IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02354-BNB

VICTOR TEON LINDSEY II,

Applicant, 

v.

ATTORNEY CESAR PIERCE VARELA, and 

WARDEN CHARLES R. DANEIL, USP Prison Bureau, Florence Federal Prison, a

corporate entity and holder of the key,

Respondents.

ORDER DIRECTING APPLICANT TO FILE SECOND AMENDED APPLICATION

Applicant, Victor Teon Lindsey II, is a prisoner in the custody of the United States

Bureau of Prisons who currently is incarcerated at the United States Penitentiary in

Florence, Colorado. Mr. Lindsey, acting pro se, initiated this action by filing a document

titled “Petition for Emergency Writ of Habeas Corpus.” He paid the $5.00 filing fee. On

September 13, 2011, the Court directed him to file an amended application on the

Court-approved form for an Application for a Writ of Habeas Corpus Pursuant to 28

U.S.C. § 2241. On November 3, 2011, Mr. Lindsey filed the amended habeas corpus

application. 

The Court must construe Mr. Lindsey’s filings liberally because he 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). The Court, however, should not act as a pro se

litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, Mr.

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Lindsey will be ordered to file a second amended application. 

The Court has reviewed the amended application and finds that it is deficient. 

Mr. Lindsey names an improper Respondent, i.e., Attorney Cesar Pierce Varela, in the

caption of the amended application. The law is well-established that the only proper

respondent to a habeas corpus action is the applicant’s custodian. See 28 U.S.C. §

2242; Rules 2(a) and 1(b), Rules Governing Section 2254 Cases in the United States

District Courts; Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995). Therefore, the

only Respondent who should be listed in the second amended application that Mr.

Lindsey will be directed to file is the warden of the facility in which Applicant is housed. 

In addition, Mr. Lindsey fails to assert claims that comply with Rule 8 of the

Federal Rules of Civil Procedure. The Federal Rules of Civil Procedure apply to

applications for habeas corpus relief. See Fed. R. Civ. P. 81(a)(4); Browder v.

Director, Dep’t of Corrections, 434 U.S. 257, 269 (1978); Ewing v. Rodgers, 826

F.2d 967, 969-70 (10th Cir. 1987). Pursuant to Fed. R. Civ. P. 8(a), a pleading “shall

contain (1) a short and plain statement of the grounds for the court’s jurisdiction, . . . (2)

a short and plain statement of the claim showing that the pleader is entitled to relief, and

(3) a demand for the relief sought.” Fed. R. Civ. P. 8(d)(1) provides that “[e]ach

allegation must be simple, concise, and direct.” Taken together, Rules 8(a) and (d)(1)

underscore the emphasis placed on clarity and brevity by the federal pleading rules. 

Prolix, vague, or unintelligible pleadings violate the requirements of Rule 8. 

Mr. Lindsey appears to be attacking the execution of his sentence. However, the

amended application fails to state any claims but rather refers to attachments that are

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verbose and confusing. The Court is not responsible for reviewing any attached

documents submitted by Mr. Lindsey to determine what claims and specific supporting

facts he intends to raise in this action. Pursuant to Rules 2(c)(1) and 2(c)(2) of the

Rules Governing Section 2254 Cases in the United States District Courts, Mr. Lindsey

must “specify all [available] grounds for relief” and he must “state the facts supporting

each ground.” Rule 1(b) of the Section 2254 Rules applies the rules to § 2241 habeas

corpus actions. These habeas corpus rules are more demanding than the rules

applicable to ordinary civil actions, which require only notice pleading. See Mayle v.

Felix, 545 U.S. 644, 655 (2005). 

Although Mr. Lindsey’s application fails to comply with Fed. R. Civ. P. 8, Mr.

Lindsey will be given an opportunity to file a second amended application that alleges

clearly on the Court-approved form both the claims he seeks to raise and the specific

facts to support each asserted claim. 

Accordingly, it is

ORDERED that Applicant, Victor Teon Lindsey, II, file, within thirty days from

the date of this order, a Second Amended Application for a Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2241 that names the proper Respondent and complies with the

pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and with this

order. It is

FURTHER ORDERED that Mr. Lindsey shall obtain the Court-approved form for

filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (with the

assistance of his case manager or the facility’s legal assistant), along with the

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applicable instructions, at www.cod.uscourts.gov. It is

FURTHER ORDERED that if Mr. Lindsey fails within the time allowed to file a

second amended application as directed, the amended application will be denied and

the action will be dismissed without prejudice and without further notice. 

DATED November 9, 2011, at Denver, Colorado.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

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