United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.
Anthony Scott, a pre-trial detainee proceeding without
counsel, filed a Motion to Proceed in Forma Pauperis (Doc. 4)
and two proposed Complaints alleging Defendants falsely
arrested him on January 17, 2018. (Docs. 1, 5.) The request
to proceed in forma pauperis will be granted. The Court
should abstain from deciding Mr. Scott's claims
challenging his arrest and the pending criminal charges
against him. Defendants will be required to respond to Mr.
Scott's claims of excessive use of force.
MOTION TO PROCEED IN FORMA PAUPERIS
Scott's motion to proceed in forma pauperis is sufficient
to make the showing required by 28 U.S.C. §1915(a) and
the request to proceed in forma pauperis will be granted.
Because he is incarcerated, Mr. Scott must pay the statutory
filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The
initial partial filing fee is waived, and Mr. Scott 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)”). He will, however, 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). Mr. Scott 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 Mr. Scott is held to forward payments from Mr.
Scott's 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).
SCREENING PURSUANT TO 28 U.S.C. §§ 1915, 1915A
Mr. Scott is a prisoner proceeding in forma pauperis, the
Court must screen his Complaint under 28 U.S.C. § 1915
and 28 U.S.C. § 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). Rule 8(a)(2)
requires a complaint to “contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations 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).
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. 8(a)(2)).
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”).
STATEMENT OF THE CASE
Scott has checked the box for “official capacity”
under each of the named Defendants. Suing an individual in
their “official capacity” is simply another way
to plead a claim against the entity which they represent.
Kentucky v. Graham, 473 U.S. 159, 165 (1985). Such a
suit “is not a suit against the official personally,
for the real party in interest is the entity.” Graham,
473 U.S. at 166. “There is no longer a need to bring
official-capacity actions against local government officials,
for under [Monell v. Dep't of Social Servs., 436
U.S. 658 (1978) ], local government units can be sued
directly for damages and injunctive or declaratory
relief.”. Graham, 473 U.S. at 167 n.14.
Scott has not raised any claims against the City of Billings,
the Court will assume for purposes of this Order that Mr.
Scott intended to name the individuals as defendants in their
personal capacity. Should he wish to bring a claim against
the City of Billings, he must amend his Complaint. The City
of Billings will be recommended for dismissal
Scott alleges that on January 17, 2018, the Billings Police
Department conducted an investigation for drugs at his place
of employment. The officers searched Mr. Scott's car and
found a ziplock bag containing a white substance which field
tested positive for cocaine. Mr. Scott then gave his consent
for the officers to search his home where additional drugs
were found. Mr. Scott alleges that he was handcuffed while
the officers searched his home and the handcuffs cut off his
contends that on April 10, 2018, a chemical analysis report
shows that no controlled substance was identified in the
ziplock bag recovered from his vehicle. He claims Officers
Steve Hallam, Seth Froster, Kenneth Tuss, and David Firebaugh
were all present on the scene and their reports stated
Scott lists his claims as false arrest, defamation of
character, cruel and unusual punishment, job loss, excessive
force, pain and suffering, home invasion, property damages,
and false imprisonment.
Court must abstain from considering Mr. Scott's claims
challenging his ongoing criminal proceedings but his claims