Villalobos v. DDC-DCJ
ORDER DIRECTING APPLICANT TO AMEND AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS by Magistrate Judge Gordon P. Gallagher on 11/20/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02444-GPG
ORDER DIRECTING APPLICANT TO AMEND AND
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
Applicant, Enrique Villalobos, is a prisoner in the custody of the Denver County
Jail. He has filed pro se an Application for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (ECF No. 1). He has been granted leave to proceed in forma pauperis.
(ECF No. 4).
The Court must construe Mr. Villalobos’s habeas corpus application liberally
because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the
Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For
the reasons stated below, Mr. Villalobos will be ordered to file an amended pleading.
Mr. Villalobos alleges that he has been placed in ad-seg or solitary confinement
every time he has been locked up for a total of 4.5 years, which has caused him
suffering and mental health issues. He seeks damages.
Mr. Villalobos appears to be asserting civil rights claims pursuant to 42 U.S.C. §
1983, based on the conditions of his confinement, which are not properly raised in a
habeas corpus action.
“The 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); see also
McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997)
(“Petitions under § 2241 are used to attack the execution of a sentence, . . . [while] §
2254 habeas and § 2255 proceedings, . . . are used to collaterally attack the validity of a
conviction and sentence.”); Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir.
2012) (discussing distinction between habeas corpus claims pursuant to § 2241 and
conditions of confinement claims raised in civil rights actions). “It is well-settled that
prisoners who wish to challenge only the conditions of their confinement, as opposed to
its fact or duration, must do so through civil rights lawsuits filed pursuant to 42 U.S.C. §
1983 or Bivens [v. Six Unknown Named Agents, 403 U.S. 388 (1971),] . . . – not through
federal habeas proceedings.” Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir.
In any event, Mr. Villalobos has not asserted any claims to attack the execution
of his sentence. The Court is aware that Mr. Villalobos has also filed an Application for
a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (see 15-cv-2445) and a Prisoner
Complaint (see 15-cv-2443) that assert identical claims as those in this action. If he
wishes to proceed in the instant action, he must state claims that attack the execution of
his sentence and request appropriate habeas corpus relief. If, instead, Mr. Villalobos
wishes to proceed with a civil rights action, he should inform the court and pursue his
claims in his separate action civil rights action, 15-cv-2443.
Accordingly, it is
ORDERED that Applicant, Enrique Villalobos, file an amended application as
directed within thirty (30) days from the date of this order that complies with the
directives of this order. Any papers that Applicant files in response to this order must
include the civil action number on this order. It is
FURTHER ORDERED that Applicant shall obtain the appropriate Court-approved
form for filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
(with the assistance of his case manager or the facility’s legal assistant), along with the
applicable instructions, at www.cod.uscourts.gov, and use that form in filing the
amended application. It is
FURTHER ORDERED that, if Mr. Villalobos fails to file an amended habeas
corpus application as directed within thirty days from the date of this order, the habeas
corpus application may be denied and the action dismissed without prejudice and
without further notice. It is
DATED November 20, 2015, at Denver, Colorado.
BY THE COURT:
Gordon P. Gallagher
United States Magistrate Judge
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