Kee v. Brown et al
ORDER TO AMEND DEFICIENT PETITION & MEMORANDUM DECISION granting 4 Motion to Voluntarily Dismiss Issue III First Amendment Right Issue. Petitioner shall have thirty days from the date of this order to cure the deficiencies noted within this order. See order for details. Signed by Judge Dee Benson on 6/2/2011. (rlr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ORDER TO AMEND DEFICIENT
PETITION & MEMORANDUM DECISION
Case No. 2:11-CV-285 DB
WILLIAM BROWN JR. et al.,
District Judge Dee Benson
Petitioner, Charles Kee, a federal inmate housed at Utah
State Prison, filed a pro se habeas corpus petition.
U.S.C.S. § 2241 (2011).
Reviewing the Petition to determine
whether to order an answer, the Court concludes that the Petition
is deficient as described below.
Petitioner must cure
these deficiencies if he wishes to pursue his claims.
Deficiencies in Petition:
has claims appearing to be based on the illegality of
Petitioner's current confinement; however, the petition
was apparently not submitted using the legal help
Petitioner 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)).
does not identify the proper respondent, as the
respondent should be the warden, superintendent, jailer
or other custodian.
appears to allege claims regarding Petitioner's
conditions of confinement--i.e., legal access--which
are inappropriately brought in this habeas petition.
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."
Fed. R. Civ. P.
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."
Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo.
1991), aff’d, 964 F.2d 1022 (10th Cir. 1992).
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."
Hall v. Bellmon, 935 F.2d
1106, 1009 (10th Cir. 1991).
Moreover, "it is not the proper
function of the Court to assume the role of advocate for a pro se
Id. at 1110.
Thus, the Court cannot "supply
additional facts, [or] construct a legal theory for [petitioner]
that assumes facts that have not been pleaded."
Dunn v. White,
880 F.2d 1188, 1197 (10th Cir. 1989).
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.
See Murray v.
Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (amendment
Second, the petitioner must clearly state
whom his custodian is and name that person as the respondent.
See R. 2, Rs. Governing § 2254 Cases in the U.S. Dist. Courts.
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
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 for him to
complete, according to the directions;
(3) if Petitioner fails to timely cure the above noted
deficiencies in accordance with the instructions herein this
action will be dismissed without further notice; and,
(4) Petitioner's motion to dismiss his inappropriately
brought conditions-of-confinement claim regarding his religious
diet is GRANTED.
(See Docket Entry # 4.)
DATED this 2nd day of June, 2011.
BY THE COURT:
United States District Judge
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