Fleming v. Bigelow

Filing 6

ORDER TO AMEND DEFICIENT PETITION AND MEMORANDUM DECISION that Petitioner shall have THIRTY DAYS from the date of this order to cure the deficiencies noted in this Order ; that the Clerk's Office shall mail Petitioner a copy of thePro Se Litigant Guide ; that if Petitioner fails to timely cure the noted deficiencies in accordance with the instructions herein this action will be dismissed without further notice. Signed by Judge Bruce S. Jenkins on 06/03/2011. (asp)

IN THE UNITED STATES DISTRICT COURTOiI
FOR THE DISTRICT OF UTAH

JUN - 3 P ~; 02

BY:___._ __
DEPUTY CLER1\
CARL STANLEY FLEMING,

ORDER TO AMEND DEFICIENT
PETITION & MEMORANDUM DECISION

Petitioner,

v.

Case No. 2:11-CV-310 BSJ

ALFRED BIGELOW,
District Judge Bruce Jenkins
Respondent.

Petitioner, Carl Stanley Fleming, an inmate at the Utah
State Prison, filed this pro se habeas corpus petition.
U.S.C.S.

§

2254 (2011).

See 28

In reviewing the petition to determine

whether to order an answer, the Court has determined that
Petitioner's petition is deficient as described in this Order.
See id.

Petitioner must cure these deficiencies if he wishes to

pursue his claims.
Deficiencies in Petition:

Petition:
(a)

is submitted with an inconsistent "Memorandum in
Support of Petitioner's § 2254 Writ of Habeas Corpus,"
in which Petitioner alleges different claims and
underlying allegations than he does in his Petition.

(b)

should be submitted after consultation with prison
contract attorneys who will be able to help Petitioner
incorporate all his claims into the same pleading,
which should be an amended petition, complete in
itself.

Instructions to Petitioner

Under Rule 8 of the Federal Rules of Civil Procedure an
initial pleading is required to contain n{l) a short and plain
statement of the grounds upon which the court1s 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."
8{a).

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.,

II

TV Commc'ns

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.
1106, 1009 (lOth Cir. 1991).

II

Hall v. Bellmon, 935 F.2d

Moreover, "it is not the proper

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

Id. at 1110.

additional facts,

Thus, the Court cannot "supply

[or] construct a legal theory for [petitioner]

2

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 his support
memorandum.
1998)

See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir.

(amendment supercedes original).

must clearly state
the respondent.

his custodian

Second, the petitioner
and name that person as

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, ?etitioner 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;
3

(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.
DATED this:?

day of June, 2011.

BY THE COURT:

istrict Judge

4