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Stewart v. Fox

United States District Court, D. Montana, Butte Division

March 16, 2018

BENNY STEWART, Petitioner,
v.
TIM FOX, ATTORNEY GENERAL OF THE STATE OF MONTANA; STATE OF MONTANA, Respondents.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Jeremiah C. Lynch United States Magistrate Judge.

         Plaintiff 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.

         I. Motion To Proceed In Forma Pauperis

         Stewart 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.

         Because 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. § 1915(b)(2).

         II. Initial Screening

         Stewart 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.

         A 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 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.

         Second, 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. 8(a)(2)).

         "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. Pardu, 551 U.S. 89, 94 (2007); cf. Fed. Rule Civ. Proc. 8(e) ("Pleadings must be construed so as to do justice").

         III. Analysis

         A. Factual Background

         Following 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 ...


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