DeYoung v. USA

Filing 6

ORDER TO AMEND DEFICIENT MOTION & MEMORANDUM DECISION. It is hereby ordered that: 1) Movant shall have THIRTY DAYS from the date of this order to cure the deficiencies noted above. 2) The Clerk's Office shall mail Movant a copy o f the Pro Se Litigant Guide with a proper form motion for him to complete, according to the directions. If Movant 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 Clark Waddoups on 11/7/2012. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

RULON FREDERICK DEYOUNG,

ORDER TO AMEND DEFICIENT
MOTION &
MEMORANDUM DECISION

Movant,
v.

Case No. 2:12-CV-821 CW

UNITED STATES OF AMERICA,

District Judge Clark Waddoups

Respondent.

Movant, Rulon Frederick DeYoung, a federal inmate in Taft,
California, filed a document that the Court construes as a pro se
"Motion to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody."

See 28 U.S.C.S. § 2255 (2012).

Reviewing the

Motion, the Court concludes that the Motion is deficient as
described below.

See id.

Movant must cure these deficiencies if

he wishes to pursue his claims.
Deficiencies in Motion:
Motion:
(a)

has claims appearing to be based on the illegality of
Movant's current confinement; however, the motion was
apparently not submitted using the legal help Movant 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 full procedural history of all direct appeals
or post-conviction proceedings, with complete dates.

(c)

is not on a court-approved form.

(d)

has been "supplemented" by other confusing filings that must
be included in any motion to be considered by the Court.
Instructions to Movant
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
claim on which relief can be granted."
1106, 1009 (10th Cir. 1991).

Hall v. Bellmon, 935 F.2d

Moreover, "it is not the proper
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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 [movant] that
assumes facts that have not been pleaded."

Dunn v. White, 880

F.2d 1188, 1197 (10th Cir. 1989).
Movant should consider the following points before refiling
his motion.

First, the revised motion must stand entirely on its

own and shall not refer to, or incorporate by reference, any
portion of the original motion or any other documents previously
filed Movant.

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

Cir. 1998) (amendment supercedes original).

Second,

The motion must:
(1) apecify all the grounds for relief
available to the moving party;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly
handwritten; and
(5) be signed under penalty of perjury by the
movant or by a person authorized to sign it
for the movant.
R. 2(b), Rs. Governing § 2255 Cases in the U.S. Dist. Courts.
Third, Movant may generally not bring civil rights claims as to
the conditions of his confinement in a habeas-corpus motion.
Fourth, any claims about Movant's underlying conviction and/or
sentencing should be brought under 28 U.S.C.S. § 2255; any claims
about the execution of Movant's sentence should be brought under

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28 U.S.C.S. § 2241.

Finally, Movant should seek legal assistance

from prison staff to prepare initial pleadings.
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
(1) Movant shall have THIRTY DAYS from the date of this
order to cure the deficiencies noted above.
(2) The Clerk's Office shall mail Movant a copy of the Pro
Se Litigant Guide with a proper form motion for him to complete,
according to the directions.

See R. 2(c), Rs. Governing § 2255

Cases in the U.S. Dist. Courts ("The motion must substantially
follow either the form appended to these rules or a form
prescribed by a local district-court rule.

The clerk must make

forms available to moving parties without charge.").
(3) If Movant fails to timely cure the above-noted
deficiencies in accord with the instructions herein this action
will be dismissed without further notice.
DATED this 7th day of November, 2012.
BY THE COURT:

_____________________________
JUDGE CLARK WADDOUPS
United States District Court

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