*

This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

March 3, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TIMOTHY DOYLE YOUNG,

Petitioner - Appellant, No. 09-1320

No. 09-1337

v. (D. Colorado)

BUREAU OF PRISONS,

Respondent - Appellee.

(D.C. Nos. 09-cv-01275-ZLW

and 09-cv-01456-ZLW)

ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases

are therefore ordered submitted without oral argument.

Appellate Case: 09-1320 Document: 01018377046 Date Filed: 03/03/2010 Page: 1
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Discussion

Petitioner and appellant Timothy Doyle Young, proceeding pro se, appeals

the dismissal of two 28 U.S.C. § 2241 petitions, in both of which he accuses

prison officials of committing numerous errors and causing various deprivations

in their treatment of him, including the revocation of good time credits. The

district court dismissed Mr. Young’s petitions because Mr. Young had failed to

submit a certified copy of his prison account along with his application to proceed

in forma pauperis. We affirm the district court in both of these appeals.

Mr. Young is in the custody of the United States Bureau of Prisons

(“BOP”) and is currently incarcerated at USP Florence. He commenced both of

these actions by filing pro se § 2241 applications. A magistrate judge instructed

Mr. Young to cure certain deficiencies in each action if he wished to pursue his

claims. Specifically, the magistrate judge ordered him to either pay the 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 (in forma pauperis status). Mr. Young

was warned that his actions would be dismissed without further notice if he failed

to cure the deficiencies in thirty days.

On July 1, 2009, Mr. Young filed the proper court-approved form used in

filing a request to proceed pursuant to 28 U.S.C. § 1915. The district court 

concluded, however, that the Motion and Affidavit were deficient because

Mr. Young did not submit a certificate from the warden or other appropriate

Appellate Case: 09-1320 Document: 01018377046 Date Filed: 03/03/2010 Page: 2
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officer of his place of confinement, showing the amount of money or securities

that he has in any account in the institution, as required pursuant to Rule 3 of the

Rules Governing Section 2254 Cases, and as he was directed to do on page two of

the § 1915 form. In appeal No. 09-1320, the court further observed:

The Court notes that Mr. Young states on Page Two of the 28

U.S.C. § 1915 Motion that he is unable to comply and refers to Case

No. 07-cv-02240-ZLW . . . Although in Case No. 07-cv-02240-ZLW

Mr. Young claimed he was unable to obtain a certified copy of his

account statement, the Court determined that Mr. Young refused to

follow the prison procedures for obtaining a certified copy of his

account statement.

Appeal No. 09-1320 Order of Dismissal at 2, R. Vol. 1 at 408. The court made no

such observation in Appeal No. 09-1337. The court then dismissed each of

Mr. Young’s actions for failure to cure all noted deficiencies. These appeals

followed.

Appeal No 09-1320

On appeal, Mr. Young argues that the district court “relied on false

information obtained through ex parte contacts with corrupt officers to dismiss

the case.” Appellant’s Op. Br. at 2. With respect to the district court’s

observation that, in another case (Case No. 07-cv-02240-ZLW), he had refused to

follow prison procedures, Mr. Young responds that “[t]his is a false statement of

material fact obtained through ex parte contacts with corrupt Officers.” Id. at

3-A. He further asserts, without any support, that the “BOP was withholding

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1

We note that, while the district court accepted Mr. Young’s

characterization of this case (Appeal No. 09-1337) as a § 2241 action, by virtue of

his using a § 2241 form, this case is more accurately characterized as a Bivens

action, challenging the conditions of his confinement. See Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Section 2241

requires a petitioner to challenge the fact of-not the conditions of-confinement.

(continued...)

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Inmate Account Statements and the information necessary to comply with

§ 1915.” Id.

The remainder of Mr. Young’s brief consists of unsupported and conclusory

allegations that the district court judge had: “repeatedly inundated [him] with

false warnings in various cases”; “violated the U.S. Constitution and committed

Mail Fraud”; and that the district judge and the magistrate judge had committed

“criminal acts.” Id. at 3-B, -D. He alludes to cases from other parts of the

country in which he claims to have proved “the rampant judicial misconduct in

Denver.” Id. at 3-C.

Appeal No. 09-1337

In this appeal, Mr. Young argues, similarly, that various prison officials

deliberately prevented him from providing an account statement. He also alleges

that certain prison personnel interfered with his briefing in this case, and

committed “Mail Fraud, Obstruction of Justice, conspiracy, extortion, etc.” 

Appellant’s Op. Br. at 4, Ex. Two. He provides no support for these allegations,

other than handwritten “Affidavits” in which he makes similar broad assertions.1

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1

(...continued)

See McIntosh v. United States Parole Com’n, 115 F.3d 809, 811-12 (10th Cir.

1997). Perhaps he is attempting to use § 2241 because he is presently subject to

the three-strikes bar against filing civil rights actions. See 28 U.S.C. § 1915(g). 

Furthermore, it appears that Mr. Young is using “magic words” such as

“imminent danger” or “loss of good time credits” to permit him to file either civil

rights actions or habeas actions. At some point, the district court may want to

consider requesting a response from the BOP with respect to whether such

allegations are in fact true. And, if the allegations are merely tactical conclusory

statements, then consideration should be given to whether or not filing restrictions

should be imposed with respect to Mr. Young’s prolific litigation. (The records

of this court disclose that Mr. Young has filed 11 matters in just the past seven

weeks.) Furthermore, as part of his conclusory allegations, Mr. Young claims to

have exhausted all administrative remedies. A response from the BOP on this

point would be helpful as well.

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Conclusion

Accordingly, we agree with the district court that Mr. Young’s actions must

be dismissed without prejudice for failure to cure the noted deficiencies. For the

foregoing reasons, the decisions of the district court are AFFIRMED. All other

pending motions, including Mr. Young’s motions for leave to proceed on appeal

ifp, are DENIED. 

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

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