Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Fox

United States District Court, D. Montana, Great Falls Division

May 2, 2018

BRIAN D. SMITH, Petitioner,


          John Johnston United States Magistrate Judge.

         Plaintiff 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.

         I. Initial Screening

         Because 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.

         A 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).

         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").

         II. Analysis

         A. Factual Background

         Plaintiff 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.[1]

         In 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 4).[2] 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).

         In the 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.

         Smith 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.