Case 1:13-cv-01640-BNB Document 7 Filed 07/30/13 USDC Colorado Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01640-BNB
BRANDON CHE LEE,
Applicant, named as Petitioner,
ORDER OF DISMISSAL
Applicant, Brandon Che Lee, is a prisoner in the custody of the Federal Bureau
of Prisons who currently is incarcerated at the Federal Correctional Institution in
Florence, Colorado. He initiated the instant action by filing pro se a Petition for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1).
On June 21, 2013, Magistrate Judge Boyd N. Boland entered an order (ECF No.
3) directing Mr. Lee within thirty days either to pay the $5.00 filing fee or to file on the
Court-approved form a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to
28 U.S.C. § 1915 in a Habeas Corpus Action. The June 21 order also directed him to
file on the Court-approved form an amended Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241. The June 21 order warned Mr. Lee that if he failed to
cure the designated deficiencies, the action would be dismissed without further notice.
On June 28, 2013, Mr. Lee filed an amended habeas corpus application. On July
16, 2013, he submitted a letter claiming he already had paid the $5.00 filing fee. On
Case 1:13-cv-01640-BNB Document 7 Filed 07/30/13 USDC Colorado Page 2 of 4
July 17, 2013, he submitted a copy of his request for the withdrawal of $5.00 to pay the
filing fee in this action. According to the Court’s docketing records, no filing fee has
been received in this action.
The Court must construe Mr. Lee’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, the amended
application will be denied and the action dismissed.
The amended application (ECF No. 4) Mr. Lee submitted to the Court on June 28
is not on the Court-approved form for filing an Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241. The June 21 order specifically directed Mr. Lee to obtain
the Court-approved form for filing an Application for 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 applicable instructions, at www.cod.uscourts.gov, to use in
filing the amended application. He has failed to do so.
The United States Court of Appeals for the Tenth Circuit repeatedly has upheld
the requirement that pro se litigants comply with local court rules requiring use of proper
Court-approved forms, and rejected constitutional challenges to such rules. See
Georgacarakos v. Watts, 368 F. App'x 917, 918-19 (10th Cir. 2010) (district court did
not abuse its discretion in dismissing civil rights action without prejudice for federal
prisoner's noncompliance with local rules requiring use of proper court-approved form to
file complaint and district court's order to comply), Durham v. Lappin, 346 F. App'x 330,
332-33 (10th Cir. 2009) (it was within district court's discretion to dismiss prisoner's
Case 1:13-cv-01640-BNB Document 7 Filed 07/30/13 USDC Colorado Page 3 of 4
complaint for failure to comply with local rules requiring pro se litigants to use
court-approved forms, and local rule did not violate prisoner's equal protection rights);
Kosterow v. United States Marshal's Serv., 345 F. App'x 321, 322-33 (10th Cir. 2009) (it
was within district court's discretion to dismiss complaint for failure to use proper court
form); Young v. United States, 316 F. App'x 764, 769-71 (10th Cir. 2009) (district court
order dismissing federal prisoner's pro se civil rights complaint without prejudice to his
ability to refile, based on his repeated refusal to comply with district court order directing
him to file amended complaint on court-approved prisoner complaint form as required
by local district court rule, was not abuse of discretion or constitutional violation); Maunz
v. Denver Dist. Court, 160 F. App'x 719, 720-21 (10th Cir. 2005) (district court did not
abuse its discretion in dismissing inmate's federal action where inmate failed to file
habeas corpus application on proper form designated by district court); Daily v.
Municipality of Adams County, 117 F. App'x 669, 671-72 (10th Cir. 2004) (inmate's
failure to comply with local rule requiring pro se prisoners to use court's forms to file
action was not nonwillful, and inmate's failure to use required form supported dismissal
In addition, Mr. Lee has failed within the time allowed to pay the $5.00 filing fee,
submit a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915 in a Habeas Corpus Action on the proper, Court-approved form, or request an
extension of time in which to do so.
Therefore, the amended application will be denied for failure to comply with the
directives of the June 28 order, and the action will be dismissed without prejudice. If Mr.
Lee wishes to pursue his claims, he may do so by initiating a new action with a habeas
Case 1:13-cv-01640-BNB Document 7 Filed 07/30/13 USDC Colorado Page 4 of 4
corpus application and § 1915 motion and affidavit submitted on the proper, Court-
approved forms. The forms for filing an Application for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 and a Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action are available, with the
assistance of Mr. Lee’s case manager or the facility’s legal assistant, along with the
applicable instructions, at www.cod.uscourts.gov.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Lee files a notice of appeal he must also pay the full $455.00 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the amended habeas corpus application (ECF No. 4) is denied
and the action dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules
of Civil Procedure for the failure of Applicant, Brandon Che Lee, to comply with the
directives of the order to cure dated June 28, 2013. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 30th day of July , 2013.
BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court