Opinion
Civil Action No. 19-cv-00986-LTB-GPG
05-15-2019
MEIGRE MARIE GLIVAR, Petitioner, v. STATE OF COLORADO, US COURT 21, and GORDON P. GALLAGHER, Respondent(s).
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on the "Emergency Motion to File Lawsuit" (ECF No. 1). Plaintiff proceeds pro se. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 5). The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Complaint be dismissed without prejudice.
"(ECF No. ___)" is an example of the convention I use to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). I use this convention throughout this Recommendation.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
I. Factual and Procedural Background
Petitioner, Maria Marie Glivar, initiated this action on April 3, 2019 by filing pro se an "Emergency Motion to File Lawsuit" (ECF No. 1). Ms. Glivar claims that she is being detained unlawfully at the Weld County Jail. For relief, she seeks immediate release from custody. The clerk of the court opened a habeas corpus action pursuant to 28 U.S.C. § 2241. See Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007) (detainee may challenge the legality of his or her pre-trial detention under § 2241); see also Yellowbear v. Wyo. Att'y Gen., 525 F.3d 921, 924 (10th Cir. 2008) (same).
On April 4, 2019, the Court reviewed Ms. Glivar's filing pursuant to D.C.COLO.LCiv Rule 8.1(b) and directed her to cure filing deficiencies within 30 days. (ECF No.3). Specifically, she was ordered to submit her claims on the court-approved Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, and to either pay the $5.00 filing fee or submit a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Action. (Id.). Ms. Glivar was warned that failure to comply would result in dismissal of this action without further notice. (Id.).
In the April 4, 2019 Order, Ms. Glivar was further directed to show cause, in writing, within 30 days, why her claims are not barred for failure to name a proper respondent and by the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), because she appears to be asking the Court to intervene or enjoin a pending state criminal proceeding. (Id.). Ms. Glivar was warned that failure to comply would result in dismissal of this action without further notice. (Id.).
Ms. Glivar has now failed to cure the filing deficiencies, or to show cause, as directed in the April 4 Order.
II. Legal Standards
The Court construes Ms. Glivar's filings liberally because she is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court will not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
III. Analysis
Ms. Glivar has failed to cure the filing deficiencies, as directed in the April 4 Order and has otherwise failed to communicate with the Court since she initiated this action. In addition, she has not named a proper respondent. The law is well-established that the only proper respondent to a habeas corpus action is the applicant's custodian. See 28 U.S.C. § 2242; Rules 2(a), Rules Governing Section 2254 Cases in the United States District Courts; Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995). Ms. Glivar is being held at the Weld County Detention Facility. Therefore, the proper respondent to this habeas action is the custodian at that facility.
Ms. Glivar has named the undersigned as a defendant/respondent in this case. Petitioner seeks federal habeas relief in the form of release from custody, but the undersigned has no authority to grant such relief. Therefore, this does not appear to be a situation where the undersigned's "impartiality might reasonably be questioned" for purposes of 28 U.S.C. § 455(a). See United States v. Gigax, 605 F.2d 507, 511 (10th Cir. 1979). --------
Finally, the Court lacks jurisdiction to enjoin or intervene in an ongoing state criminal action absent extraordinary circumstances. See Younger, 401 U.S. 37; Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). The Younger doctrine "requires a federal court to abstain from hearing a case where . . . (1) state judicial proceedings are ongoing; (2) [that] implicate an important state interest; and (3) the state proceedings offer an adequate opportunity to litigate federal constitutional issues." Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1204 (10th Cir. 2003); see also Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). Ms. Gliver has failed to respond to the order directing her to show cause why this action is not barred by the doctrine of Younger abstention.
I recommend that this action be dismissed without prejudice for Ms. Glivar's failure to comply with the April 3 Order Directing Petitioner to Cure Deficiencies and to name a proper Respondent. In the alternative, I recommend that this action be dismissed without prejudice for lack of subject matter jurisdiction pursuant to the doctrine of Younger abstention.
IV. Recommendation
For the reasons set forth herein, this Magistrate Judge respectfully
RECOMMENDS that the "Emergency Motion to File Lawsuit" (ECF No. 1) be denied and this his action be DISMISSED WITHOUT PREJUDICE, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, for Ms. Glivar's failure to comply with the April 4 Order Directing Petitioner to Cure Filing Deficiencies and to name a proper respondent; alternatively, the action should be dismissed for lack of jurisdiction pursuant to the doctrine of Younger abstention.
DATED at Grand Junction, Colorado, this 15th day of May, 2019.
BY THE COURT:
/s/_________
Gordon P. Gallagher
United States Magistrate Judge