United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
CAROLYN S. OSTBY, Magistrate Judge.
This matter comes before the Court on Plaintiff Richard Hinman's Motion to Proceed in Forma Pauperis ( ECF 1 ) and proposed Complaint ( ECF 2 ).
I. MOTION TO PROCEED IN FORMA PAUPERIS
Hinman has filed a Motion to Proceed in Forma Pauperis and submitted an account statement sufficient to make the showing required by 28 U.S.C. §1915(a). ECF 1. 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), Hinman must pay the statutory $350.00 filing fee. Hinman submitted an account statement indicating he has insufficient funds to pay an initial partial filing fee. This fee will be waived but Hinman 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 Hinman 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 CASE
Hinman is a state prisoner proceeding without counsel. The named Defendants are the State of Montana and the Montana Attorney General. Complaint, ECF 2 at 1.
Hinman alleges that Judge Robb violated his due process rights when Judge Robb did not recuse himself from Hinman's 1994 criminal case because the Judge had handled Hinman's divorce. He contends that he did not receive a fair trial, there was ineffective assistance of counsel, bias and prejudice, he was denied a change of venue, and there was no evidence of a crime. Complaint, ECF 2-1 at 1-2.
III. PRELIMINARY SCREENING OF THE COMPLAINT
Because Hinman is a prisoner proceeding in forma pauperis, his Complaint is subject to screening under 28 U.S.C. § 1915 and 28 U.S.C. § 1915A. Sections 1915A(b) and 1915(e)(2)(B) require the Court to dismiss a complaint filed in forma pauperis and/or by a prisoner against a governmental defendant before it is served if it is frivolous or malicious, 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 is malicious if not pled in good faith. Kinney v. Plymouth Rock Squab. Co., 236 U.S. 43, 46 (1915). 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, ...