Underwood v. Patterson
SECOND ORDER TO AMEND DEFICIENT PETITION and MEMORANDUM DECISION denying 6 Motion to Amend Plaintiffs Deficient. The conditions under which he tried in that motion to amend his petition are inappropriate.Petitioner should instead follow the instr uctions in this Order. Petitioner shall have THIRTY DAYS from the date of this order to cure the deficiencies noted above. The Clerks Office shall mail Petitioner a copy of the Pro Se Litigant Guide with a proper form petition and civil rights compla int, for him to complete, according to the directions. If Petitioner fails to timely cure the above noted deficiencies in accord with the instructions herein this action will be dismissed without further notice. Signed by Judge David Nuffer (DJ) on 4/3/2012. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
KENNETH RAY UNDERWOOD,
SECOND ORDER TO AMEND
DEFICIENT PETITION &
Case No. 1:11-CV-136 DN
Magistrate Judge David Nuffer
Petitioner, Kenneth Ray Underwood, an inmate at Utah State
Prison, filed a pro se habeas corpus petition.1
Petition, the Court concluded that the Petition was deficient as
On December 13, 2011, the Court ordered
Petitioner to cure the below deficiencies if he wished to pursue
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
This is false.3
Further, Petitioner tried to again
See 28 U.S.C.S. § 2254 (2012).
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:
was apparently not submitted using the help of the
prison's contract attorneys, who are constitutionally
required to assist, at Petitioner's request, in
fashioning initial pleadings in habeas corpus cases
involving current confinement.
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
for judgment for the relief the pleader seeks."4
requirements of Rule 8(a) are intended to guarantee "that
conditions of confinement") (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)
Fed. R. Civ. P. 8(a).
[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
reference, any portion of the original petition or any other
documents previously filed by Petitioner.9
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).
Hall v. Bellmon, 935 F.2d 1106, 1009 (10th Cir. 1991).
Id. at 1110.
Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989).
See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (amendment
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. §
Finally, Petitioner should seek help from the prison's
contract attorneys with preparing initial pleadings.
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
See R. 2, Rs. Governing § 2254 Cases in the U.S. Dist. Courts.
(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.
(4) Petitioner's motion to amend his deficient petition is
The conditions under which he tried in that motion to
amend his petition are inappropriate.
Petitioner should instead
follow the instructions in this Order.
DATED this 3rd day of April, 2012.
BY THE COURT:
DISTRICT JUDGE DAVID NUFFER
United States District Court
(See Docket Entry # 6.)
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