Opinion
Civil Action No. 05-cv-01478-OES.
September 6, 2005
ORDER TO DISMISS IN PART AND TO DRAW CASE TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE
Plaintiff James Saint-Veltri is incarcerated at the Denver County Jail. Mr. Saint-Veltri initiated this action by filing pro se a Prisoner Complaint pursuant to 42 U.S.C. § 1983. On August 12, 2005, Mr. Saint-Veltri filed an amended Prisoner Complaint pursuant to § 1983. As relief he seeks money damages, proper medical treatment, and a new trial in his criminal case in the Denver District Court.
The Court must construe the amended complaint liberally because Mr. Saint-Veltri is representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the amended complaint reasonably can be read "to state a valid claim on which the plaintiff could prevail, [the Court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall, 935 F.2d at 1110. However, the Court should not be the pro se litigant's advocate. See id.
Three of the four claims Mr. Saint-Veltri asserts in the amended complaint relate to conditions at the Denver County Jail. Mr. Saint-Veltri first claims that he was assaulted by Defendant J. Vigil on April 12, 2005. In his second claim he alleges that he has been denied adequate medical treatment for hypoglycemia by Defendant Dr. Peter Crum. Mr. Saint-Veltri alleges in his third claim for relief, which apparently is asserted against Defendant D/S Mr. Lafferty, that he was denied access to the jail law library in order to prepare for trial in his criminal case.
Mr. Saint-Veltri's fourth claim for relief does not relate to jail conditions and is asserted against Defendant Honorable Judge Sheila Rappaport. Mr. Saint-Veltri alleges that Judge Rappaport is the district judge presiding over his criminal case in the Denver District Court. Mr. Saint-Veltri contends that he went to trial in his criminal case in July 2005. He apparently was convicted because the relief he seeks in connection with the fourth claim is a new trial.
The precise nature of Mr. Saint-Veltri's fourth claim against Judge Rappaport is not entirely clear. However, it is clear that he may not seek a new trial in this action pursuant to 42 U.S.C. § 1983 because the only federal remedy available to Mr. Saint-Veltri to challenge the validity of his conviction is a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 504 (1973). The Court will not consider the merits of any habeas corpus claims in this action because it is apparent that Mr. Saint-Veltri has not exhausted state remedies for any claim arising out of his July 2005 state court criminal conviction. See 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Therefore, the fourth claim for relief will be dismissed and Judge Rappaport will be dismissed as a party to this action.
The Court will not address at this time the merits of Mr. Saint-Veltri's claims challenging the conditions of his confinement at the Denver County Jail. Instead, this action will be drawn to a district judge and a magistrate judge. Accordingly, it is
ORDERED that Plaintiff's fourth claim for relief against Defendant Honorable Judge Sheila Rappaport is dismissed. It is
FURTHER ORDERED that Defendant Honorable Judge Sheila Rappaport is dismissed as a party to this action. It is
FURTHER ORDERED that this case shall be drawn to a district judge and to a magistrate judge.