Smith v. Adams County Court Division 5

Filing 9

SECOND ORDER TO CURE DEFICIENCIES by Magistrate Judge Gordon P. Gallagher on 3/17/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00430-GPG
ELAINE SMITH,
Applicant,
v.
ADAMS COUNTY COURT DIVISION 5,
Respondent.

SECOND ORDER TO CURE DEFICIENCIES
Applicant, Elaine Smith, is currently incarcerated at the Jefferson County
Detention Facility. On February 22, 2016, she initiated this action by filing pro se a
Prisoner Complaint pursuant to 42 U.S.C. § 1983, in which she requested to be
released from custody (ECF No. 1) and a Prisoner’s Motion and Affidavit for Leave to
Proceed Under 28 U.S.C. § 1915 (ECF No. 2).
On February 25, 2016, the Court reviewed the documents pursuant to
D.C.COLO.LCivR 8.1(b) and determined that they were deficient. Magistrate Judge
Gallagher directed Ms. Smith to cure the designated deficiencies if she wished to
pursue her claim in this action. Specifically, Ms. Smith was instructed that she may not
raise a request for release from custody in a Prisoner Complaint. (ECF No. 4 at 1). A
challenge to the execution of a sentence should be 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
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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). Therefore, Ms. Smith was instructed to file a § 2241habeas application on the
court-approved form if she was seeking to challenge the execution of her sentence.
In response, Ms. Smith filed an Application for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (ECF No. 6), a “Motion for Credit for Time Served” (ECF No. 8),
and a “Prisoner’s Motion and Affidavit for Leave to Proceed on Appeal Pursuant to 28
U.S.C. § 1915 and Fed. R. App. P. 24 in a Habeas Corpus Action” (ECF No. 7). 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 also deficient. Applicant will be given one last
opportunity to cure the following if she wishes to pursue her claim in this Court in this
action. Any papers that Plaintiff files in response to this Order must include the civil
action number noted above in the caption of this Order.
28 U.S.C. § 1915 Motion and Affidavit:
(1)
is not submitted
(2)
is missing affidavit
(3)
prisoner's trust fund statement is not certified
(4)
X
is missing required financial information (no inmate account information
was attached).
(5)
is missing an original signature by the prisoner
(6)
X
is not on proper form (must use the court-approved Prisoner’s Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a
Habeas Corpus Action form not the form for appeals).
(7)
names in caption do not match names in caption of complaint, petition or
habeas application
(8)
An original and a copy have not been received by the court. Only an
original has been received.
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(9)

other:

Complaint, Petition or Application:
(10)
is not submitted
(11)
is not on proper form (must use a Court-approved form)
(12)
is missing an original signature by the prisoner
(13)
is missing page nos.
(14)
uses et al. instead of listing all parties in caption
(15)
an original and a copy have not been received by the court. Only an
original has been received.
(16)
sufficient copies to serve each defendant/respondent have not been
received by the court.
(17)
names in caption do not match names in text
(18)
X
other: Applicant must include the date when she signs the
application.
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 Applicant shall obtain the proper Court-approved
forms for filing a 28 U.S.C. § 2241 action and a Prisoner’s Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (with the
assistance of her case manager or the facility’s legal assistant), along with the
applicable instructions, at www.cod.uscourts.gov for use in curing the deficiencies. It is
FURTHER ORDERED that if Applicant 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 17, 2016, at Denver, Colorado.
BY THE COURT:
s/Gordon P. Gallagher
United States Magistrate Judge

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