United States District Court, D. Colorado
October 28, 2014
ALEXANDER S. MARDIS, Applicant,
JAMES FALK, RICK RAEMISCH, J. ANDERSON, LA II, and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents.
ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES
BOYD N. BOLAND, Magistrate Judge.
Alexander S. Mardis, is a prisoner in the custody of the Colorado Department of Corrections ("CDOC") currently incarcerated at the correctional facility in Sterling, Colorado. He has submitted pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) and a document titled "Writ of Habeas Corpus/Affidavit of Truth/Complaint" (ECF No. 3). In the Application, Mr. Mardis asserts that prison officials have committed mail fraud and have refused to provide him with his legal property and proper court forms. For relief, he requests that the Court vacate or modify his state conviction and seeks injunctive and declaratory relief as well as monetary damages. Mr. Mardis is advised that he may not assert civil rights claims in a habeas corpus action.
"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). "Petitions under § 28 U.S.C. § 2254 habeas and § 2255 proceedings are used to collaterally attack the validity of a conviction and sentence." See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997).
It is well established in the Tenth Circuit that a habeas corpus application is an improper vehicle for a prisoner to challenge the conditions of his confinement. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir. 1997). Generally, a state prisoner's challenge to his conditions of confinement is cognizable under 42 U.S.C. § 1983. Id.
As part of the Court's 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. Mardis will be directed to cure the following if he wishes to pursue his claims. Any papers that Mr. Mardis files in response to this Order must include the civil action number noted above in the caption of this Order.
28 U.S.C. § 1915 Motion and Affidavit:
(1) X 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) X is missing certificate showing current balance in prison account (if filing habeas corpus application)
(5) ___ is missing required financial information
(6) ___ is missing an original signature by the prisoner
(7) ___ is not on proper form (must use the court's current form for filing prisoner complaints)
(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: Instead of submitting the § 1915 motion and supporting documentation, Applicant may pay the $5.00 filing fee in advance.
Complaint, Petition or Application:
(11) ___ is not submitted
(12) ___ is not on proper form (must use the court's current 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) X other: the only proper Respondent in a habeas corpus action is Applicant's current warden, superintendent, jailer, or other custodian.
Accordingly, it is
ORDERED that Applicant cure the deficiencies designated above within thirty (30) days from the date of this order. Any papers that Applicant files in response to this order must include the civil action number on this order. It is
FURTHER ORDERED that Applicant 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 in a Habeas Corpus Action and an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (with the assistance of his case manager or the facility's legal assistant), along with the applicable instructions, at www.cod.uscourts.gov, and use these forms in curing the designated deficiencies. It is
FURTHER ORDERED that, if Applicant fails to cure the designated deficiencies within thirty (30) days from the date of this order, the action will be dismissed without further notice. The dismissal shall be without prejudice.