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Glivar v. State

United States District Court, D. Colorado

May 15, 2019

MEIGRE MARIE GLIVAR, Petitioner,
v.
STATE OF COLORADO, U.S. COURT 21, and GORDON P. GALLAGHER, Respondents.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          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. 5).[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, initiated this action on April 3, 2019 by filing pro se an “Emergency Motion to File Lawsuit” (ECF No. 1). Ms. Glivar claims that she is being detained unlawfully at the Weld County Jail. For relief, she seeks immediate release from custody. 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 April 4, 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.). Ms. Glivar was warned that failure to comply would result in dismissal of this action without further notice. (Id.).

         In the April 4, 2019 Order, Ms. Glivar was further directed to show cause, in writing, within 30 days, why her claims are not barred for failure to name a proper respondent and by the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), because she appears 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.).

         Ms. Glivar has now failed to cure the filing deficiencies, or to show cause, as directed in the April 4 Order.

         II. Legal Standards

         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.

         III. Analysis

         Ms. Glivar has failed to cure the filing deficiencies, as directed in the April 4 Order and has otherwise failed to communicate with the Court since she initiated this action. In addition, she has not named a proper respondent. The law is well-established that the only proper respondent to a habeas corpus action is the applicant's custodian. See 28 U.S.C. § 2242; Rules 2(a), Rules Governing Section 2254 Cases in the United States District Courts; Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995). Ms. Glivar is being held at the Weld County Detention Facility. Therefore, the proper respondent to this habeas action is the custodian at that facility.[3]

         Finally, 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). Ms. Gliver has failed to respond to the order directing her to show cause why this action is not barred by the doctrine of Younger abstention.

         I recommend that this action be dismissed without prejudice for Ms. Glivar's failure to comply with the April 3 Order Directing Petitioner to Cure Deficiencies and to name a proper Respondent. In the alternative, I recommend that this action be dismissed without prejudice for lack of subject matter jurisdiction pursuant to the doctrine of Younger abstention.

         IV. ...


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