Opinion
Civil Action No. 12-mc-00042-BNB
02-29-2012
BILLY VON HALLCY, Plaintiff, v. TOM CLEMANS, CAPTAIN BROOKS, SERGEANT STEERMEN, and SERGEANT BARSHS, Defendants.
ORDER TO COMMENCE REGULAR CIVIL ACTION
AND DIRECTING PLAINTIFF TO CURE DEFICIENCIES
Plaintiff is a prisoner in the custody of the Colorado Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Plaintiff initiated this action by filing pro se a document titled "Affidavit & Incident Report of Retaliatory Staff Misconduct . . ." and a letter to the court stating that the "Affidavit & Incident Report of Retaliatory Staff Misconduct . . ." should be opened as a miscellaneous action. As part of the court's review pursuant to D.C.COLO.LCivR 8.2, the court has determined that the submitted documents are deficient.
Plaintiff complains in the "Affidavit & Incident Report of Retaliatory Staff Misconduct . . ." that his rights under the United States Constitution have been violated by prison officials. However, Plaintiff may not pursue his constitutional claims in a miscellaneous action. Instead, if he wishes to pursue his constitutional claims in this court, he must pursue those claims in a regular civil action. Therefore, the clerk of the court will be directed to close this miscellaneous action and commence a regular civil action in this matter. Plaintiff will be directed to cure the following if he wishes to pursue his claims.
28 U.S.C. § 1915 Motion and Affidavit:
(1) ×× is not submitted (2) ___ is missing affidavit (3) xx is missing certified copy of prisoner's trust fund statement for the 6-month period immediately preceding this filing (4) ____ 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) ×× other: motion is necessary only if entire $350.00 filing fee is not paid in advance.
Complaint, Petition or Application:
(10) ×× is not submitted (11) ____ is not on proper form (must use the court's current form) (12) ____is missing an original signature by the prisoner (13) ____ is missing page nos. ___ (14) ____ uses et al. instead of listing all parties in caption (15) ___ names in caption do not match names in text (16) ____ addresses must be provided for all defendants/respondents in "Section A. Parties" of complaint, petition or habeas application (17) ___ other: ___ Accordingly, it is
ORDERED that the clerk of the court open a regular civil action and file the "Affidavit & Incident Report of Retaliatory Staff Misconduct . . ." (ECF No. 1) and letter to the court (ECF No. 2) in the newly opened action along with a copy of this order. It is
FURTHER ORDERED that this miscellaneous action be closed. It is
FURTHER ORDERED that Plaintiff cure the deficiencies designated above within thirty (30) days from the date of this order. It is
FURTHER ORDERED that Plaintiff shall obtain the court-approved Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and Prisoner Complaint forms (with the assistance of his case manager or the facility's legal assistant), along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Plaintiff 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 February 29, 2012, at Denver, Colorado.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge