Opinion
Civil Action No. 19-cv-00832-LTB-GPG
05-02-2019
MEIGRE MARIE GLIVAR, Petitioner, v. WELD COUNTY, THOMAS QUAMMEN, Z. POULSEN, COLORADO STATE PUBLIC DEFENDER'S OFFICE, STATE OF COLORADO, WARNER HOUSE, AMANDA SMITH, COLORADO INSTITUTE OF MENTAL HEALTH AT PUEBLO, and DAVE EISNER, Respondent(s).
RECOMMENDATION OF DISMISSAL
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. 7). 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, was detained in the Weld County Jail when she initiated this action on March 20, 2019. Ms. Glivar filed, pro se an "Emergency Motion to File Lawsuit" (ECF No. 1), in which she claims that her constitutional rights are being violated in a pending criminal proceeding in the Weld County District Court. For relief, she asks that she be released from detention. 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 March 21, 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.). The clerk of the court was directed to send Ms. Glivar copies of the court-approved forms. (Id.). Ms. Glivar was warned that failure to comply would result in dismissal of this action without further notice. (Id.).
In the March 21 Order, Ms. Glivar was further directed to show cause, in writing, within 30 days, why her claims were not barred by the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), because she appeared 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.).
On March 27, 2019, Ms. Glivar filed a Letter in response to the March 21 Order in which she states that "a complete investigation will determine I am the victim of several crimes committed by the defendants." (ECF No. 4 at 1). She further states that her constitutional rights have been violated by Weld County; that the criminal charges pending against her should have been dropped; that information as to her competency was fabricated; and that she has been "incarcerated without cause" since August 31, 2018. (Id. at 2). Ms. Glivar also asserts that the Weld County jail is unable to provide her with copies of the court-approved forms.
II. Legal Standards
A. Pro se Litigant
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.
B. Younger abstention
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).
III. Analysis
Ms. Glivar has failed to cure the filing deficiencies, as directed in the March 21 Order. Although she asserts that the Weld County Jail is unable to provide her with the necessary forms, she fails to address the fact that the clerk of the court mailed copies of the court-approved forms to her, along with a copy of the March 21 Order. The docket entry on March 21 indicates that the forms were mailed as ordered. (ECF No. 3).
Further, in the March 21 Order to Show Cause, the Court directed Ms. Glivar to allege specific facts to show that the pending state court proceedings do not offer her an adequate opportunity to litigate any federal statutory issues, see Middlesex Cnty. Ethics Comm., 457 U.S. at 431, and that extraordinary circumstances exist to justify this Court's intervention. (ECF No. 3 at 2-3). The statements made by Ms. Glivar in the March 27 Letter fail to show that the principles of Younger abstention do not apply to this action.
I recommend that the Complaint be dismissed without prejudice for Ms. Glivar's failure to comply with the March 21 Order Directing Petitioner to Cure Deficiencies. 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 March 21, 2019 Order Directing Petitioner to Cure Filing Deficiencies, and, alternatively, for lack of jurisdiction pursuant to the doctrine of Younger abstention.
DATED at Grand Junction, Colorado, this 2nd day of May, 2019.
BY THE COURT:
/s/_________
Gordon P. Gallagher
United States Magistrate Judge