United States District Court, District of Montana, Missoula Division
February 6, 2014
BRIAN DAVID GUNDERSON, Plaintiff,
ED MCLEAN, SUZY BOYLAN, and JANET ERB, Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Plaintiff Brian David Gunderson’s Complaint and Motion to Proceed in Forma Pauperis. (Docs. 1, 2.)
I. MOTION TO PROCEED IN FORMA PAUPERIS
Gunderson 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).
Pursuant to 28 U.S.C. § 1915(b)(1), Gunderson must pay the statutory $350.00 filing fee. Gunderson has insufficient funds to pay an initial partial filing fee but will be required to make monthly payments of 20 percent of the preceding month’s income credited to his institutional account. The percentage is set by statute and cannot be altered. See 28 U.S.C. § 1915(b)(2). By separate order, the agency having custody of Gunderson will be directed to forward payments from Gunderson’s account to the Clerk of Court each time the amount in the account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
II. STATEMENT OF THE CASE
Gunderson is a prisoner proceeding without counsel. He is incarcerated at Montana State Prison in Deer Lodge, Montana. The named defendants are Montana State District Court Judge Ed McLean, Missoula County Montana Deputy County Attorney Suzy Boylan, and Montana Interstate Compact Specialist Janet Erb. (Complaint, Doc. 2 at 3.)
B. Factual Allegations
Gunderson alleges that he was sentenced by Judge McLean on August 7, 2006 to a term of ten years with eight years suspended. The suspended portion of the sentence was transferred to Nebraska, through the interstate compact process. Gunderson committed a felony while he was on supervision and was sentenced to the Nebraska Department of Corrections to no less than one year and no more than two years on May 24, 2010. On September 23, 2010, while Gunderson was incarcerated in Nebraska, an affidavit in support of the Petition to Revoke his Montana eight-year suspended sentence along with a report of violation was filed by Janet Erb.
On February 24, 2011, Gunderson discharged his prison term in Nebraska and was transported to the Missoula County Detention Facility. On April 6, 2011, Gunderson appeared before Judge McLean and was sentenced to eight years in the Montana Department of Corrections with six years suspended. He complains that he was not given credit for the time he served in Nebraska from September 23, 2010 until February 2011.
Gunderson seeks compensatory damages in the amount of $453, 000.00 for false imprisonment and emotional distress. (Complaint, Doc. 2 at 5.)
Gunderson is a prisoner proceeding in forma pauperis so his Complaint is reviewed under 28 U.S.C. § 1915, 1915A. Sections 1915A(b) and 1915(e)(2)(B) allow for the dismissal of a pro se prisoner complaint before it is served upon the defendants if it is frivolous, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.
A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted if a plaintiff fails to allege the “grounds” of his “entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted). Rule 8(a)(2) requires a complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted).
“A document filed pro se is ‘to be liberally construed, ’ and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers’.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); Cf. Fed.R.Civ.P. 8(f) (“All pleadings shall be so construed as to do substantial justice”).
Although the statute requires a dismissal for the reasons stated, it does not deprive the district court of its discretion to grant or deny leave to amend. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). The court can decline to grant leave to amend if “it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez, 203 F.3d. at 1127 (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).
Gunderson’s claims must be dismissed pursuant to the doctrine set forth in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In Heck, the United States Supreme Court held that a civil rights complaint under § 1983 cannot proceed when “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487. To find that Gunderson was entitled to credit for time served would imply the invalidity of his sentence which is impermissible. Since there is no indication that Gunderson’s sentence has been invalidated, the Complaint must be dismissed.
In addition, Judge McLean is entitled to judicial immunity. A plaintiff cannot state a claim against a judicial officer under 42 U.S.C. § 1983 “because [a] judge is absolutely immune for judicial acts.” Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); see also Mireles v. Waco, 502 U.S. 9, 11–12 (1991). Judge McLean’s rulings and sentencing of Gunderson are “unquestionably [ ] judicial acts.” See Simmons, 318 F.3d at 1161; Stump v. Sparkman, 435 U.S. 349, 362 (1978). Judge McLean is entitled to judicial immunity from suit.
Similarly, Ms. Boylan is entitled to prosecutorial immunity. Prosecuting attorneys who act within the scope of their duties are also absolutely immune from a suit brought for damages under 42 U.S.C. § 1983 “insofar as that conduct is ‘intimately associated with the judicial phase of the criminal process, ’” Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Ashelman v. Pope, 793 F.2d 1072, 1076, 1078 (9th Cir. 1986). This is so even though the prosecutor has violated a plaintiff’s constitutional rights or acts with malicious intent. Broam v. Bogan, 320 F.3d 1023, 1028–29 (9th Cir. 2003); Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005). Ms. Boylan’s conduct in prosecuting Gunderson for violating the terms of his suspended sentence is intimately associated with the judicial phase of the criminal process. Ms. Boylan is entitled to prosecutorial immunity.
