United States District Court, D. Utah
ROY D. TAYLOR Petitioner,
STATE OF UTAH, Respondent.
MEMORANDUM DECISION & ORDER TO AMEND DEFICIENT
Roy D. Taylor, an inmate at Utah State Prison, filed an
amended pro se habeas-corpus petition. See
28 U.S.C.S. § 2254 (2018). Reviewing the Amended
Petition, (Doc No. 27), the Court concludes that it must be
amended to cure the below deficiencies if Petitioner wishes
to further pursue his claims.
IN AMENDED PETITION
(a) is not on the form required by and provided to Petitioner
by this Court.
(c) has claims appearing to be 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--e.g., by 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 or first amended
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, 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 28 U.S.C.S. § 2254 (2017); any
claims about the execution of Petitioner's sentence
should be brought under id. § 2241. Fifth,
Petitioner should seek help to prepare initial pleadings from
legal resources (e.g., contract attorneys) available where he
Court evaluates Petitioner's second and repetitive motion
for preliminary injunctive relief. Again, Petitioner appears
to merely be trying to expedite the relief he seeks in his
petition. This type of injunction is disfavored by the law.
See SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096,
1098-99 (10th Cir. 1991).
Petitioner has not specified adequate facts showing each of
the four elements necessary to obtain a preliminary
"(1) a substantial likelihood of prevailing on the
merits; (2) irreparable harm in the absence of the
injunction; (3) proof that the threatened harm outweighs any
damage the injunction may cause to the party opposing it; and
(4) that the injunction, if ...