United States District Court, D. Montana, Great Falls Division
T. Johnston United States Magistrate Judge
and Findings and Recommendations of United States Magistrate
Judge This matter comes before the Court on Plaintiff Marcus
Drake's Complaint (Doc. 2) and motion for appointment of
counsel (Doc. 14.) The Complaint fails to state a claim upon
which relief may be granted and therefore this matter should
be dismissed. As such, the motion for appointment of counsel
will be denied.
STATEMENT OF THE CASE
Marcus Drake is a prisoner proceeding without counsel. He is
currently incarcerated in Kansas but his claims arose during
his incarceration in the Great Falls Regional Prison.
named Defendants are the Great Falls Regional Prison, Unit
Manager Harris, Commander Dan O'Fallon, Detention Officer
Lenahan, and DOC Monitor Hatton. (Complaint, Doc. 2 at 2-3.)
Statement of Claims
Drake alleges that on September 21, 2017 he was handcuffed to
a bench in the booking area of the Great Falls Regional
Prison waiting for his parole hearing. When he was called for
the hearing, Unit Manager Harris and Officer Lenahan
approached him to remove the handcuffs. He alleges that under
the pretext of trying to remove faulty handcuffs, Officer
Lenahan brushed his hand and forearm across Mr. Drake's
genitals. When Mr. Drake tried to shift away, Officer Lenaham
grabbed his private area and grinned at him in a menacing
way. He alleges Mr. Harris and DOC Monitor Hatton witnessed
the incident. (Complaint, Doc. 2 at 3.)
injury section of the Complaint, Mr. Drake alleges he now
suffers excessive and constant fear, undue stress, fear of
authority, extreme anguish, and is socially withdrawn.
(Complaint, Doc. 2 at 4.)
SCREENING PURSUANT TO 28 U.S.C. §§ 1915, 1915A
Mr. Drake is a prisoner proceeding in forma pauperis, 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 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).
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). This rule requires a complaint to “contain
sufficient factual matter, accepted as true, to state a claim