United States District Court, D. Montana, Great Falls Division
MORRIS, UNITED STATES DISTRICT COURT JUDGE
Peter Norman Leek (Leek) is a prisoner incarcerated at
Crossroads Correctional Center in Shelby, Montana. Leek filed
a Complaint pro se on May 27, 2016. The named
Defendant is the Montana Board of Pardons and Parole. Leek
alleges that the Montana Board of Pardons and Parole violated
his constitutional rights in contravention of the 42 U.S.C.
§ 1983 when it denied his requests for parole on grounds
that he had failed to complete sex offender treatment.
States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on June 17, 2016. (Doc. 4).
Judge Johnston recommended that Leek's Complaint be
dismissed because the Eleventh Amendment to the United States
Constitution, the doctrine of claim preclusion, the doctrine
of issue preclusion, and the pronouncement of the United
States Supreme Court in Heck v. Humphrey, 512 U.S.
477 (1994), all barred Leek's § 1983 claims. (Doc. 4
at 4-7). Leek made two requests to extend the deadline for
filing objections to Judge Johnston's Findings and
Recommendations. (Docs. 6, 8). The Court granted both
filed his objections to Judge Johnston's Findings and
Recommendations on September 16, 2016. (Doc. 13). Leek also
filed, on the same date, a Motion to Amend Complaint. (Doc.
14). Leek seeks leave to amend his Complaint to assert
similar claims against four additional Defendants: two
members of the Montana Board of Pardons and Parole - Daryl
Dupuis and John Rex, as well as the State of Montana, and the
Montana Department of Corrections.
Court reviews de novo findings and recommendations
to which objections are made. 28 U.S.C. § 636(b)(1). The
Court has reviewed Judge Johnston's Findings and
Recommendations de novo. The Court finds no error in
Judge Johnston's Findings and Recommendations, and adopts
them in full.
Eleventh Amendment bars lawsuits in federal court against a
state or a state agency absent an express waiver of immunity
by the state. See Idaho v. Coeur d'Alene Tribe of
Idaho, 521 U.S. 261, 267-68 (1997); Puerto Rico
Aqueduct and Sewer Authority v. Metcalf & Eddy,
Inc., 506 U.S. 139, 144 (1993); Edelman v.
Jordan, 415 U.S. 651, 663 (1974). The State of Montana
has waived immunity only for tort claims brought in state
court. Mont. Code Ann. § 2-9-102. Leek's claims
against the Montana Board of Pardons are barred by the
Claim Preclusion and Issue Preclusion
doctrine of claim preclusion, also known as res
judicata, bars a party from re-litigating claims that
were raised or could have been raised in a prior action.
Owens v. Kaiser Foundation Health Plan, Inc., 244
F.3d 708, 713 (9th Cir. 2001; Wiser v. Montana Bd. of
Dentistry, 251 P.3d 675, 677 (Mont. 2011). The elements
of claim preclusion are: (1) the parties or their privies are
the same; (2) the subject matter of the present and past
actions is the same; (3) the issues are the same and relate
to the same subject matter; (4) the capacities of the parties
are the same to the subject matter and issues between them;
and (5) a final judgment on the merits has been entered.
estoppel, or issue preclusion, bars the reopening of an issue
that has been litigated and determined in a prior
suit.” Baltrusch v. Baltrusch, 130 P.3d 1267,
1273-74 (Mont. 2006). The elements of issue preclusion are:
(1) the issue raised was previously decided in a prior
adjudication; (2) a final judgment on the merits was issued
in the prior adjudication; (3) the party against whom
collateral estoppel is now asserted was a party or in privity
with a party to the prior adjudication; and (4) the party
against whom preclusion is asserted must have been afforded a
full and fair opportunity to litigate any issues which may be
claims in this case are barred by both claim and issue
preclusion. Leek filed a state petition for writ of habeas
corpus challenging the decision of the Montana Board of
Pardons and Parole. Leek argued, as he does here, that the
Board violated his constitutional rights when it denied his
parole request based upon his failure to complete sex
offender treatment. Leek v. Frink, 346 P.3d 364
(Table) (Mont. March 4, 2014). The Montana Supreme Court
concluded that the Board had not violated Leek's
constitutional rights, and denied Leek's petition.
a party to both this action and the Montana Supreme Court
action. The subject matter in both actions is the same. The
issue raised in this action was litigated in the prior state
court action. The capacities of the parties are the same. A
final judgment on the merits was issued in the state court
action. Leek had a full and fair opportunity to litigate the
issue in the state court proceeding. The claims asserted by
Leek in this action are barred by the doctrines of issue
preclusion and claim preclusion.
Motion to Amend Complaint
to amend a complaint is generally granted to pro se
litigants. Noll v. Carlson, 809 F.2d 1446, 1448 (9th
Cir. 1987). The Court may decline to grant leave to amend,
however, it is clear “that the deficiencies of the
complaint could not be cured by [the proposed]
amendment.” Id. As discussed above, Leek seeks
to amend his Complaint to assert similar claims against Board
member Daryl Dupuis, Board member John Rex, the State of
Montana, and the Montana ...