Jones v. USA

Filing 7

MEMORANDUM DECISION and Second Order to Amend Deficient Petition. It is hereby ordered that: Petitioner shall have THIRTY DAYS from the date of this order to cure the deficiencies noted above. The Clerk's Office shall mail Petiti oner 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. If Petitioner fails to timely cure the above noted deficiencies, as instructed herein, this action will be dismissed without further notice. Signed by Judge Tena Campbell on 11/13/2013. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

MICHAEL JONES,

MEMORANDUM DECISION
& SECOND ORDER TO AMEND
DEFICIENT PETITION

Petitioner,
v.

Case No. 2:13-CV-593 TC

LARRY BUSSIO et al.,

District Judge Tena Campbell

Respondents.

Petitioner, Michael Jones, an inmate at Utah State Prison, filed an amended pro se habeas
corpus petition. See 28 U.S.C.S. § 2254 (2013). Reviewing the Amended Petition, the Court
concludes that the Amended Petition is deficient as described below. See id. Petitioner must
cure these deficiencies if he wishes to pursue his claims.
Deficiencies in Amended Petition:
Amended Petition:
(a)

does not state grounds for relief.

(b)

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)).
Instructions to Petitioner
Under Rule 8 of the Federal Rules of Civil Procedure an initial pleading must 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. 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 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 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 (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 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.
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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 13th day of November, 2013.
BY THE COURT:

_____________________________
JUDGE TENA CAMPBELL
United States District Court

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