United States District Court, D. Montana, Great Falls Division
Timothy J. Cavan United States Magistrate Judge
matter is pending on Plaintiff Victor Fourstar's
Complaint (Doc. 2); Motions to Recuse (Docs. 5, 8) and Motion
to Amend and Motion to Stay pending Exhaustion of Tribal
Court Remedies (Doc. 7). Mr. Fourstar is a prisoner proceeding
in forma pauperis and without counsel.
being found guilty of aggravated sexual abuse, Mr. Fourstar
was sentenced by Judge Haddon on February 27, 2003 to 188
months custody, followed by 60 months supervised release. He
began his term of supervised release on December 9, 2016.
December 16, 2017, Michael Eliason, United States Probation
Officer prepared a request to modify the terms of supervision
with consent of offender. Mr. Eliason indicated that the
modified conditions were necessary to conform with Ninth
Circuit case law. Mr. Fourstar refused to sign the form. He
was directed to register as a sex offender, and was given
until December 21, 2016 to complete registration. He refused
to do so. (Mtn to Amend, Doc. 7; Criminal Action No.
4:02cr52-DLC Petition for Warrant, Doc. 163.) Mr. Fourstar
was arrested on January 23, 2017. (Mtn to Amend, Doc. 7 at
3.) A final revocation hearing was held on February 22, 2017
before Judge Morris. During the hearing, Mr. Fourstar asked
to recuse Judge Morris. (Criminal Action No. 4:02cr52-DLC,
Minute Entry, Doc. 178.) This matter and the criminal case
were both reassigned to Judge Christensen on February 23,
2017. (Doc. 10; Criminal Action No. 4:02cr52-DLC, Order
Reassigning Case, Doc. 179.) Mr. Fourstar's revocation
Fourstar is proceeding in forma pauperis so the Court must
review his Complaint under 28 U.S.C. § 1915. Section
1915(e)(2)(B) requires 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.
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
pleaded 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, accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted).
document filed pro se is 'to be liberally construed,
' and 'a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.' " Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Cf.
Fed.R.Civ.P. 8(e) ("Pleadings must be construed as to do
Heck v. Humphrey, 512 U.S. 477 (1994), the United
States Supreme Court held that to recover damages for an
allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a plaintiff must prove that
the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a
writ of habeas corpus. Heck, 512 U.S. at 486-487;
see also Martin v. Sias, 88 F.3d 774, 775 (9th Cir.
1996) (applying Heck rule to Bivens
United States Supreme Court in Wallace v. Kato, 549
U.S. 384 (2007), held that the "Heck rule for
deferred accrual is called into play only when there exists
'a conviction or sentence that has not been . .
. invalidated, ' that is to say, an 'outstanding
criminal judgment.'" Id. at 1097-98
(quoting Heck, 512 U.S. at 486-87). The Court
specifically rejected the contention that "an action
which would impugn an anticipated future conviction
cannot be brought until that conviction occurs and is set
aside, " stating that such a proposition goes "well
beyond Heck. " Id. at 1098 (italics in
original). Thus, if a plaintiff files a false arrest claim
before he is convicted, or files any other claim related to
rulings that likely will be made in a pending or anticipated
criminal trial, it is within the power, and accords with
common practice, to stay the civil action until the criminal
case or the likelihood of a criminal case is ended.
Id. If the plaintiff is then convicted, and if the
stayed civil suit would impugn that conviction, Heck
requires dismissal; otherwise, the case may proceed.
current action, Mr. Fourstar challenges whether he was
properly arrested for failing to register as a sex offender
because it was not a requirement of his underlying conviction
and sentence. (Cmplt., Doc. 2.) The issue of whether Mr.
Fourstar's supervised release should be revoked for
failing to register as sex ...