January 29, 2014
TIMOTHY EDWARD HOLZ, Applicant,
J. OLIVER, Warden, Respondent.
ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES
BOYD N. BOLAND, Magistrate Judge.
Applicant, Timothy Edward Holz, is a prisoner in the custody of the Federal Bureau of Prisons who currently is incarcerated at the United tates Penitentiary, High Security, in Florence, Colorado. He initiated this action by submitting pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 titled "Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2242" (ECF No. 1) and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 3).
After review pursuant to D.C.COLO.LCivR 8.1(b), the Court has determined that the submitted documents are deficient as described in this order.
Mr. Holtz complains about his prison diet. The Court finds that Mr. Holz is asserting civil rights claims rather than habeas corpus claims. "The essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and... the traditional function of the writ is to secure release from illegal custody." See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Generally, a federal prisoner's challenge to his conditions of confinement is cognizable under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and 28 U.S.C. § 1331. See Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011). Mr. Holz is challenging the conditions of his confinement, not the basis for his conviction and sentence on criminal charges.
Mr. Holz will be directed to cure the following if he wishes to pursue his claims. Any papers that Mr. Holz files in response to this order must include the civil action number on this order.
28 U.S.C. § 1915 Motion and Affidavit:
(1) ___ is not submitted
(2) ___ is missing affidavit
(3) ___ is missing certified copy of prisoner's trust fund statement for the 6-month period immediately preceding this filing
(4) ___ is missing certified statement showing current balance in prison account
(5) ___ is missing required financial information
(6) ___ is missing an original signature by the prisoner
(7) X is not on proper form (must submit the court's current form revised 10/01/12 with Authorization and Certificate of Prison Official and complete all pages of the form)
(8) ___ names in caption do not match names in caption of complaint, petition or habeas application
(9) ___ An original and a copy have not been received by the court. Only an original has been received.
(10) X other: The § 1915 motion and affidavit and certificate showing prison account balance are necessary only if the $400.00 filing fee is not paid in full in advance.
Complaint, Petition or Application:
(11) ___ is not submitted
(12) X is not on proper form (must use the court's Prisoner Complaint form)
(13) ___ is missing an original signature by the prisoner
(14) ___ is missing page nos. ___
(15) ___ uses et al. instead of listing all parties in caption
(16) ___ An original and a copy have not been received by the court. Only an original has been received.
(17) ___ Sufficient copies to serve each defendant/respondent have not been received by the court.
(18) ___ names in caption do not match names in text
(19) ___ other:
Accordingly, it is
ORDERED that the action is construed as a civil rights action filed pursuant to Bivens rather than as a habeas corpus action pursuant to 28 U.S.C. § 2241. It is
FURTHER ORDERED that the clerk of the Court is directed to correct the nature of suit on its docketing records. It is
FURTHER ORDERED that Plaintiff, Timothy Edward Holz, cure the deficiencies designated above within thirty days from the date of this order. Any papers that Mr. Holz files in response to this order must include the civil action number on this order. It is
FURTHER ORDERED that Mr. Holz shall obtain the court-approved forms for filing a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and Prisoner Complaint (with the assistance of his case manager or the facility's legal assistant), along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Holz fails to cure the designated deficiencies within thirty days from the date of this order, the action will be dismissed without further notice.