Owens-El v. Pugh ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS AUG 1 2001
TENTH CIRCUIT PATRICK FISHER
Clerk
JAMES JOSEPH OWENS-EL,
Petitioner-Appellant,
No. 00-1482
v. (D.C. No. 00-Z-2158)
(Colorado)
MICHAEL V. PUGH, Warden,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.
James Joseph Owens-El, a pro se federal prisoner, brought this petition
under 28 U.S.C. § 2241, alleging that his continuing incarceration is invalid
because the sentence he is serving was terminated on the government’s motion in
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
1992. He also alleges that he is being harassed and tortured through a mind-
control device. The district court found Mr. Owens’ claim that his sentence had
been terminated was contradicted by information Mr. Owens submitted in support
of his application, and dismissed this claim. Although the court construed Mr.
Owens’ allegations of harassment and torture as challenges to his conditions of
confinement which should have been asserted in a civil rights complaint, the court
addressed the merits and dismissed these claims as frivolous. Mr. Owens seeks
leave to proceed on appeal in forma pauperis.
The material attached to Mr. Owens’ application contains a docket sheet
from the federal district court in the Central District of California, which reflects
that the proceedings in his underlying criminal prosecution for attempted murder
were dismissed on the government’s motion on March 23, 1992. However, the
record also contains a notice of clerical error from the district court clerk stating
that this docket entry was in error, as well as a docket entry of the notice of error.
Accordingly, Mr. Owens’ challenge to his continuing incarceration is factually
baseless.
The district court dismissed Mr. Owens’ claims concerning his conditions
of confinement under 28 U.S.C. § 1915(e)(2)(B), concluding that they were
factually frivolous. Subsequent to the district court’s dismissal, we held that a
petitioner may not raise challenges to conditions of confinement in a section 2241
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petition. See Boyce v. Ashcroft, 251 F.3d 911, 918 (10th Cir. 2001). Such a
claim must be brought instead as a civil rights action under Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971).
For the reasons set out above, we conclude that Mr. Owens has failed to
demonstrate the existence of a reasoned, nonfrivolous argument on the law and
facts in support of the issues raised on appeal. Accordingly, we deny his request
to proceed in forma pauperis and DISMISS his appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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