United States District Court, D. Montana, Billings Division
MOTION TO PROCEED IN FORMA PAUPERIS AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE TO DISMISS COMPLAINT
CAROLYN S. OSTBY, Magistrate Judge.
Pending is Plaintiff Jackson Baugus's proposed Complaint ( ECF 1 ) and Motion to Proceed in Forma Pauperis ( ECF 3 ). Baugus alleges his attorneys failed to prevent the seizure of cash and property thus depriving him of due process of law. Complaint, ECF 1 at 1. The motion to proceed in forma pauperis will be granted but the Complaint should be dismissed based upon the issue preclusion doctrine, Baugus's failure to file within the applicable statute of limitations, and his failure to name a proper party defendant.
I. JURISDICTION AND VENUE
The Court has personal jurisdiction over the named parties. Baugus has attempted to present a federal question over which jurisdiction lies pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343(a). He asserts there is supplemental jurisdiction over his state tort claims pursuant to 28 U.S.C. § 1367. Venue is proper in this judicial district and division pursuant to 28 U.S.C. § 1391 and Local Rule 3.2(b)(3).
II. MOTION TO PROCEED IN FORMA PAUPERIS
Baugus submitted a declaration and account statement sufficient to make the showing required by 28 U.S.C. §1915(a). ECF 3. 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), Baugus must pay the statutory $350.00 filing fee. Baugus 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 Baugus will be directed to forward payments from Baugus'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).
III. STATEMENT OF CASE
Baugus is a federal prisoner proceeding without counsel. He names the following Defendants: Mark Werner, Attorney at Law; Robert Stevens, Jr., Attorney at Law; Mark T. Errebo, Attorney at Law; Bryan B. Norcross, Attorney at Law; James E. Boland, Attorney at Law; James Seykora, Attorney at Law; and Other Unnamed John Does. Complaint, ECF 1 at 2.
Defendants Werner, Stevens, Errebo, and Norcross are listed as Baugus's defense attorneys in his criminal case. See Criminal Action No. 02-cr-133-BLG-SEH. Mr. Boland was appointed as one of the Class counsel by the Montana Eighth Judicial District Court, Cascade County to represent the plaintiff class in a Class action lawsuit which included Baugus as a plaintiff. Complaint, ECF 1 at 8; Criminal Action No. 02-cr-133-BLG-SEH, Answer of Garnishee, ECF 162. James Seykora was an Assistant United States Attorney who prosecuted Baugus in Criminal Action No. 02-cr-133-BLG-SEH.
Baugus alleges his defense attorneys and other unnamed John Does failed in their duty to prevent the taking of $7, 724.00 of seized cash, $72, 651.88 in settlement proceeds, and approximately $4, 800.00 in uncashed checks, money orders, and other negotiable instruments thus depriving Baugus of due process of law. Complaint, ECF 1 at 1.
Baugus alleges he had $7, 724.00 in his possession when he was arrested on November 10, 2002. The cash was confiscated and turned over to government agents. He was subsequently charged with 21 U.S.C. § 853 criminal forfeiture along with a number of other criminal charges. Baugus was convicted in 2003 on federal charges and his sentence included a fine of $75, 000 and a $400 special assessment. Criminal Action No. 02-CR-00133-SEH, ECF 103. He alleges the jury said no to the forfeiture of the $7, 724.00 in seized cash but the government did not return this money and his attorney, Mark Errebo refused to ask for the money back. Complaint, ECF 1 at 4.
On August 21, 2006, the United States applied to garnish a class action civil settlement award Baugus received in order to pay the fine and special assessment. Criminal Action No. 02-CR-00133-SEH, ECF 157. A Writ of Garnishment was issued on August 23, 2006. Criminal Action No. 02-CR-00133-SEH, ECF 158. Baugus was given notice of post-judgment garnishment on or about August 21, 2006 but he was not aware that he had been awarded a class action settlement in the amount of $72, 651.00 at that time. Complaint, ECF 1 at 5, ¶ 15. He was not notified of the class action award until after September 10, 2006. Complaint, ECF 1 at 5, ¶ 17. Baugus filed a motion for counsel and motion for hearing attempting to challenge the garnishment but the motions were denied. Complaint, ECF 1 at 5-6, ¶¶ 19-20. On June 15, 2010, Judge Haddon ruled that the $7, 724.00 seized from Baugus on November 10, 2001 was to be applied to the fine imposed on Baugus. Complaint ECF 1 at 4-5, ¶ 11; see also Criminal Action No. 02-cr-133-BLG-SEH, ECF 222.
Baugus has twice appealed the garnishment issue and the Ninth Circuit affirmed the district court's decision on both appeals. United States v. Baugus, 310 Fed.Appx. 120 (9th Cir. 2009) (court did not err in denying Baugus's motion for counsel, for a hearing, to reconsider and to vacate prior order regarding garnishment of $72, 651.00); United States v. Baugus, 463 Fed.Appx. 638 (9th Cir. 2011) (court did not err in applying $7, 724.00 in seized funds to an unsatisfied fine of $75, 000.00). In addition, Baugus filed a similar civil action in this Court in 2012 against Judge Sam Haddon, Thomas Boland, and Victoria Francis alleging the wrongful garnishment of the $72, 651.88. See Civil Action No. 12-cv-109-BLG-RFC-CSO. The Court found that Baugus's claims were time-barred and issue-precluded, that Judge Haddon and Ms. Francis were absolutely immune from suit, and Mr. Boland could not be liable under federal law because he was not a state actor. Civil Action No. 12-cv-109-BLG-RFC-CSO, October 4, 2012 Order adopting Findings and Recommendations of U.S. Magistrate Judge, ECF 8.
Baugus alleges his counsel was inadequate and ineffective by allowing the seizure of his money thus denying him both liberty and property in violation of his right to due process and equal protection of the laws. Complaint, ECF 1 at 7, Claim #1. He alleges class action counsel, Thomas Boland, was ineffective when he facilitated the seizure of the $72, 651.88 class action award by federal officials in violation of Baugus's constitutionally guaranteed rights. Complaint, ECF 1 at 8, Claim #2. He also alleges he was denied due process and equal protection as guaranteed in the Fourth, Fifth and Sixth Amendments when he was denied a hearing and the appointment of legal counsel at the urging of the AUSA. Complaint, ECF 1 at 9, Claim #3.
IV. 28 U.S.C. §§ 1915(e)(2) REVIEW
Baugus is a federal prisoner proceeding in forma pauperis so his Complaint is reviewed under 28 U.S.C. § 1915. Section 1915(e)(2)(B) allows for the dismissal of a complaint filed in forma pauperis before it is served upon the defendants if it is frivolous, fails to state a claim upon which relief may be ...