United States District Court, D. Montana, Butte Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Jeremiah C. Lynch United States Magistrate Judge.
Benny Stewart filed a Motion for Leave to Proceed in Forma
Pauperis (Doc. 2) and a proposed Complaint alleging various
irregularities in his state criminal proceedings. (Doc. 1).
The motion to proceed in forma pauperis will be granted but
the Complaint fails to state a claim upon which relief may be
granted and should be dismissed.
Motion To Proceed In Forma Pauperis
filed his motion to proceed in forma pauperis and submitted
an account statement sufficient to make the showing required
by 28 U.S.C. §1915(a). (Doc. 2). The request to proceed
in forma pauperis will be granted.
he is incarcerated, Stewart must pay the statutory filing fee
of $350.00. 28 U.S.C. § 1915(b)(1). Stewart submitted an
account statement showing an inability to pay that fee;
therefore, the initial partial filing fee is waived, and he
may proceed with the case. See Bruce v. Samuels, 136
S.Ct. 627, 629 (2016)("the initial partial filing fee
may not be exacted if the prisoner has no means to pay it,
§ 1915(b)(4)"). Stewart will be required to pay the
fee in installments and make 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). Stewart must make these
monthly filing-fee payments simultaneously with the payments
required in any other cases he has filed. Id. By
separate order, the Court will direct the facility where
Stewart is held 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. §
is a prisoner proceeding in forma pauperis so the Court must
review his Complaint under 28 U.S.C. §§ 1915,
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 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).
of the Federal Rules of Civil Procedure provides that a
complaint "that states a claim for relief must contain
... a short and plain statement of the claim showing that the
[plaintiff] is entitled to relief." Fed.R.Civ.P.
8(a)(2). In order to satisfy the requirements in Rule 8 a
complaint's allegations must cross "the line from
conceivable to plausible." Ashcroft v. Iqbal,
556 U.S. 662, 680 (2009). There is a two-step procedure to
determine whether a complaint's allegations cross that
line. See Twombly, 550 U.S. at 556; Iqbal,
556 U.S. 662. First, the Court must identify "the
allegations in the complaint that are not entitled to the
assumption of truth." Iqbal, 556 U.S. at 679,
680. Factual allegations are not entitled to the assumption
of truth if they are "merely consistent with liability,
" or "amount to nothing more than a 'formulaic
recitation of the elements' of a constitutional"
claim. Id. at 679, 681. A complaint stops short of
the line between probability and the possibility of relief
where the facts pled are merely consistent with a
defendant's liability. Id. at 678.
the Court must determine whether the complaint states a
"plausible" claim for relief. Iqbal, 556
U.S. at 679. A claim is "plausible" if the factual
allegations, which are accepted as true, "allow[ ] the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id. at 678.
This inquiry is "a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense." Id. at 679 (citation omitted).
If the factual allegations, which are accepted as true,
"do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it
has not "show[n]"-"that the pleader is
entitled to relief." Id. (citing Fed.R.Civ.P.
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. Pardu, 551 U.S. 89,
94 (2007); cf. Fed. Rule Civ. Proc. 8(e)
("Pleadings must be construed so as to do
a jury trial in Montana's Second Judicial District Court,
Butte-Silverbow County, Stewart was convicted of one count of
Incest. Stewart filed a direct appeal arguing: (1) he was
entitled to a new trial due to law enforcement's
warrantless monitoring and recording of telephone calls
between Stewart and his daughter; and, 2) the trial court
abused its discretion in admitting a series of sexually
oriented photographs Stewart took of his daughter. The