Cheesebrough v. Gill

Filing 8

MEMORANDUM DECISION and ORDER to Amend Deficient Petition. Signed by Judge Robert J. Shelby on 01/09/2014. (tls)

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IN THE UNITED STATES DISTRICT COURT ZOJ~ JAN I
A IQ: 28
FOR THE DISTRICT OF UTAH
D/STRleT OF 0 lAB
BRENDAN ROSS CHEESEBROUGH,
Petitioner,

MEMORANDUM:DECISION
& ORDER TO ~CLERK­
DEFICIENT PETITION
Case No. 2: 13-CV-264 RJS

v.

District Judge Robert Shelby

SIM GILL,
Respondent.

Petitioner, Brendan Ross Cheesebrough, an inmate at Salt Lake County Adult Detention
Center, filed a pro se habeas corpus petition. See 28 U.S.C.S. § 2254 (2013). 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)

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

(b)

inappropriately requests relief under § 2254 for some claims that appear to be more
properly brought under § 2241.

(c)

appears to allege claims regarding Petitioner's conditions of confinement, which are
inappropriately brought in this habeas petition and should instead be brought in a § 1983
complaint in a separate case.

(d)

lists a respondent other than his custodian.

(e)

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 11 '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».
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. 8(a). 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." Hall v. Beilmon, 935 F.2d 1106,
1009 (lOth Cir. 1991). 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 (lOth Cir. 1989).

Petitioner should consider the following general 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 (lOth Cir. 1998) (amendment
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supercedes original). Second, the petitioner must clearly state whom his custodian is and name
that person (a warden or ultimate supervisor of an imprisonment 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. Fifth, Petitioner should seek help to prepare initial pleadings
from legal resources available where he is held.

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/or civil-rights complaint 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.
DATED this 1day of January, 2014.

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