Glivar v. Weld County

          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. ...