DONALD P. ROGERS, Plaintiff,
DEPUTY KING, DEPUTY BURT, ASS. DEPUTY COUNTY ATTORNEY JASON TROY MARKS, CHIEF COUNTY ATTORNEY FRED VAN VALKENBURG, CITY OF MISSOULA JUDICIAL COURT SYSTEM, and the COUNTY OF MISSOULA, Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
JEREMIAH C. LYNCH, Magistrate Judge.
Pending are Plaintiff Donald Rogers' 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, 5, 7, 8). Rogers, appearing pro se, brings this action under 42 U.S.C. § 1983 alleging his Federal Constitutional rights were violated during the course of a criminal proceeding prosecuted against him by the State of Montana. Because the state criminal proceeding remains pending, the Court must abstain from hearing Rogers' claims. His claims for injunctive and declaratory relief should be dismissed. But his claims for monetary relief will be stayed.
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' account statement shows he has insufficient funds to pay an initial partial filing fee and therefore that fee will be waived. 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).
Rogers is a prisoner proceeding without counsel. He names the following Defendants: Missoula County Sheriff's Deputy King; Missoula County Sheriff's Deputy Burt; Assistant County Attorney Jason Troy Marks; Chief County Attorney Fred Van Valkenburg; the City of Missoula; and the County of Missoula.
A. Statement of Claims
Rogers was arrested on April 16, 2011 for alleged sexual assault, partner family member assault and unlawful restraint. He contends that during the course of the arrest, Deputies King and Burt allowed the alleged victim to erase certain contents of his cell phone. They then allegedly withheld information about the victim tampering with his phone from the prosecutors and judges deciding his criminal case.
Rogers also alleges that Defendants Marks and VanValkenburg presented a declaration in support of the charges being filed against him but did not include "a number of discreet details" of the actions of the alleged victim. Dkt 2, p. 7. Rogers contends that Deputy County Attorney Jason Marks was fully aware that the alleged victim had a history of "assaultive and past domestic disorder" but Marks did not disclose this information in testimony to the magistrate. Rogers contends the magistrate was mislead in his/her reliance on the "internal content" of Jason Marks' testimony. He contends Marks went outside the professional duties of a prosecutor and conducted a private investigation with the alleged victim. Dkt 2, ¶ 38. Rogers alleges that Marks (under the supervision of VanValkenburg, the City of Missoula and Missoula County) either allowed law enforcement or Marks himself removed photos of the victim's "animalistic" bite marks to Rogers' neck and ear from official police reports.
Rogers contends Marks knowingly withheld evidence, failed to reveal that the alleged victim had made false accusations in the past against him, knowingly refused forensic testing of bed linens in discovery, refused to disclose medical reports from First Step (commonly known as the rape kit), refused to disclose 911 archives of the victim being previously removed from Rogers' home or the 911 call claiming Rogers sexually assaulted her during a domestic assault, filed a motion in limine to preclude Rogers from claiming self defense, withheld facts relevant to Rogers' self defense claim, and withheld expungement statutes from Rogers.
B. State Court Proceedings
In 2011, Rogers was convicted of eight criminal counts including sexual intercourse without consent, partner or family member assault, unlawful restraint, and violation of a no contact order. On February 29, 2012, he was sentenced to forty years at the Montana State Prison with twenty years suspended. Rogers appealed his conviction to the Montana Supreme Court. On August 13, 2013, the day after this action was filed, the Montana Supreme Court reversed and remanded Rogers' conviction for a new trial on all charges, finding that the State's introduction of Rogers' criminal history, including convictions overturned by an appellate court for legal error, violated Rogers' right to a fair trial. State v. Rogers, 2013 MT 221 (August 13, 2013).