Bolith v. State of Utah

Filing 15

ORDER denying 2 Motion to Suppress Evidence; denying 3 Motion to Quash; denying 3 Motion to Vacate; denying 3 Motion to Exonerate; denying 8 Motion for Appeal; denying 9 Motion to Exonerate; denying 10 Motion to Amend/Correct; de nying 11 Motion to submit for decision; denying 12 Motion to object. Petitioner shall have 30 days from the date of this order to cure the deficiencies in Petition; failure to do so will result in this action being dismissed without further notice. Signed by Judge Dale A. Kimball on 2/23/12 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

JACOB MUT BOLITH,
Petitioner,
v.

ORDER TO AMEND DEFICIENT
PETITION &
MEMORANDUM DECISION
Case No. 2:11-CV-1214 DAK

STATE OF UTAH,

District Judge Dale A. Kimball

Respondent.

Petitioner, Jacob Mut Bolith, an inmate at Sanpete County
Jail, filed a pro se habeas corpus petition.
2254 (2012).

See 28 U.S.C.S. §

Reviewing the Petition, the Court concludes that

the Petition is deficient as described below.

See id.

Petitioner must cure these deficiencies if he wishes to pursue
his claims.
Deficiencies in Petition:
Petition:
(a)

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)).

(b)

does not list the full procedural history of all direct
appeals or post-conviction proceedings, with complete
dates.

(c)

lists a respondent other than his custodian.

(d)

is confusing based on all the extra documents he has
filed since, containing information that must be
incorporated into a cohesive amended petition to be
considered.
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."
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."

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).
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

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claim on which relief can be granted."
1106, 1009 (10th Cir. 1991).

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.

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
supercedes original).

Second, the petitioner must clearly state

whom his custodian is and name that person (a warden or ultimate
supervisor of a jail facility) 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.
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Finally, Petitioner should

seek legal assistance from jail staff to prepare 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 for him to
complete, according to the directions.
(3) If Petitioner fails to timely cure the above-noted
deficiencies, as instructed herein, this action will be dismissed
without further notice.
(4) All Petitioner's pending motions are DENIED as premature
because he has not yet filed an adequate petition.
Entry #s 2, 3, 8, 9, 10, 11, & 12.)
DATED this 23rd day of February, 2012.
BY THE COURT:

_____________________________
JUDGE DALE A. KIMBALL
United States District Court

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(See Docket