United States District Court, D. Utah
MEMORANDUM DECISION & ORDER GRANTING MOTION TO
CLARK WADDOUPS UNITED STATES DISTRICT COURT
February 13, 2018, this Court dismissed Petitioner's
action for failure to prosecute; Petitioner had not cured his
petition as ordered by the Court on September 26, 2017.
Explaining that he had not received the Court's order,
Petitioner now moves to reopen the case. Good cause
appearing, the Court grants Petitioner's motion.
having reviewed the Petition, the Court concludes that it
should be amended to cure the below deficiencies if
Petitioner wishes to further pursue his claims.
(a) lists a respondent other than his custodian.
(b) possibly attacks a state sentence already served and does
not clarify whether past state convictions form any basis for
his current incarceration in federal prison.
(c) perhaps contains amended claims regarding conditions of
confinement suggested in Petitioner's motion to re-open
this action, which claims are not appropriate in this
(d) has claims possibly based on the illegality of
Petitioner's current confinement; however, the petition
was apparently not submitted using the legal help Petitioner
is entitled to by his institution under the Constitution
(i.e., contract attorneys). See Lewis v. Casey, 518
U.S. 343, 356 (1996) (requiring prisoners be given
"'adequate law libraries or
adequate assistance from persons trained in the
law' . . . to ensure that inmates . . . have a reasonably
adequate opportunity to file nonfrivolous legal claims
challenging their convictions or conditions of
confinement") (quoting Bounds v. Smith, 430
U.S. 817, 828 (1977) (emphasis added)).
INSTRUCTIONS TO PETITIONER
Rule 8 of the Federal Rules of Civil Procedure an initial
pleading is required to contain "(1) a short and plain
statement of the grounds upon which the court's
jurisdiction depends, . . . (2) a short and plain statement
of the claim showing that the pleader is entitled to relief,
and (3) a demand for judgment for the relief the pleader
seeks." Fed.R.Civ.P. 8(a). The requirements of Rule 8(a)
are intended to guarantee "that [respondents] enjoy fair
notice of what the claims against them are and the grounds
upon which they rest." TV Commc'ns Network, Inc.
v. ESPN, Inc., 767 F.Supp. 1062, 1069 (D. Colo. 1991),
aff'd, 964 F.2d 1022 (10th Cir. 1992).
litigants are not excused from compliance with the minimal
pleading requirements of Rule 8. "This is so because a
pro se [litigant] requires no special legal training to
recount the facts surrounding his alleged injury, and he must
provide such facts if the court is to determine whether he
makes out a claim on which relief can be granted."
Hall v. Bellmon, 935 F.2d 1106, 1009 (10th Cir.
1991). Moreover, "it is not the proper function of the
Court to assume the role of advocate for a pro se
litigant." Id. at 1110. Thus, the Court cannot
"supply additional facts, [or] construct a legal theory
for [petitioner] that assumes facts that have not been
pleaded." Dunn v. White, 880 F.2d 1188, 1197
(10th Cir. 1989).
should consider the following general points before refiling
his petition. First, the revised petition must stand entirely
on its own and shall not refer to, or incorporate by
reference, any portion of the original petition or any other
documents previously filed by Petitioner. See Murray v.
Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (amendment
supersedes original). Second, the petitioner must clearly
state whom his custodian is and name that person (a warden or
ultimate supervisor of an imprisonment facility) as the
respondent. See R. 2, Rs. Governing § 2254
Cases in the U.S. Dist. Courts. Third, Petitioner may
generally not bring civil-rights claims as to the conditions
of his confinement in a habeas corpus petition. Fourth, any
claims about Petitioner's underlying conviction and/or
sentencing should be brought under § 2254; any claims
about the execution of Petitioner's sentence should be
brought under § 2241. 28 U.S.C.S. §§ 2254,
2241 (2018). Fifth, Petitioner should seek help to prepare
initial pleadings from legal resources (e.g., contract
attorneys) available where he is held.