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Buhl v. Berkebile

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Sep 5, 2014
Civil Action No. 14-cv-01476-BNB (D. Colo. Sep. 5, 2014)

Opinion

Civil Action No. 14-cv-01476-BNB

09-05-2014

LEROY BUHL, Applicant, v. D. BERKEBILE, Warden, Respondent.


ORDER OF DISMISSAL

Applicant, Leroy Buhl, is a prisoner in the custody of the Federal Bureau of Prisons at the United States Penitentiary, Administrative Maximum, in Florence, Colorado. Mr. Buhl initiated this action by filing pro se an "Emergency Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241" (ECF No. 1) challenging his placement in the special housing unit following expungement of a disciplinary incident report and a "Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action" (ECF No. 3). On May 27, 2014, Magistrate Judge Boyd N. Boland entered an order directing Mr. Buhl to cure certain deficiencies if he wished to pursue his claims. In particular, Magistrate Judge Boland directed Mr. Buhl to file on the court-approved form a Prisoner Complaint because he cannot raise conditions of confinement claims in a habeas corpus action. Magistrate Judge Boland also directed Mr. Buhl to file on the correct form a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 along with an authorization to calculate and disburse filing fee payments. Mr. Buhl was warned that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days.

On June 24, 2014, Mr. Buhl filed a "Motion to Compel the Respondent to Cease/Desist Delays in Delivering Legal Mails" (ECF No. 7) in which he alleged that he did not receive a copy of Magistrate Judge Boland's May 27 order until June 19, 2014. On June 25, 2014, Mr. Buhl filed in the United States Court of Appeals for the Tenth Circuit a petition for writ of mandamus (ECF No. 8) seeking an order directing this Court to order Respondent to transfer Mr. Buhl to another prison. On July 1, 2014, Mr. Buhl filed a motion for extension of time (ECF No. 10) requesting a fifteen-day extension of time to comply with the order directing him to cure the deficiencies in this action. Also on July 1, 2014, Magistrate Judge Boland entered a minute order (ECF No. 11) granting Mr. Buhl an extension of time until July 16, 2014, to cure the deficiencies. On July 2, 2014, Mr. Buhl filed a "Motion for Recusal Under 28 U.S.C. § 144, § 455" (ECF No. 12) asking Magistrate Judge Boland to recuse himself from further service in this case. On July 9, 2014, Mr. Buhl filed a second "Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action" (ECF No. 14) that still is not on the proper form. On August 28, 2014, the Tenth Circuit entered an order (ECF No. 15) denying Mr. Buhl's petition for writ of mandamus.

Mr. Buhl has failed to cure the deficiencies in this action within the time allowed. He has not filed on the proper forms either a Prisoner Complaint or a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and he has failed to submit an authorization to calculate and disburse filing fee payments. Therefore, the action will be dismissed without prejudice for failure to cure the deficiencies.

Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he also must pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24. Accordingly, it is

ORDERED that the habeas corpus application (ECF No. 1) is denied and the action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. Buhl failed to cure the deficiencies as directed. It is

FURTHER ORDERED that the "Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action" (ECF No. 3), the "Motion to Compel the Respondent to Cease/Desist Delays in Delivering Legal Mails" (ECF No. 7), the "Motion for Recusal Under 28 U.S.C. § 144, § 455" (ECF No. 12), and the second "Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action" (ECF No. 14) are DENIED as moot. It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.

DATED at Denver, Colorado, this 5th day of September, 2014.

BY THE COURT:

s/Lewis T. Babcock

LEWIS T. BABCOCK, Senior Judge

United States District Court


Summaries of

Buhl v. Berkebile

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Sep 5, 2014
Civil Action No. 14-cv-01476-BNB (D. Colo. Sep. 5, 2014)
Case details for

Buhl v. Berkebile

Case Details

Full title:LEROY BUHL, Applicant, v. D. BERKEBILE, Warden, Respondent.

Court:UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Date published: Sep 5, 2014

Citations

Civil Action No. 14-cv-01476-BNB (D. Colo. Sep. 5, 2014)