Underwood v. Patterson

Filing 11

THIRD ORDER TO AMEND DEFICIENT PETITION and MEMORANDUM DECISION: Petitioner shall have 30 days from the date of this order to cure deficiencies. Signed by Judge David Nuffer on 6/7/12 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

KENNETH RAY UNDERWOOD,

THIRD ORDER TO AMEND DEFICIENT
PETITION & MEMORANDUM DECISION

Petitioner,
Case No. 1:11-CV-136 DN
v.
District Judge David Nuffer
THOMAS PATTERSON,
Respondent.

Petitioner, Kenneth Ray Underwood, an inmate at Cache County
Jail, filed a pro se habeas corpus petition.1

Reviewing the

Petition, the Court concluded that the Petition was deficient as
described below.2

On December 13, 2011, the Court ordered

Petitioner to cure the below deficiencies if he wished to pursue
his claims.
In response, Petitioner challenged the Court's mandate that
Petitioner seek the constitutionally required help of the
prison's contract attorneys.

Petitioner stated that contract

attorneys have no duty to help him with his initial habeas
pleading.

This is false.3

Further, Petitioner tried to again

1

See 28 U.S.C.S. § 2254 (2012).

2

See id.

3
See Lewis v. Casey, 518 U.S. 343, 356 (1996) (requiring prisoners be
given "'adequate law libraries or adequate assistance from persons trained in
the law' . . . to ensure that inmates . . . have a reasonably adequate
opportunity to file nonfrivolous legal claims challenging their convictions or

name Thomas Patterson as his custodian, when his custodian is the
warden of the facility in which he is imprisoned.
The Court repeats the prior information which remains
applicable to the petition's deficiencies.
Deficiencies in Petition:
Petition:
(a)

has claims appearing to be based on conditions of
current confinement; however, the complaint was
apparently not submitted using the legal help Plaintiff
is entitled to by his institution under the
Constitution. See Lewis v. Casey, 518 U.S. 343, 356
(1996) (requiring prisoners be given "'adequate law
libraries or adequate assistance from persons trained
in the law' . . . to ensure that inmates . . . have a
reasonably adequate opportunity to file nonfrivolous
legal claims challenging their convictions or
conditions of confinement") (quoting Bounds v. Smith,
430 U.S. 817, 828 (1977) (emphasis added)).

(b)

lists a respondent other than his custodian.
Repeated Instructions to Petitioner
Under Rule 8 of the Federal Rules of Civil Procedure an

initial pleading is required to contain "(1) a short and plain
statement of the grounds upon which the court's jurisdiction
depends, . . . (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand

conditions of confinement") (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)
(emphasis added)).

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for judgment for the relief the pleader seeks."4

The

requirements of Rule 8(a) are intended to guarantee "that
[respondents] enjoy fair notice of what the claims against them
are and the grounds upon which they rest."5
Pro se litigants are not excused from compliance with the
minimal pleading requirements of Rule 8.

"This is so because a

pro se [litigant] requires no special legal training to recount
the facts surrounding his alleged injury, and he must provide
such facts if the court is to determine whether he makes out a
claim on which relief can be granted."6

Moreover, "it is not the

proper function of the Court to assume the role of advocate for a
pro se litigant."7

Thus, the Court cannot "supply additional

facts, [or] construct a legal theory for [petitioner]
that assumes facts that have not been pleaded."8
Petitioner should consider the following points before
refiling his petition.

First, the revised petition must stand

entirely on its own and shall not refer to, or incorporate by

4

Fed. R. Civ. P. 8(a).

5

TV Commc'ns Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D.
Colo. 1991), aff’d, 964 F.2d 1022 (10th Cir. 1992).
6

Hall v. Bellmon, 935 F.2d 1106, 1009 (10th Cir. 1991).

7

Id. at 1110.

8

Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989).

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reference, any portion of the original petition or any other
documents previously filed by Petitioner.9

Second, the

petitioner must clearly state whom his custodian is and name that
person as the respondent.10

Third, Petitioner may generally not

bring civil rights claims as to the conditions of his confinement
in a habeas corpus petition.

Fourth, any claims about

Petitioner's underlying conviction and/or sentencing should be
brought under 28 U.S.C.S. § 2254; any claims about the execution
of Petitioner's sentence should be brought under 28 U.S.C.S. §
2241.

Finally, Petitioner should seek help from the jail for

legal help in preparing initial pleadings.
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
(1) Petitioner shall have THIRTY DAYS from the date of this
order to cure the deficiencies noted above.
(2) The Clerk's Office shall mail Petitioner a copy of the
Pro Se Litigant Guide with a proper form petition and civil
rights complaint, for him to complete, according to the
directions.

9

See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (amendment
supercedes original).
10

See R. 2, Rs. Governing § 2254 Cases in the U.S. Dist. Courts.

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(3) If Petitioner fails to timely cure the above noted
deficiencies in accord with the instructions herein this action
will be dismissed without further notice.
DATED this 7th day of June, 2012.
BY THE COURT:

_____________________________
DISTRICT JUDGE DAVID NUFFER
United States District Court

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