United States District Court, D. Colorado
RECOMMENDATION OF DISMISSAL
Gordon
P. Gallagher, United States Magistrate Judge
This
matter comes before the Court on the “Emergency Motion
to File Lawsuit” (ECF No. 1).[1] Plaintiff proceeds pro
se. The matter has been referred to this Magistrate
Judge for recommendation (ECF No. 7).[2] The Court has considered the
entire case file, the applicable law, and is sufficiently
advised in the premises. This Magistrate Judge respectfully
recommends that the Complaint be dismissed without prejudice.
I.
Factual and Procedural Background
Petitioner,
Maria Marie Glivar, was detained in the Weld County Jail when
she initiated this action on March 20, 2019. Ms. Glivar
filed, pro se an “Emergency Motion to File
Lawsuit” (ECF No. 1), in which she claims that her
constitutional rights are being violated in a pending
criminal proceeding in the Weld County District Court. For
relief, she asks that she be released from detention. The
clerk of the court opened a habeas corpus action pursuant to
28 U.S.C. § 2241. See Walck v. Edmondson, 472
F.3d 1227, 1235 (10th Cir. 2007) (detainee may challenge the
legality of his or her pre-trial detention under §
2241); see also Yellowbear v. Wyo. Att'y Gen.,
525 F.3d 921, 924 (10th Cir. 2008) (same).
On
March 21, 2019, the Court reviewed Ms. Glivar's filing
pursuant to D.C.COLO.LCiv Rule 8.1(b) and directed her to
cure filing deficiencies within 30 days. (ECF No.3).
Specifically, she was ordered to submit her claims on the
court-approved Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241, and to either pay the
$5.00 filing fee or submit a Prisoner's Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915 in a Habeas Action. (Id.). The clerk of the
court was directed to send Ms. Glivar copies of the
court-approved forms. (Id.). Ms. Glivar was warned
that failure to comply would result in dismissal of this
action without further notice. (Id.).
In the
March 21 Order, Ms. Glivar was further directed to show
cause, in writing, within 30 days, why her claims were not
barred by the abstention doctrine of Younger v.
Harris, 401 U.S. 37 (1971), because she appeared to be
asking the Court to intervene or enjoin a pending state
criminal proceeding. (Id.). Ms. Glivar was warned
that failure to comply would result in dismissal of this
action without further notice. (Id.).
On
March 27, 2019, Ms. Glivar filed a Letter in response to the
March 21 Order in which she states that “a complete
investigation will determine I am the victim of several
crimes committed by the defendants.” (ECF No. 4 at 1).
She further states that her constitutional rights have been
violated by Weld County; that the criminal charges pending
against her should have been dropped; that information as to
her competency was fabricated; and that she has been
“incarcerated without cause” since August 31,
2018. (Id. at 2). Ms. Glivar also asserts that the
Weld County jail is unable to provide her with copies of the
court-approved forms.
II.
Legal Standards
A.
Pro se Litigant
The
Court construes Ms. Glivar's filings liberally because
she is not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 52021 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court will not act as an advocate for a pro se litigant.
See Hall, 935 F.2d at 1110.
B.
Younger abstention
The
Court lacks jurisdiction to enjoin or intervene in an ongoing
state criminal action absent extraordinary circumstances.
See Younger, 401 U.S. 37; Phelps v.
Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). The
Younger doctrine “requires a federal court to
abstain from hearing a case where . . . (1) state judicial
proceedings are ongoing; (2) [that] implicate an important
state interest; and (3) the state proceedings offer an
adequate opportunity to litigate federal constitutional
issues.” Winnebago Tribe of Neb. v. Stovall,
341 F.3d 1202, 1204 (10th Cir. 2003); see also Middlesex
Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457
U.S. 423, 432 (1982).
III.
Analysis
Ms.
Glivar has failed to cure the filing deficiencies, as
directed in the March 21 Order. Although she asserts that the
Weld County Jail is unable to provide her with the necessary
forms, she fails to address the fact that the clerk of the
court mailed copies of the court-approved forms to her, along
with a copy of the March 21 Order. ...