Redmond v. Rivera

Filing 11

MEMORANDUM DECISION AND ORDER denying 8 Motion for Entry of Default as premature. Petitioner shall have thirty days to file an Amended Petition. The Clerk's Office shall mail Petitioner a copy of the Pro Se Litigant Guide w ith a proper form petition and/or civil-rights complaint for him to complete, according to directions. If Petitioner fails to timely cure the Petition's deficiencies, as instructed herein, this action will be dismissed without further notice. Signed by Judge Dale A. Kimball on 9/7/2021. (eat)

Case 2:20-cv-00437-DAK Document 11 Filed 09/07/21 PageID.21 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

JOHN REDMOND,
Petitioner,
v.

MEMORANDUM DECISION
& ORDER TO AMEND
DEFICIENT PETITION
Case No. 2:20-CV-437-DAK

ROSIE RIVERA,

District Judge Dale A. Kimball
Respondent.

Petitioner, inmate John Redmond, filed a pro se habeas-corpus petition, under 28
U.S.C.S. § 2241 (2021) (“The writ of habeas corpus shall not extend to a prisoner unless . . . he
is in custody in violation of the Constitution or laws or treaties of the United States . . . .”).
Reviewing the Petition, (ECF No. 5), the Court concludes that it must be amended to cure the
below deficiencies if Petitioner wishes to further pursue his claims.
DEFICIENCIES IN PETITION
Petition:
(a)

impermissibly asserts civil-rights claims (e.g., conditions of confinement) which are
appropriately brought in separate § 1983 complaint/case.1

(b)

does not request the core relief expected of habeas petition: release from custody.

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Indeed, it appears likely that Petitioner is trying to make an end run around the constraints he faces. Now that he
has filed in the federal-court system at least three prisoner civil-rights cases that fail to state a claim upon which
relief may be granted, see Redmond v. Ritchie, No. 1:17-CV-188-LJM-DML (S.D. Ind. Jan. 24, 2017), he knows
that he must pay the whole $350 court filing fee up front to initiate a prisoner civil complaint. See 28 U.S.C.S. §
1915(g) (2021). Thus, he has filed in this Court a spate of § 2241 petitions--at a cost of $5 per case, and not limited
by § 1915(g)--when the types of claims brought are really civil-rights claims.

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(c)

has claims possibly based on illegality of Petitioner's current confinement; however,
petition apparently not submitted using legal help Petitioner entitled to by Petitioner’s
institution under Constitution--e.g., by contract attorneys. 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 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. 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).

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Petitioner should consider the following general points before refiling his petition:
(a) Revised petition must stand entirely on its own and 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 supersedes original)
(b) Petitioner must clearly state whom his custodian is and name that person (warden or ultimate
supervisor of imprisonment facility) as the respondent. Cf. R.2, Rs. Governing § 2254 Cases in
the U.S. Dist. Courts.
(c) Federal rule requires the petition to:
(1) specify all the grounds for relief available to the
petitioner;
(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 petitioner or
by a person authorized to sign it for the petitioner under 28 U.S.C.
§ 2242.
Cf. R.2(c), Rs. Governing § 2254 Cases in the U.S. Dist. Courts.
(d) Petitioner may generally not bring civil-rights claims as to conditions of confinement in a
habeas-corpus petition.
(e) Any claims about Petitioner's underlying conviction and/or sentencing should be brought
under 28 U.S.C.S. § 2254 (2020); any claims about the execution of Petitioner's imprisonment
should be brought under id. § 2241.
(f) Petitioner should get help to prepare initial pleadings from legal resources available where
Petitioner is held.

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ORDER
IT IS HEREBY ORDERED that:
(1) Petitioner shall have thirty days to cure the above deficiencies. In response to this Order, the
Court will accept one document entitled, “Amended Petition.” The Amended Petition shall
include all issues, arguments, and citations in one document, with no reference to any other
document. The Amended Petition is the only document the Court will review to determine
whether to order Respondent to answer. Cf. R.4, Rs. Governing § 2254 Cases in the U.S. Dist.
Cts. (stating court--on its own--shall examine petition for petitioner’s entitlement to relief and
dismiss petition or order answer as warranted).
(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 directions.
(3) If Petitioner fails to timely cure the above-noted deficiencies, as instructed here, this action
will be dismissed without further notice.
(4) Petitioner must tell the Court of any address change and timely comply with Court orders.
See D. Utah Civ. R. 83-1.3(e) ("In all cases, counsel and parties appearing pro se must notify the
clerk's office immediately of any change in address, email address, or telephone number.").
Failure to do so may result in this action’s dismissal for failure to prosecute. See Fed. R. Civ. P.
41(b) (“If the [petitioner] fails to prosecute or to comply with these rules or a court order, a
[respondent] may move to dismiss the action or any claim against it. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule-except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19-operates as an adjudication on the merits.”).

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(5) Extensions of time are disfavored, though reasonable extensions may be granted. Any
motion for time extension must be filed no later than fourteen days before the deadline to be
extended.
(6) No direct communication is to take place with any judge. All relevant information, letters,
documents, and papers, labeled with case number, are to be directed to the Clerk of Court.
(7) Petitioner’s motion for default judgment is DENIED as premature. (ECF No. 8.) There is no
valid petition on file as of this Order and it is up to the Court to determine when and whether to
order an answer. R.4, Rs. Governing § 2254 Cases in the U.S. Dist. Cts.
DATED this 7th day of September, 2021.
BY THE COURT:

JUDGE DALE A. KIMBALL
United States District Court

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