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Fourstar v. Clark

United States District Court, D. Montana, Great Falls Division

December 6, 2018

VICTOR CHARLES FOURSTAR, JR., Plaintiff,
v.
MELVIN CLARK, etal., Defendants. VICTOR CHARLES FOURSTAR, JR., Plaintiff,
v.
MICHAEL ELIASON, et al., Defendants.

          ORDER

          Susan P. Watters, United States District Judge.

         I. Background

         These two actions were filed in November and December 2016. They were consolidated because they involve very similar allegations. They were stayed pending resolution of Plaintiff Fourstar's appeals challenging revocation of his federal supervised release.

         Fourstar contends that his civil rights are violated by ongoing collateral consequences of his 2003 federal conviction for aggravated sexual abuse and his 1992 Montana conviction for sexual intercourse without consent. Fourstar discharged the state sentence on December 13, 1997, and is no longer in custody by reason of that conviction. See, e.g., Presentence Report ¶ 31, United States v. Fourstar, No. 4:02-CR-52-SEH (D. Mont, revised Feb. 10, 2003); Order at 2, State v. Fourstar, No. DA 13-0658 (Mont. Oct. 30, 2013); Order at 1-2, Fourstar v. Zemyan, No. DA 12-0440 (Mont. Aug. 14, 2012); Maleng v. Cook, 490 U.S. 488, 491-92 (1989) (per curiam).

         Fourstar remains in custody by reason of his federal conviction.[1] He pursued direct appeal in 2003 and filed motions under 28 U.S.C. § 2255 and/or common-law petitions seeking collateral review, but he has yet to invalidate the federal conviction or sentence. See, e.g., United States v. Fourstar, 87 Fed.Appx. 62, 63-65, 2004 WL 193245, No. 03-30121 (9th Cir. Jan. 30, 2004); Order (Doc. 131), United States v. Fourstar, No. 4:02-CR-52-SEH (D. Mont. Dec. 20, 2005); Order Denying Certificate of Appealability, United States v. Fourstar, No. 06-35273 (9th Cir. July 25, 2006).

         Fourstar is currently serving a ten-month prison term following revocation of his supervised release. After he completes the prison term, he will serve 39 months on supervised release. See Revocation Judgment (Doc. 260) at 3-4, Fourstar, No. 4:02-CR-52-DLC (D. Mont. Oct. 18, 2018).

         II. Stay and Motion to Amend

         Since these actions were filed in November and December 2016, Fourstar's supervised release has been revoked three times. These actions were stayed on March 6, 2017, pending resolution of the first two revocation proceedings and appeals. The appeals were concluded on July 12, 2018. But, in August 2018, a third revocation proceeding began and, on November 1, 2018, Fourstar filed a notice of appeal against the third successive revocation judgment. See Notice of Appeal (Doc. 270), Fourstar, No. 4:02-CR-52-DLC.

         Fourstar moves to lift the stay. See Mot. to Lift Stay (16-113 Doc. 34). The Court believes it can reach an appropriate disposition of his claims without awaiting disposition of Fourstar's most recent revocation appeal. The stay will be lifted.

         On March 6, 2017, the Court denied a motion to amend the complaint "subject to renewal after the resolution of criminal proceedings." Order (16-126 Doc. 11); see also Mot. to Am. Compl. (16-126 Doc. 7). The motion to amend is deemed renewed and is granted. It will be addressed along with Fourstar's Complaint in 16-126.

         III. Deficiencies in Complaints

         Fourstar was a prisoner when he filed Eliason, the first of these two actions, but not when he filed Clark, the second. Compare Compl. (16-113 Doc. 3) at 2 ¶ I with Compl. (16-126 Doc. 2) at 1; Mot. to Proceed In Forma Pauperis (16-126 Doc. 1) at 6 ¶ 11. In both actions, he is proceeding in forma pauperis. The Court must review his complaint to determine whether it fails to state a claim on which relief may be granted. See 28 U.S.C. § l9l5(e)(2)(B)(ii).

         Fourstar is also self-represented. "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. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks and citation omitted). Courts must briefly explain deficiencies that may be cured by amendment, see Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012), but if a claim cannot be cured by amendment, "the court shall dismiss" it, 28 U.S.C. § 1915(e)(2) (emphasis added).

         A. Validity of Prior Convictions

         A civil action is not an appropriate vehicle for challenging the validity of a conviction or sentence. See Edwards v. Balisok, 520 U.S. 641, 645, 649 (1997); Heck v. Humphrey, 512 U.S. 477, 486 (1994).

         The complaint in Eliason alleges that various defendants failed to disclose exculpatory evidence between 1992 and 1997. See Compl. (16-113 Doc. 3) at 13, 15. The motion to amend in Clark alleges that Fourstar was deprived of a right to present evidence in mitigation of his state sentence. See Mot. to Am. Compl. (16-127 Doc. 7) at 5. If material exculpatory evidence was withheld, or if Fourstar was unable to present material mitigating evidence, Fourstar's conviction and/or sentence is invalid, see Giglio v. United States, 405 U.S. 150, 153-55 (1972), but that would mean he may not proceed with this action. On the other hand, if evidence was actually presented, or was not withheld, or was not material, Fourstar suffered no constitutional injury. Therefore, whether these allegations are true or false, they are not cognizable in this action.

         Fourstar also alleges that he was unlawfully detained from September 1, 1992, to December 13, 1997-the duration of his state sentence for sexual intercourse without consent. See Compl. (16-113 Doc. 3) at 13 & ΒΆΒΆ 2, 3. He could be entitled to damages for this detention only if ...


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