Opinion
Civil Action No. 08-cv-00883-BNB.
August 1, 2008
ORDER
Applicant, Casey Bernard Rodriguez, is in the custody of the United States Bureau of Prisons and currently is incarcerated at ADX Florence. Originally, in the instant action, Mr. Rodriguez filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. On July 30, 2008, Mr. Rodriguez filed a "Motion of Notice of Abuse and Retaliation for Filing Instant Habeas Application and Request to Preserve Evidence of Said Actions to Applicant." In the Motion, Mr. Rodriguez alleges retaliation for filing the instant action. Mr. Rodriguez further asserts that as part of the retaliation he was subjected to excessive force on July 17, 2008, when he refused to follow an order given by prison staff. Mr. Rodriguez alleges fear of further retaliation and seeks a transfer from the facility where he is housed and medical treatment for the multiple injuries he has incurred.
The Court must construe the Motion liberally because Mr. Rodriguez is a pro se litigant. 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 should not act as a pro se litigant's advocate. See Hall, 935 F.2d at 1110.
The claims raised by Mr. Rodriguez in the Motion address the conditions of his confinement and not the execution of his sentence. Therefore, the claims more properly are raised in a prisoner complaint filed pursuant to 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). Because Mr. Rodriguez raises issues that are of concern to the Court and requests relief that only is available in a prisoner complaint, and not in a 28 U.S.C. § 2241 action, the Court will direct the Clerk of the Court to open a new file and process the action pursuant to Rule 8.2(C)(4) of the Local Rules of Practice of the United States District Court for the District of Colorado.
To the extent that Mr. Rodriguez refers to the two Motions he submitted to the Court on July 30, 2008, as "Ex Parte" and states, in his Declaration, (Doc. No. 15), that he handed his sealed ex parte Motions to his unit team for mailing, the Court finds that Mr. Rodriguez is requesting that the Court seal both Motions. The Court will deny the request for the following reasons.
The public's right of access to judicial records, while not absolute, is presumed paramount to a party's interest in sealing the record. See, generally, Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-99 (1978). Plaintiff has failed to articulate specific facts upon which to tip the scales in favor of sealing the July 30, 2008, Motions in this case. Speculation or conjecture as to what may happen if the Motions are not sealed is not enough to overcome the presumption of public access. Cf. United States v. Hickey, 767 F.2d 705, 709 (10th Cir. 1985). Accordingly, it is
ORDERED that Mr. Rodriguez's Motion of Notice of Abuse and Retaliation is construed as a prisoner complaint pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). It is
FURTHER ORDERED that the Clerk of the Court shall open a new prisoner complaint action and place a copy of Mr. Rodriguez's Motion of Notice of Abuse and Retaliation, (Doc. No. 17), in the new prisoner complaint action. It is
FURTHER ORDERED that the Clerk of the Court shall process the prisoner complaint pursuant to Rule 8.2(C)(4) of Local Rules of Practice of the United States District Court for the District of Colorado. It is
FURTHER ORDERED that Mr. Rodriguez's Motion for Clarification, (Doc. No. 16), is construed as a Supplement to his July 16, 2008, Objection. It is
FURTHER ORDERED that Mr. Rodriguez's request to seal the July 30, 2008, Motions is DENIED.