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Wing v. State

United States District Court, D. Montana, Billings Division

April 17, 2015

JACOB ALLEN WING, Plaintiff,
v.
STATE OF MONTANA and MONTANA ATTORNEY GENERAL, Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

CAROLYN S. OSTBY, Magistrate Judge.

This matter comes before the Court on Plaintiff Jacob Wing's Motion to Proceed in Forma Pauperis ( ECF 1 ) and proposed Complaint ( ECF 2 ).

I. MOTION TO PROCEED IN FORMA PAUPERIS

Wing 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), Wing must pay the statutory $350.00 filing fee. Wing submitted an account statement indicating he has insufficient funds to pay an initial partial filing fee. This fee will be waived but Wing 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 Wing 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

A. Parties

Wing 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, 5.

B. Allegations

Wing alleges that his constitutional rights were violated when the judge who took part in the accusatory information process went on to preside over further proceedings in the state's case against him. Complaint (ECF 2) at 11. He alleges that he is in prison illegally and should be released forthwith. He claims there was no evidence in the case against him, his public attorney did not represent him well, the judge was biased and should have recused himself, the victim was led to believe what the prosecution told them, and he was coerced into pleading guilty. Complaint (ECF 2) at 6.

III. PRELIMINARY SCREENING OF THE COMPLAINT

A. Standard

Because Wing 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, before it is served, a complaint filed in forma pauperis and/or by a prisoner against a governmental defendant 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, ...


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