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Steven David of aver v. Julian

United States District Court, D. Montana, Missoula Division

July 20, 2018

STEVEN DAVID OF AVER, Plaintiff,
v.
JUSTIN JULIAN, et al., Defendants.

          ORDER, AND FINDINGS AND RECOMMENDATION

          Jeremiah C. Lynch, United States Magistrate Judge

         I. In Forma Pauperis Application

         Plaintiff Steven Aver, appearing pro se, filed an application requesting leave to proceed in forma pauperis. He submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Because it appears he lacks sufficient funds to prosecute this action IT IS HEREBY ORDERED that Aver's application is GRANTED. This action may proceed without prepayment of the filing fee, and the Clerk of Court is directed to file Aver's lodged Complaint as of the filing date of his request to proceed in forma pauperis.

         The federal statute under which leave to proceed in forma pauperis is permitted - 28 U.S.C. § 1915 - also requires the Court to conduct a preliminary screening of the allegations set forth in the litigant's pleading. The applicable provisions of section 1915(e)(2) state as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-
(A) the allegation of poverty is untrue; or (B) the action or appeal-
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2).

         The Court will review Aver's pleading to consider whether this action can survive dismissal under the provisions of section 1915(e)(2), or any other provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9th Cir. 2005).

         II. Background

         On May 21, 2018, Idaho State Police Trooper Brady Walker effected a traffic stop on Aver while Aver was driving in Idaho. Trooper Walker issued Aver two motor vehicle or traffic citations - one charges Aver with failing to wear a seatbelt, and the other charges him with failing to obtain a proper driver's license in Idaho. The two citations are presently being prosecuted in the District Court of the 1st Judicial District of the State of Idaho, in the County of Boundary.

         Aver commenced this civil action challenging the legal authority of the Idaho officials and employees who are responsible for enforcing Idaho law and prosecuting the two citations issued to Aver. Specifically, the individuals that Aver identifies as Defendants in this action are the judge who is presiding over his traffic citations, Trooper Walker, the district court employees, the Idaho prosecuting attorneys, and the Boundary County Sheriff.

         The gravamen of Aver's various requests for relief asserts that the State of Idaho lacks legal authority to prosecute him for the two citations that Trooper Walker issued to him. He requests this court issue declaratory relief establishing that the Idaho laws on which the citations are based are invalid, and that the Defendants have no lawful authority to prosecute him. He also requests injunctive ...


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