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Gunderson v. McLean

United States District Court, District of Montana, Missoula Division

February 6, 2014

BRIAN DAVID GUNDERSON, Plaintiff,
v.
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

A. Parties

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.)

III. PRESCREENING


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