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Rogers v. Corrigan

United States District Court, Ninth Circuit

September 3, 2013

DONALD P. ROGERS, Plaintiff,
v.
CHIEF COUNTY ATTORNEY ED CORRIGAN, DISTRICT COURT JUDGE KITTY CURTIOUS; CITY OF KALISPELL, and the COUNTY OF FLATHEAD Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

JEREMIAH C. LYNCH, Magistrate Judge.

Pending are Plaintiff Donald Rogers's Motion for Leave to Proceed in Forma Pauperis, proposed Complaint, Motion to Appoint Counsel, Motion to Produce Documents, Motion to Preclude Defendants from Official Immunity, and Petition Requesting Stay of Civil Rights Complaint. (Dkt. #s 1, 2, 3, 4, 5, 7). Rogers alleges his constitutional rights were violated when a criminal conviction for sexual assault from the 1990s was reversed on appeal and dismissed but was not expunged from his record pursuant to state law.

Rogers's allegations fail to state a federal claim upon which relief can be granted and the Complaint should be dismissed with prejudice.

I. Motion to Proceed in Forma Pauperis

Rogers submitted a declaration and account statement sufficient to make the showing required by 28 U.S.C. §1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a). Rogers's account statement shows he has insufficient funds to pay an initial partial filing fee and therefore that fee will be waived. But Rogers must still make monthly payments of 20% of the preceding month's income credited to his prison trust account. The percentage is set by Congress and cannot be altered. 28 U.S.C. § 1915(b)(2). A separate order will direct the agency having custody of Rogers to forward payments from his account to the Clerk of Court each time the account balance exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

II. Statement of the Case

A. Parties

Rogers is a prisoner proceeding without counsel. He names the following Defendants: Ed Corrigan, Flathead County Attorney; Kitty Curtious, [1] the City of Kalispell, and Flathead County.

B. Statement of Claims

In the late 1990s, Rogers was arrested, tried and convicted of sexual assault. The Montana Supreme Court reversed that conviction and remanded it back for retrial. All charges were eventually dismissed.

Rogers contends Defendants Corrigan and Curtis violated Mont. Code Ann. § 46-23-510 by not expunging all records pertaining to his arrest and prosecution for the alleged sexual assault.[2]

He alleges Defendants Corrigan and Curtis "withheld expungement details" and Rogers did not discover the fact that the expungement statutes were ignored until approximately 2012. Rogers claims that in doing so, Corrigan and Judge Curtis violated his rights to due process and equal protection of the law as secured to him by both the United States and Montana Constitutions. He alleges that as a result he suffers severe mental anguish and emotional trauma.

As to Defendants City of Kalispell and Flathead County, Rogers alleges those entities permitted and tolerated a pattern, practice, and usage by Flathead County officials ignoring and withholding expungement statutes. As a result, Rogers contends he was denied his right to be free from self incrimination and due process of the law.[3]

Rogers seeks compensatory damages, punitive damages, declaratory relief, and a permanent injunction enjoining defendants from engaging in the practice of withholding ...


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