United States District Court, D. Montana, Great Falls Division
BRIAN D. SMITH, Petitioner,
TIMOTHY FOX, ATTORNEY GENERAL, STATE OF MONTANA; HON. MIKE MCGRATH, CHIEF JUSTICE, the SUPREME COURT STATE OF MONTANA, et. al., Respondents.
FINDINGS AND RECOMMENDATIONS OF UNITED
Johnston United States Magistrate Judge.
Brain D. Smith, a state prisoner proceeding pro se,
see (Doc. 5), filed a Complaint alleging
irregularities in his state criminal proceedings. (Doc. 2).
The Complaint fails to state a claim upon which relief may be
granted and should be dismissed.
Smith is a prisoner proceeding in forma pauperis the Court
must review his Complaint under 28 U.S.C. §§ 1915,
1915A. Sections l9l5A(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." Neitzkev. 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
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 justice").
Smith, along with Maurice Archer, John Chambers, Keith Doyle,
and Charles Clary, joined in filing the complaint lodged in
this matter and sought certification to proceed as a class.
See Archer v. Fox et. al., CV-17-108-GF, (Docs. 6,
7, 8). The Court denied the Plaintiffs' motion for class
certification and ordered that the claims be severed. See
generally Archer v. Fox et al., CV-17-108-GF (Doc. 15);
see also (Doc. 3). Accordingly, separate cases were
opened for each of the named plaintiffs.
2012, Smith was convicted and sentenced in Montana's
Fourth Judicial District, Missoula County, for Aggravated
Assault in Cause No. DC 2011-161. (Doc. 2 at
Smith has previously challenged his 2012 conviction in this
Court via a federal habeas corpus petitions under 28 U.S.C.
§ 2254. See Smith v. Frink, No. DV
24-83-DLC-JCL. There, Smith did not raise the exact argument
he advances in the instant complaint, but he similarly
challenged the state charging procedure. Specifically, he
alleged the trial court lost jurisdiction over his case when
the district judge, who made a finding of probable cause to
support the filing of the Information, presided over
subsequent stages of the criminal proceedings. Smith argued
this deprived him of an impartial judge, due process of law,
a fair trial, and effective assistance of counsel. This Court
found Smith's claim to be frivolous and that the state
practice of prosecution by information is consistent with the
federal guarantees of due process. Smith v. Frink,
No. DV 24-83-DLC-JCL, Mag. Find, at 2 (Mar. 31, 2014),
citing Hurtado v. California, 110 U.S. 516, 538
(1884). Smith's petition was ultimately denied on its
merits. Smith v. Frink, No. DV 24-83-DLC-JCL (D.
Mont. Judgement entered May 19, 2014).
instant matter Smith complains his state charges were brought
"under indictment by information" and that he was
deprived of either a "constitutionally mandated
preliminary examination before a magistrate" or a
"non-perfunctory adversarial hearing before the district
judge prior to being indicted by information on judicial
order to file the information as the instrument of
indictment." (Doc. 2 at 2). Smith contends that other
similarly situated individuals, too numerous to number, have
had their due process rights violated by the purported faulty
charging manner utilized by the State of Montana and are also
entitled to justice. Id. at 4.
asserts Attorney General Timothy Fox, as the chief law
enforcement officer in the state, has been made aware of the
due process violations that have occurred as a result of the
unconstitutional charging practice, by virtue of numerous
appeals, post conviction matters, and state habeas petitions
that have been filed. Id. at 4-5. Smith complains