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Ellison v. Yellowstone County

United States District Court, D. Montana, Billings Division

November 8, 2018

LIONEL SCOTT ELLISON, Plaintiff,
v.
YELLOWSTONE COUNTY, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JOHN JOHNSTON, UNITED STATES MAGISTRATE

         Plaintiff Lionel Ellison filed a Complaint and an Amended Complaint alleging violations of his constitutional rights during the course of his 2015 criminal trial. (Docs. 2, 15.) Mr. Ellison's allegations arising from his arrest and criminal prosecution and Defendants Yellowstone County, the City of Billings, Scott Twito, Julie Mees, Brett Linneweber, Sheriff Mike Linder, Detective Frank Fritz, Officer B. Richardson, Michael Kakuk, Danny Tenenbaum, Chad Wright, Captain Bofto, and Lt. Metzer will be recommended for dismissal. Defendants Washington, Groslock, Johnson, and Peters will be required to respond to Mr. Ellison's claims of denial of food, failure to protect, and retaliation.

         I. STATEMENT OF THE CASE

         A. Parties

         Mr. Ellison is proceeding in forma pauperis and without counsel. He is currently incarcerated at Montana State Prison but his allegations arose while he was in Yellowstone County, Montana. The named Defendants in Mr. Ellison's original Complaint are Yellowstone County, the City of Billings, Scott Twito, Julie Mees, Brett Linneweber, Sheriff Mike Linder, Detective Frank Fritz, Detective B. Richardson, and attorneys Michael Kakuk, Danny Tenenbaum, and Chad Wright. (Complaint, Doc. 2 at 2-5.) Mr. Ellison filed an Amended Complaint on June 28, 2018 naming the following officers from the Yellowstone County Detention Facility (YCDF) as Defendants: Officer Washington, Officer Groslock, Officer Johnson, Sgt. Peters, Lt. Metzer, and Captain Bofto. (Amended Complaint, Doc. 15 at 2-4.)

         B. Background of Criminal Proceedings

         On October 16, 2018, the Montana Supreme Court decided Mr. Ellison's criminal appeal regarding the criminal proceedings at issue in this case. The Montana Supreme Court provided the following factual background regarding Mr. Ellison's criminal charges:

On March 13, 2013, Ellison staged a crime scene in which he attempted to implicate Yellowstone County Detective Frank Fritz (Fritz), by tying the doors shut to the trailer home he shared with his parents, starting a small fire outside, and placing a knife on the ground outside the home with “Fritz” scribbled on it. The Fire Department was summoned and, during the investigation, Ellison reported he saw flames from his bedroom window but was unable to escape the house because the doors had been tied shut from the outside. Ellison and his parents claimed they saw someone who looked like Fritz or his “twin” in their yard on the night of the fire, and that the same man had been at their home several times before. They later made statements in the proceeding that Fritz was responsible for starting the fire at the home. At trial, Fritz and other officers testified that Fritz was investigating another crime scene elsewhere in Billings in the hours before, during, and after the fire at Ellison's home.
After testing, the Montana State Crime Lab determined the DNA found on the ropes tied to the doors of Ellison's home matched Ellison's DNA. Ellison was arrested on July 31, 2014. Later, soon after Ellison was released on bond, Ellison made phone calls to two employers in which he falsely identified himself as Fritz and maintained that they should not hire Ellison.
Ellison was charged with one count of arson, two counts of tampering with or fabricating physical evidence, and one count of impersonation of a public servant.

State v. Ellison, ___ P.3d ___, 2018 WL4999989 (Mont. S.Ct. October 16, 2018). After a three-day trial, Mr. Ellison was acquitted of arson and convicted of two counts of tampering with or fabricating physical evidence, and one count of impersonation of a public servant. Id. The Montana Supreme Court reversed Mr. Ellison's conviction for the second count of tampering with or fabricating evidence but affirmed his convictions on all other charges. Id.

         C. Allegations

         Mr. Ellison alleges violations of the following constitutional rights: (1) his Fourth Amendment right to only be arrested based upon probable cause; (2) his Fifth Amendment right to due process and right against double jeopardy; (3) his Sixth Amendment right to competent assistance of counsel; (4) his Eighth Amendment right to adequate food and protection from other inmates; and (5) his Fourteenth Amendment rights to due process and equal protection were violated when the prosecution withheld exculpatory and impeaching evidence, the trial judge was biased, Yellowstone County detectives committed violent crimes against him and he was wrongfully convicted, and appellate counsel refused to adequately represent him in a timely and correct manner. (Complaint, Doc. 2 at 20.)

         II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915, 1915A

         A. Standard

         Because Mr. Ellison 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.

         A 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).

         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). This rule 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).

         A complaint's allegations must cross “the line from conceivable to plausible.” Iqbal, 556 U.S. at 680. 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”).

         B. Analysis

         1. Claims barred by Statute of Limitations-Fourth Amendment

         Mr. Ellison brings claims under the Fourth Amendment alleging the State would not have had probable cause to arrest him if they had not suppressed audio statements, medical records, and previous State investigations. (Complaint, Doc. 2 at 19.) To the extent Mr. Ellison is alleging false arrest, his claims should be dismissed for failure to file within the applicable statute of limitations. The United States Supreme Court in Wilson v. Garcia, 471 U.S. 261 (1985) determined the applicable statute of limitations for claims filed pursuant to 42 U.S.C. § 1983 is the state statute of limitations governing personal injury actions. In Montana, that period is three years after the action accrues. Mont. Code. Ann. § 27-2-204 (1).

         Mr. Ellison's Complaint is dated March 15, 2018, therefore all claims accruing prior to March 15, 2015 are barred by the applicable statute of limitations. Mr. Ellison was arrested on July 31, 2014. Thus, any Fourth Amendment claims for false arrest are barred by the applicable statute of limitations and should be dismissed. See Wallace v. Kato, 549 U.S. 384, 393 (“the statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.”).

         This is not a defect which could be cured with further amendment.

         2. Claims regarding Criminal Trial-5th, 6th & 14th Amendments

         Mr. Ellison raises a number of claims regarding his criminal proceedings under the Fifth, Sixth, and Fourteenth Amendments claiming that he was denied due process, his double jeopardy rights were violated, he was denied competent assistance of counsel, and was denied equal protection of the laws. (Complaint, Doc. 2 at 19-20.)

         In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court held that “in order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, ” or otherwise declared invalid, called into question by the issuance of a habeas writ, or expunged. Id. at 486-487.

[W]hen a state prisoner seeks damages in a section 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate ...

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