Finally, the only allegation against Ms. Erb is that she filed the petition to revoke Gunderson’s suspended sentence. There is no plausible claim that Ms. Erb was involved in the determination to grant or deny Gunderson credit for time served. That determination was a judicial decision made by Judge McLean. Gunderson has failed to state a claim against Ms. Erb.
Gunderson’s claims are barred by the Heck doctrine, Judge McLean is entitled to judicial immunity, Ms. Boylan is entitled to prosecutorial immunity, and Gunderson has failed to state a claim against Ms. Erb. These are not defects which could be cured by the allegation of additional facts. The Complaint should be dismissed.
A. “Strike” under 28 U.S.C. § 1915(g)
The Prison Litigation Reform Act prohibits prisoners from bringing forma pauperis civil actions if the prisoner has brought three or more actions in federal court that were dismissed for frivolousness, maliciousness, or for failure to state a claim. 28 U.S.C. § 1915(g).
The question of whether a complaint dismissed pursuant to Heck, 512 U.S. 477 constitutes a strike has not been addressed by the Ninth Circuit. Andrews v. Cervantes, 493 F.3d 1047, 1052, n. 2 (9th Cir. 2007). However, the Supreme Court in Heck stated its ruling was based on a denial of “the existence of a cause of action.” Heck, 512 U.S. at 489. Several other courts have held that Heck dismissals constitute dismissals for failure to state a claim. See e.g., Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (“A §1983 claim which falls under the rule in Heck is legally frivolous.”); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) (“[I]n light of Heck, the complaint was properly dismissed for failure to state a claim.”); Ransom v. Westphal, et al., 1:08 CV 01327-DMS-AJB (E.D. Cal. April 4, 2010); Romero v. United States, et al., No. CV 11-531-PHX-DGC 2011 U.S. Dist. WL 1261293 (D.Ariz. Apr. 5, 2011). This authority is persuasive. Dismissal pursuant to Heck should be a strike under 28 U.S.C. §1915(g).
In addition, Gunderson’s claims are barred by judicial immunity, prosecutorial immunity, and he has failed to state a claim against Ms. Erb. The dismissal of this case should constitute a strike.
B. Certification Regarding Appeal
The Federal Rules of Appellate Procedure provide as follows:
[A] party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless: (A) the district court-before or after the notice of appeal is filed-certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding;
Analogously, 28 U.S.C. § 1915(a)(3) provides “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). A plaintiff satisfies the “good faith” requirement if he or she seeks review of any issue that is “not frivolous.” Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (quoting Coppedge, 369 U.S. at 445). For purposes of section 1915, an appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989); Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984).
The record makes plain the instant Complaint is frivolous as it lacks arguable substance in law or fact. As such, no reasonable person could suppose an appeal would have merit. The Court should certify that any appeal of this matter would not be taken in good faith.
C. Address Changes
At all times during the pendency of this action, Gunderson SHALL IMMEDIATELY ADVISE the Court of any change of address and its effective date. Failure to file a notice of change of address may result in the dismissal of the action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b).
Based upon the foregoing, the Court issues the following:
1. Gunderson’s Motion to Proceed in Forma Pauperis (Doc. 1) is granted.
2. The Clerk shall edit the text of the docket entry for the Complaint (Doc. 2) to remove the word “LODGED” and the Complaint is deemed filed on January 29, 2014.
Further, the Court issues the following:
1. The Complaint (Doc. 2) should be dismissed.
2. The Clerk of Court should be directed to close this matter and enter judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
3. The Clerk of Court should be directed to have the docket reflect that this dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g).
4. The Clerk of Court should be directed to have the docket reflect that the Court certifies pursuant to Fed.R.App.P. 24(a)(3)(A) that any appeal of this decision would not be taken in good faith. The record makes plain the instant Complaint is frivolous as it lacks arguable substance in law or fact.
NOTICE OF RIGHT TO OBJECT TO FINDINGS & RECOMMENDATIONS AND CONSEQUENCES OF FAILURE TO OBJECT
Gunderson may file objections to these Findings and Recommendations within fourteen (14) days after service (mailing) hereof. 28 U.S.C. § 636. Failure to timely file written objections may bar a de novo determination by the district judge and/or waive the right to appeal.
This order is not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed.R.App.P. 4(a), should not be filed until entry of the District Court’s final judgment.