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Spaulding v. Kelly

United States District Court, D. Montana, Helena Division

November 14, 2018

JOHN EDWARD SPAULDING, Plaintiff,
v.
THE STATE OF MONTANA VOCATIONAL REHABILITATION COUNSELOR PEGGY SHONE KELLY and PAROLE & PROBATION OFFICER JASON BAXTER, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JOHN JOHNSTON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 dismissed.

         I. STATEMENT OF THE CASE

         A. Parties

         Plaintiff 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.)

         B. Allegations

         Mr. 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.

         Mr. 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.

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

         A. Standard

         Because 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.

         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 ...


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