Magluta v. Oliver

Filing 5

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION by Magistrate Judge Gordon P. Gallagher on 8/24/15. (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 DIRECTING APPLICANT TO FILE AMENDED APPLICATION

Applicant Salvador Magluta is in the custody of the Federal Bureau of Prisons
and currently is incarcerated at ADX in Florence, Colorado. Applicant initiated this
action by filing pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241. Applicant then paid the $5 f iling fee.
The Court must construe the Application liberally because Applicant is a pro se
litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). The Court, however, should not act as a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110. For the reasons stated below , Applicant will be
ordered to file an Amended Application.
An Application must comply with Rule 8 of the Federal Rules of Civil Procedure.
The Federal Rules of Civil Procedure apply to applications for habeas corpus relief.
See Fed. R. Civ. P. 81(a)(2); Browder v. Director, Dep’t of Corrections, 434 U.S. 257,

269 (1978); Ewing v. Rodgers, 826 F.2d 967, 969-70 (10th Cir. 1987). Pursuant to Fed.
R. Civ. P. 8(a), a pleading “must contain (1) a short and plain statement of the grounds
for the court’s jurisdiction, . . . (2) a short and plain statem ent of the claim showing that
the pleader is entitled to relief, and (3) a demand for the relief sought.” Fed. R. Civ. P.
8(d)(1) provides that “[e]ach allegation must be simple, concise, and direct.” Taken
together, Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity
by the federal pleading rules.
The Application is fifty-four pages long. The claims are repetitive and include
inappropriate legal arguments and unnecessary facts. Applicant is challenging a
disciplinary proceeding in Incident Report No. 2418289. Applicant claim s his due
process rights were violated under Wolff v. McDonnell, 418 U.S. 539 (1974), and he
seeks the reinstatement of forty-one days of good time credit.
Pursuant to Wolff, adequate due process in a disciplinary proceeding that
implicates a protected liberty interest requires advance written notice of the charges, an
opportunity to call witnesses and present documentary evidence, and a written
statement by the factfinders of the reasons for the decision and the evidence on which
they relied. See Wolff, 418 U.S. at 563-66. There also must be some evidence to
support the decision. See Superintendent, Mass. Correctional Inst., Walpole v. Hill, 472
U.S. 445, 454 (1985). Finally, a prisoner has a due process right to have the hearing
conducted by an impartial hearing officer. See Smith v. Maschner, 899 F.2d 940, 947
(10th Cir. 1990).

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Applicant, therefore, has failed to comply with Fed. R. Civ. P. 8, but he will be
given an opportunity to file an Amended Application. Applicant is directed to f ile an
Amended Application that complies with the pleading requirements of Rule 8 and legal
authority under Wolff. Applicant must state claims that are presented in a manageable
format that allows the Court and Respondents to know what claims are being asserted
and to be able to respond to those claim s.
Furthermore, pursuant to the Information and Instruction for Filing an Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, an Application and all
additional pages must not exceed thirty pages. See www.cod.uscourts.gov/
CourtOperations/Rules procedures/Forms.aspx. Finally, Rule 83(a)(2) of the Federal
Rules of Civil Procedure allows a district court to enforce a local rule imposing a form
requirement unless it "causes a party to lose any right because of a nonwillful failure to
comply." Fed. R. Civ. P. 83(a)(2). Plaintiff does not assert he is unable to obtain the
Court-approved forms for filing a complaint, or any other nonwillful failures to comply
with the local rules. Applicant, therefore, must submit his claims on a Court-approved
form that including attached pages is no longer than thirty pages. Accordingly, it is
ORDERED that within thirty days from the date of this Order Applicant file an
Amended Application that complies with this Order. It is
FURTHER ORDERED that Applicant shall obtain the Court-approved 28 U.S.C.
§ 2241 Application form (with the assistance of his case manager or the facility’s legal
assistant), along with the applicable instructions, at www.cod.uscourts.gov to use in
filing the Amended Application. It is

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FURTHER ORDERED that if Applicant fails within the time allowed to file an
Amended Application as directed the action will be dismissed without further
notice.
DATED August 24, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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