Opinion
Civil Action No. 11-cv-01800-BNB
08-02-2011
SENO CARTER, #17198-045, Applicant, v. RENE GARCIA, Warden, Respondent.
ORDER CONSTRUING 28 U.S.C. § 2241 ACTION AS A
PRISONER COMPLAINT AND DIRECTING
APPLICANT TO FILE A PRISONER COMPLAINT
Applicant, Seno Carter, is in the custody of the United States Bureau of Prisons (BOP) and currently is incarcerated at the Pollock Medium Federal Correctional Institution in Pollock, Louisiana. Mr. Carter, acting pro se, filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. He also submitted a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action.
The Court has reviewed the Application filed in this action and finds that Mr. Carter is asserting civil rights claims rather than habeas corpus claims. Mr. Carter complains that his "central file" contains an inaccurate escape charge, which affects his custody level and that in retaliation for grieving the incorrect information he was placed in a medium high security facility. He, therefore, is not challenging the execution of his sentence but the conditions of his confinement.
"The essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and ... the traditional function of the writ is to secure release from illegal custody." See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Generally, a federal prisoner's challenge to his conditions of confinement is cognizable under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See, e.g., Richards v. Bellmon, 941 F.2d 1015, 1018 (10th Cir. 1991). Accordingly, it is
ORDERED that Mr. Carter cure the deficiencies designated above by filing a Prisoner Complaint and either by paying the $350.00 filing fee or by filing a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 within thirty days from the date of this Order. It is
FURTHER ORDERED that Mr. Carter shall obtain the court-approved Prisoner Complaint form (with the assistance of his case manager or the facility's legal assistant), along with the applicable instructions, at www.cod.uscourts.aov. It is
FURTHER ORDERED that if within the time allowed Mr. Carter fails to cure the designated deficiencies the action will be dismissed without prejudice and without further notice.
DATED August 2, 2011, at Denver, Colorado.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 11-cv-01800-BNB Seno Carter
Reg. No. 17198-045
FCI Pollock
PO Box 4050
Pollock, LA 71467
I hereby certify that I have mailed a copy of the ORDER to the above-named individuals on August 2, 2011.
GREGORY C. LANGHAM, CLERK
By: _____________
Deputy Clerk