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Tirey v. Lemach

United States District Court, District of Montana, Helena Division

January 24, 2014

ROLAND TIREY, Plaintiff,
v.
SAMIEL LEMACH, JOHN WARD, STEVE KREMER, DEPUTY WARDEN MEHELICH, DOC DIRECTOR BATISTA, and DOES 1-10, Defendants.

FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

KEITH STRONG UNITED STATES MAGISTRATE JUDGE

SYNOPSIS

Plaintiff Roland Tirey has filed a Complaint challenging the denial of his parole and the denial of access to his parole file. (Complaint, Doc. 2). Defendants Lemach and Ward are entitled to immunity, Mr. Tirey’s claims are barred by the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994), and Mr. Tirey has failed to state a procedural Due Process claim. The Complaint should be dismissed.

JURISDICTION

Mr. Tirey filed this action in federal court, in the Helena Division of the District of Montana. (Complaint, Doc. 2.) Venue is proper, as he is incarcerated in and alleges wrongs committed in Powell County and Lewis and Clark County, Montana. Local Rule 3.2(b)(3). The Court has personal jurisdiction over the parties, all of whom are found in Montana. Fed.R.Civ.P. 4(k)(1)(A); Mont. R. Civ. P. 4(b). Read liberally, the Complaint attempts to allege a violation under 42 U.S.C. § 1983, invoking subject matter jurisdiction. 28 U.S.C. § 1331, 28 U.S.C. § 1343(a). The case was assigned to Hon. Donald W. Molloy, United States District Court Judge, and referred to the undersigned. Local Rule 72.2(a)(1).

STATUS

Mr. Tirey is a prisoner proceeding in forma pauperis. His Complaint must be reviewed to determine if the allegations are frivolous, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A. If so, the case must be dismissed. 28 U.S.C. §§ 1915(e)(2), 1915A(b). This is the review.

STANDARDS

Stating a claim

A complaint must allege sufficient factual matter to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility is less than probability, but requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. Pleadings that are no more than conclusions are not entitled to the presumption of truth and may be disregarded. Id. at 679. A plaintiff must plead the essential elements of a claim to avoid dismissal for failure to state a claim. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

Leave to amend

Pro se orders must be liberally construed. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). “Unless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995).

Leave to amend a complaint should be given freely “when justice so requires.” Fed.R.Civ.P. 15. However, a district court should dismiss a complaint without granting leave to amend if amendments would be futile. Klamath Lake Pharmaceutical Ass’n v. Klamath Medical Services Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983). “Leave to amend need not be given if a complaint, as amended, would be subject to dismissal.” Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989).

Absolute Immunity of Parole Board Members

In the Ninth Circuit, “parole board members are entitled to absolute immunity when they perform quasi-judicial functions.” Swift v. California, 384 F.3d 1184, 1189 (9th Cir. 2004) (citations and internal quotations omitted). Quasi-judicial functions, which are “functionally comparable to tasks performed by judges, ” exist where parole board members adjudicate whether “to grant, deny, or revoke parole.” Swift, 384 F.3d at 1189; see also Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981). This ...


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