United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JOHNSTON UNITED STATES MAGISTRATE JUDGE
and Findings and Recommendations of United States Magistrate
Judge Plaintiff Richard Christenson, a prisoner proceeding
without counsel, filed a motion to proceed in forma pauperis
(Doc. 1) and proposed complaint (Doc. 2). The motion to
proceed in forma pauperis will be granted. The Complaint,
however, fails to state a federal claim for relief and should
Motion to Proceed in Forma Pauperis
Christenson's motion to proceed in forma pauperis is
sufficient to make the showing required by 28 U.S.C.
§1915(a). (Doc. 1.) The request to proceed in forma
pauperis will be granted. 28 U.S.C. § 1915(a). Because
he is incarcerated, Mr. Christenson must pay the statutory
filing fee of $350.00. 28 U.S.C. § 1915(b)(1). Mr.
Christenson submitted an account statement showing average
monthly deposits of $468.83 over the six-month period
immediately preceding the filing of his Complaint (August 12,
2017 - February 12, 2018). (Doc. 1-1.) Therefore, an initial
partial filing fee of $93.77 will be assessed by this Order.
28 U.S.C. § 1915(b)(1)(B) (allowing an assessment in the
amount of 20% of the prisoner's average monthly
deposits). A separate order will direct the agency having
custody of Mr. Christenson to collect the initial partial
filing fee from his prison account and forward it to the
Clerk of Court.
Christenson will be required to pay the remainder of the fee
in installments by making monthly payments of 20% of the
preceding month's income credited to his prison trust
account. The percentage is set by statute and cannot be
altered. 28 U.S.C. § 1915(b)(2). Mr. Christenson must
make these monthly payments simultaneously with the payments
required in any other cases he has filed. Bruce v.
Samuels, ___U.S. ___, 136 S.Ct. 627, 629 (2016). By
separate order, the Court will direct the facility where Mr.
Christenson is held to forward payments from Mr.
Christenson's 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).
Screening Pursuant to 28 U.S.C. § 1915 and 28 U.S.C.
Christenson is a prisoner proceeding in forma pauperis so the
Court must review his Complaint under 28 U.S.C. § 1915
and § 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.
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 case is
malicious if it was filed with the intention or desire to
harm another.” Andrews v. King, 398 F.3d 1113,
1121 (9th Cir. 2005). 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). “A 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. Rule Civ. Proc. 8(e) (“Pleadings must
be construed so as to do justice”).
Christenson is bringing claims against his public defender
Mariah Eastman. Mr. Christenson argues that Ms. Eastman
failed to obtain his out of state mental health records while
his criminal case was pending and refused to send him the
state's discovery showing what exculpatory evidence the
state proposed to use. He claims his Fifth, Sixth, Eighth,
and Fourteenth Amendment rights have been violated.
(Complaint, Doc. 2.)
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the
Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person
acting under color of state law. West v. Atkins, 487
U.S. 42, 48 (1988). In Polk County v. Dodson, 454
U.S. 312 (1981), the United States Supreme Court held that
public defenders do not act “under color of state
law” when performing traditional lawyer duties.
Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir.
2003)(en banc). Consequently, Mr. Christenson cannot state a
federal claim against Ms. Eastman because she is not a state
addition, to the extent that Mr. Christenson seeks to
challenge his criminal conviction, his claims are barred by
the doctrine set forth in Heck v. Humphrey, 512 U.S.
477, 486-87 (1994). In Heck, the United States
Supreme Court held that “in order 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 § 1983
plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, ” or otherwise declared
invalid, called into question by the issuance of a habeas
writ, or expunged. Id.
[W]hen a state prisoner seeks damages in a section 1983 suit,
the district court must consider whether a judgment in favor
of the plaintiff would necessarily imply the invalidity of
his conviction or sentence; if it would, the complaint must
be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated. But if
the district court determines that the plaintiff's
action, even if successful, will not demonstrate ...