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Aquilar-Avellaveda v. Terrell - Document No. 3

Aquilar-Avellaveda v. Terrell - Document No. 3

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Published by Justia.com
ORDER ENTERED: Plaintiff is granted twenty (20) days to supplement the record to avoid dismissal of the complaint without prejudice pursuant to 42 U.S.C. 1997e(a). Signed by Senior Judge Sam A. Crow on 07/27/06.(smnd) 5:2006cv03201 Kansas District Court
ORDER ENTERED: Plaintiff is granted twenty (20) days to supplement the record to avoid dismissal of the complaint without prejudice pursuant to 42 U.S.C. 1997e(a). Signed by Senior Judge Sam A. Crow on 07/27/06.(smnd) 5:2006cv03201 Kansas District Court

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Published by: Justia.com on Apr 30, 2008
Copyright:Public Domain

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05/09/2014

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1The court notes alternative spellings of plaintiff\u2019s name in
court records.

The spelling of plaintiff\u2019s name in his criminal case and direct appeal is \u201cAquilar-Avellaveda,\u201d and this appears to be the spelling of plaintiff\u2019s name in Bureau of Prisons records. In his 2255 motion and appeal, plaintiff\u2019s name is spelled as \u201cAguilar-Avellaneda.\u201d Although plaintiff\u2019s pleadings in the instant action reflect this latter spelling of his name, the court uses plaintiff\u2019s name as spelled by the Bureau of Prisons.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSE ELI AQUILAR-AVELLAVEDA,1
Plaintiff,
v.
CASE NO. 06-3201-SAC
DUKE TERRELL,
Defendant.
ORDER

Before the court is a civil complaint filed by a prisoner incarcerated in the United States Penitentiary in Leavenworth, Kansas (USPLVN). Also before the court is plaintiff\u2019s motion for leave to proceed in forma pauperis under 28 U.S.C. \u00a7 1915.

Plaintiff essentially seeks injunctive relief and discovery related to his allegations that USPLVN staff have intercepted and destroyed legal materials plaintiff prepared for submission to the United States District Court for the Middle District of Florida. Plaintiff also claims the lighting in his segregated cell causes him sleep deprivation and constitutes \u201cmental de-programming.\u201d

Case 5:06-cv-03201-SAC Document 3
Filed 07/27/2006 Page 1 of 3
Aquilar-Avellaveda v. Terrell
Doc. 3
Dockets.Justia.com
2

Although plaintiff asserts jurisdiction under 42 U.S.C. \u00a7 1983 and the Alien Tort Claims Act, 28 U.S.C. \u00a7 1350, the court liberally construes this action as seeking relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for the alleged violation of plaintiff\u2019s constitutional rights.

The court further finds the complaint is subject to being dismissed without prejudice based on plaintiff\u2019s apparent failure to fully exhaust administrative remedies.

Pursuant to 42 U.S.C. \u00a7 1997e(a), plaintiff is required to fully exhaust administrative remedies on all claims presented in his complaint.

Plaintiff has the burden of pleading exhaustion of
administrative remedies.

He \u201cmust provide a comprehensible statement of his claim and also either attach copies of administrative proceedings or describe their disposition with specificity.\u201d Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1211 (10th Cir. 2003).

Because plaintiff identifies no such exhaustion of administrative remedies on any of his claims, the court directs plaintiff to show cause why the complaint should be not be dismissed without prejudice to plaintiff refiling his complaint when he can satisfy this statutory requirement for bringing an action in a federal court. The failure to file a timely response may result in the dismissal of this matter without prejudice and without further prior notice to the plaintiff.

IT IS THEREFORE ORDERED that plaintiff is granted twenty (20) days to supplement the record to avoid dismissal of the complaint without prejudice pursuant to 42 U.S.C. \u00a7 1997e(a).

Case 5:06-cv-03201-SAC Document 3
Filed 07/27/2006 Page 2 of 3

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