Opinion
Civil Action No. 11-cv-02223-BNB
09-06-2011
DONALD ADAM PENROD, Petitioner, v. DON QUICK, Adams County District Attorney, SUSAN JONES, Warden CSP, MS. TOFOYA, Associate Warden SCCF, and TOM CLEMENTS, Executive Director Colorado Department of Corrections, Respondents.
(The above civil action number must appear on all future papers sent to the court in this action. Failure to include this number may result in a delay in the consideration of your claims.)
ORDER DIRECTING PETITIONER TO CURE DEFICIENCIES
Petitioner has submitted a document titled "F.R. Civ. P. Rule 60(b) Independent Action to Vacate a Judgment or Restrain Enforcement of a Judgment That is a 'Fraud Upon the Court.'" As part of the court's review pursuant to D.C.COLO.LCivR 8.2, the court has determined that the submitted document is deficient as described in this order. Petitioner will be directed to cure the following if he wishes to pursue his claims. The court has determined that Petitioner's claims properly are asserted pursuant to 28 U.S.C. § 2254 because he appears to be challenging the validity of his conviction. Applicant has failed either to pay the $5.00 filing fee or to file a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action. Any papers which the Petitioner files in response to this order must include the civil action number on this order.
28 U.S.C. § 1915 Motion and Affidavit:
(1) X is not submitted
(2) ___ is missing affidavit
(3) ___ is missing certified copy of prisoner's trust fund statement for the 6-month period immediately preceding this filing
(4) X is missing certificate showing current balance in prison account
(5) ___ is missing required financial information
(6) ___ is missing an original signature by the prisoner
(7) ___ is not on proper form (must use the court's current form)
(8) ___ names in caption do not match names in caption of complaint, petition or habeas application
(9) ___ An original and a copy have not been received by the court. Only an original has been received.
(10) X other: Motion is necessary only if $5.00 filing fee is not paid in advance.
Complaint, Petition or Application:
(11) X is not submittedAccordingly, it is
(12) ___ is not on proper form (must use the court's current form)
(13) ___ is missing an original signature by the prisoner
(14) ___ is missing page nos._
(15) ___ uses et al. instead of listing all parties in caption
(16) ___ An original and a copy have not been received by the court. Only an original has been received.
(17) ___ Sufficient copies to serve each defendant/respondent have not been received by the court.
(18) ___ names in caption do not match names in text
(19) X other: The only proper Respondent in a habeas corpus action is Applicant's current warden, superintendent, jailer or other custodian.
ORDERED that the Petitioner cure the deficiencies designated above within thirty (30) days from the date of this order. Any papers which the Petitioner files in response to this order must include the civil action number on this order. It is
FURTHER ORDERED that the Petitioner shall obtain the court-approved Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action and an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 forms (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 the Petitioner fails to cure the designated deficiencies within thirty (30) days from the date of this order, the action will be dismissed without further notice. The dismissal shall be without prejudice.
DATED September 6, 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-02223-BNB Donald Adam Penrod
Prisoner No. 76672
Colorado State Penitentiary
PO Box 777
Canon City, CO 81215- 0777
I hereby certify that I have mailed a copy of the ORDER to the above-named individuals on September 6, 2011.
GREGORY C. LANGHAM, CLERK
By: __________
Deputy Clerk