Underwood v. Patterson

Filing 9

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 &
MEMORANDUM DECISION

Petitioner,
v.

Case No. 1:11-CV-136 DN

THOMAS PATTERSON,

Magistrate Judge David Nuffer

Respondent.

Petitioner, Kenneth Ray Underwood, an inmate at Utah State
Prison, 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)

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.

(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
for judgment for the relief the pleader seeks."4

The

requirements of Rule 8(a) are intended to guarantee "that

conditions of confinement") (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)
(emphasis added)).
4

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

2

[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

Second, the

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).

9

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

3

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 prison's

contract attorneys with 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.

10

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

4

(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
DENIED.11

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

11

(See Docket Entry # 6.)

5