As part of the preliminary consideration of the Application in this case and pursuant
to Keck v. Hartley, 550 F. Supp. 2d 1272 (D. Colo. 2008), the Court has determined that a
limited Preliminary Response is appropriate. Respondent is directed pursuant to Rule 4
of the Rules Governing Section 2254 Cases in the United States District Courts to file a

Preliminary Response limited to addressing the affirmative defense of exhaustion of
administrative remedies with respect to the claims raised in the Amended Application
addressing Incident Report No. 2418289. If Respondent does not intend to raise this
affirmative defense, Respondent must notify the Court of that decision in the Preliminary
Response. Respondent may not file a dispositive motion as a Preliminary Response, or
an Answer, or otherwise address the merits of the claims in response to this Order.
In support of the Preliminary Response, Respondent should attach as exhibits all
relevant portions of the administrative record, including but not limited to copies of all
documents demonstrating whether Applicant has exhausted administrative remedies.
Accordingly, it is
ORDERED that within twenty-one days from the date of this Order
Respondent shall file a Preliminary Response that complies with this Order. It is
FURTHER ORDERED that within twenty-one days of the filing of the
Preliminary Response Applicant may file a Reply, if he desires. It is
FURTHER ORDERED that if Respondent does not intend to raise the affirmative
defense of exhaustion of administrative remedies, Respondent must notify the Court of
that decision in the Preliminary Response.
Dated: September 30, 2015
BY THE COURT:
s/Gordon P. Gallagher
United States Magistrate Judge

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