United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
P. Gallagher, United States Magistrate Judge
matter comes before the Court on the “Emergency Motion
to File Lawsuit” (ECF No. 1). Plaintiff proceeds pro
se. The matter has been referred to this Magistrate
Judge for recommendation (ECF No. 5). 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.
Factual and Procedural Background
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).
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.).
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
Glivar has now failed to cure the filing deficiencies, or to
show cause, as directed in the April 4 Order.
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.
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
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.
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