United States District Court, District of Montana, Missoula Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE
Order and Findings and Recommendations of United States Magistrate Judge Pending are Plaintiff Troy Brimm's Motion for Leave to Proceed in Forma Pauperis and proposed Complaint. (Doc. 1, 2). Brimm, appearing pro se, brings this action alleging malicious prosecution and abuse of power and intentional infliction of emotional distress.
I. Motion to Proceed in Forma Pauperis
Brimm 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). Brimm submitted an account statement showing average monthly deposits of $70.83 over the six months period immediately preceding the filing of his Complaint. (Doc. 1.) Therefore, an initial partial filing fee of $14.17 will be assessed by this Order. 28 U.S.C. § 1915(b)(1)(B) (allowing an assessment in the amount of 20% of the prisoner's average monthly deposits). A separate order will direct the agency having custody of Brimm to collect the initial partial filing fee from Brimm's account and forward it to the Clerk of Court.
Thereafter, Brimm must 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 Brimm 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
Brimm alleges he is a citizen and resident of the United States and Montana. He alleges Defendant Diomedes Genao-Gomez is a tourist driver for the Hotel Barcelo in Sosua, Puerto Plata and a resident of the Dominican Republic. There is no indication of the employment of the other named Defendants Maria Cornelia Martinez-Tomas, Bernardo Silverio, Romita Rodriguez, D.S.G.M. and J.A.R.P. but they are all listed as residents of the Dominican Republic. (Complaint, Doc. 2 at 1-2.)
Brimm alleges that on May 3, 2012, Defendants Genao, D.G. and J.R. made a false report to police in Cabarete alleging that Brimm had engaged in sex acts with D.G. and J.R. Based on this information, Brimm was arrested and charged with a crime of sex with minors. At the office of the District Attorney in Puerto Plata, Defendants Genao, Martinez, Silverior, and Rodriguez demanded that Brimm pay a sum of $25, 000 dollars in order for the charges against him to "disappear." Brimm refused. At his preliminary hearing on May 4, 2012, after witness testimony that Genao was already known to have attempted a similar scheme using his daughter, the charges against Brimm were dismissed with prejudice. (Complaint, Doc. 2 at 3.)
Brimm brings claims of malicious prosecution and abuse of process and intentional infliction of emotional distress.
C. Criminal Action
Brimm was charged by indictment in the United States District Court for the Southern District of Florida on June 26, 2012 of two counts of engaging in illicit sexual conduct in foreign places with a minor in violation of 18 U.S.C. § 2423(c) and one count of being a registered sex offender who committed a felony sex offense involving a minor in violation of 18 U.S.C. § 2260A. United States v. Troy Douglas Brimm, I:12cv20482-KMM (S.D. Florida, Doc. 6-Indictment.)The victims in the Florida case are the minors D.S.G.M. and J.A.R.P. who are named as Defendants in this case. Another named Defendant, Maria Martinez, appears to be the mother of D.S.G.M. United States v. Troy Douglas Brimm, I:12cv20482-KMM (S.D. Florida, Doc. 99-Sentencing Transcript at 19.)
Brimm proceeded to jury trial on August 28, 2012 and was found guilty of all three counts. He was sentenced to 413 months imprisonment in January 2013. He has appealed his conviction and sentence. United States v.Troy Douglas Brimm, I:12cv20482-KMM (S.D. Florida, Doc. 86-Judgment; Doc. 88-Notice of Appeal.) That appeal is currently pending before the Eleventh Circuit Court of ...