Sarabia-Martinez v. Shapiro et al

Filing 7

ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCY by Magistrate Judge Gordon P. Gallagher on 3/18/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00242-GPG
JOSE RICARDO SARABIA-MARTINEZ,
Plaintiff,
v.
Ist ATTORNEY GENERAL ROBERT SHAPIRO, and
DENVER DISTRICT ATTORNEY LARA MULLINS,
Defendants.

ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCY

Plaintiff Jose Ricardo Sarabia-Martinez initiated this action by filing a Prisoner
Complaint. The Court reviewed the Complaint and found that it was deficient, because
Plaintiff failed to complaint the Request for Relief section of the complaint form. Plaintiff
was directed to cure the deficiency, which he did on March 2, 2016, by providing the page
of the complaint form that includes the Request for Relief section and stating in that
section as follows.
The Plaintiff humbly requests this Court to consider and overturn the
decision made in respect to the Plaintiff=s unreasonable and excessive
bond in his case, and to set a new bond that is fitting for the charges and
reasonable. The Plaintiff would also like to inform the Court that he is
being held on charges not exceeding a Class 4 Felony, and does not
believe that this bond is at all fitting the alleged crimes, especially with the
lack of physical or other evidence against Mr. Sarabia-Martinez. The
Plaintiff would like to request his right to a fair trial, and freedom from any
personal vendettas against him, as he has been incarcerated for
approximately a year under this unreasonable and outrageous bond.
ECF No. 5 at 1.
Upon review of Plaintiff=s request for relief, the Court has determined Plaintiff is
challenging his detainment based on excessive bail. Plaintiff may not raise a request for
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release in a ' 1983 action; a challenge to the execution of his detainment more properly is
raised in a habeas action. See Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir.
2005) ( A[a] prisoner may use ' 1983 to challenge the conditions of [her] confinement,@
habeas is Athe 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[A] state court defendant attacking his pretrial detention
should bring a habeas petition pursuant to the general grant of habeas authority
contained within 28 U.S.C. ' 2241.@ Walck v. Edmondson, 472 F.3d 1227, 1235 (10th
Cir. 2007); Yellowbear v. Wyo. Att=y Gen., 525 F.3d 921, 924 (10th Cir. 2008). If Plaintiff,
therefore, is directed to 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 deficiency designated above within thirty days
from the date of this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the proper Court-approved form
for filing a 28 U.S.C. ' 2241 action (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 the deficiency. It is
FURTHER ORDERED that if Plaintiff fails to cure the designated deficiency within
thirty days from the date of this Order the action will be dismissed without further
notice.
DATED March 18, 2016, at Denver, Colorado.
BY THE COURT:
s/Gordon P. Gallagher
United States Magistrate Judge

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