Fleming v. Bigelow, No. 2:2011cv00310 - Document 6 (D. Utah 2011)

Court Description: ORDER TO AMEND DEFICIENT PETITION AND MEMORANDUM DECISION that Petitioner shall have THIRTY DAYS from the date of this order to cure the deficiencies noted in this Order ; that the Clerk's Office shall mail Petitioner a copy of thePro Se Litigant Guide ; that if Petitioner fails to timely cure the noted deficiencies in accordance with the instructions herein this action will be dismissed without further notice. Signed by Judge Bruce S. Jenkins on 06/03/2011. (asp)

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IN THE UNITED STATES DISTRICT COURTOiI FOR THE DISTRICT OF UTAH JUN - 3 P ~; 02 BY:___._ __ DEPUTY CLER1\ CARL STANLEY FLEMING, ORDER TO AMEND DEFICIENT PETITION & MEMORANDUM DECISION Petitioner, v. Case No. 2:11-CV-310 BSJ ALFRED BIGELOW, District Judge Bruce Jenkins Respondent. Petitioner, Carl Stanley Fleming, an inmate at the Utah State Prison, filed this pro se habeas corpus petition. U.S.C.S. § 2254 (2011). See 28 In reviewing the petition to determine whether to order an answer, the Court has determined that Petitioner's petition is deficient as described in this Order. See id. Petitioner must cure these deficiencies if he wishes to pursue his claims. Deficiencies in Petition: Petition: (a) is submitted with an inconsistent "Memorandum in Support of Petitioner's § 2254 Writ of Habeas Corpus," in which Petitioner alleges different claims and underlying allegations than he does in his Petition. (b) should be submitted after consultation with prison contract attorneys who will be able to help Petitioner incorporate all his claims into the same pleading, which should be an amended petition, complete in itself. Instructions to Petitioner Under Rule 8 of the Federal Rules of Civil Procedure an initial pleading is required to contain n{l) a short and plain statement of the grounds upon which the court1s 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." 8{a). Fed. R. Civ. P. 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. Network, Inc. v. ESPN, Inc., II TV Commc'ns 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff'd, 964 F.2d 1022 (10th Cir. 1992). Pro se 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. 1106, 1009 (lOth Cir. 1991). II Hall v. Bellmon, 935 F.2d Moreover, "it is not the proper function of the Court to assume the role of advocate for a pro se litigant." Id. at 1110. additional facts, Thus, the Court cannot "supply [or] construct a legal theory for [petitioner] 2 that assumes facts that have not been pleaded." Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989). Petitioner should consider the following 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 his support memorandum. 1998) See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. (amendment supercedes original). must clearly state the respondent. his custodian Second, the petitioner and name that person as 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; any claims about the execution of Petitioner's sentence should be brought under 28 U.S.C.S. § 2241. Finally, ?etitioner should seek help from the prison's contract attorneys with preparing initial pleadings. ORDER Based on the foregoing, IT IS HEREBY ORDERED that: (1) Petitioner shall have THIRTY DAYS from the date of this order to cure the deficiencies noted above; (2) the Clerk's Office shall mail Petitioner a copy of the Pro Se Litigant Guide; 3 (3) if Petitioner fails to timely cure the above noted deficiencies in accordance with the instructions herein this action will be dismissed without further notice. DATED this:? day of June, 2011. BY THE COURT: istrict Judge 4

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