Opinion
Civil Action No. 12-cv-02000-BNB
08-21-2012
STEVE APODACA, Petitioner, v. WARDEN TRAVIS TRANI, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER OVERRULING OBJECTION
This matter at issue is the "Motion Objecting to This Court's Order Denying Petitioner's Petition for Writ of Habeas Corpus 'as Improper' and for Converting Said Petition 'Into a 42 U.S.C. § 1983,' " ECF No. 6, that Mr. Apodaca, a State of Colorado prisoner, filed with the Court on August 16, 2012. Mr. Apodaca objects to Magistrate Judge Boyd N. Boland's August 1, 2012 Order. Specifically, Mr. Apodaca challenges the characterization of this action as a prisoner complaint filed pursuant to 42 U.S.C. § 1983 rather than a habeas corpus action.
The Court will construe the Motion liberally as an Objection filed pursuant to 28 U.S.C. § 636(b)(1)(A). Under § 636(b)(1)(A), a judge may reconsider any pretrial matter designated to a magistrate judge to hear and determine where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.
Upon review of Mr. Apodaca's Application, I find no basis for his arguments. Magistrate Judge Boland's August 1, 2012 Order neither is clearly erroneous nor contrary to law. The courts' findings in Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011), and Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), provide sufficient basis for this Court to construe this action as more properly filed pursuant to § 1983. Mr. Apodaca is challenging his placement in administrative segregation and not the fact or the duration of his sentence. The Court also notes that Mr. Apodaca may not attempt to circumvent the $350.00 filing fee by filing a habeas action. The Objection, therefore, will be overruled. Mr. Apodaca is instructed to comply with the August 1, 2012 Order or the action will be dismissed for failure to prosecute. Accordingly, it is
ORDERED that Mr. Apodaca's Objection, ECF No. 6, filed on August 16, 2012, is construed liberally as an Objection filed pursuant to 28 U.S.C. § 636(b)(1)(A) and is overruled. It is
FURTHER ORDERED that Mr. Apodaca has twenty-one days from the date of this Order to comply with the August 1, 2012 Order. It is
FURTHER ORDERED that if Mr. Apodaca fails to comply with the August 1, 2012 Order, as directed, the action will be dismissed without further notice.
DATED at Denver, Colorado, this 21st day of August, 2012.
BY THE COURT:
______________________________
LEWIS T. BABCOCK, Senior Judge
United States District Court