United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JOHNSTON, UNITED STATES MAGISTRATE JUDGE
John Spaulding has filed a Complaint alleging Defendants
violated his right to privacy and his due process rights
(Doc. 2) and a Motion for Appointment of Counsel (Doc. 6).
Mr. Spaulding's allegations are barred by the applicable
statute of limitations therefore the motion for appointment
of counsel will be denied and this matter should be
STATEMENT OF THE CASE
John Spaulding is proceeding in forma pauperis and without
counsel. He is currently incarcerated at Crossroads
Correctional Center in Shelby, Montana. The named Defendants
are State of Montana Vocational Rehabilitation Counselor
Peggy Shone Kelly and Parole & Probation Officer Jason
Baxter. (Complaint, Doc. 2 at 3.)
Spaulding alleges that on September 5, 2012, Vocational
Rehabilitation Counselor Peggy Shone Kelly violated his First
Amendment right to privacy when she provided Probation and
Parole Officer Jason Baxter information regarding Mr.
Spaulding's vocational rehabilitation without his consent
or written authorization. He alleges that on September 6,
2012, Ms. Kelly sent a fax to Jason Baxter and asked him to
have Mr. Spaulding sign a release of information form in an
effort to cover her trail.
Spaulding contends that Probation and Parole Officer Jason
Baxter violated his Fourteenth Amendment due process rights
when he used this information illegally and revoked Mr.
Spaulding's conditional release which caused him to lose
his job, loss of personal property, and emotional distress.
SCREENING PURSUANT TO 28 U.S.C. §§ 1915,
Mr. Spaulding 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
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
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 ...