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Fourstar v. Montana Governor Steve Bullock

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

December 6, 2018

VICTOR CHARLES FOURSTAR, JR., Plaintiff,
v.
MONTANA GOVERNOR STEVE BULLOCK, et al, Defendants.

          ORDER

          SUSAN P. WATTERS UNITED STATES DISTRICT JUDGE

         I. Screening

         Plaintiff Fourstar filed a complaint in this matter on February 13, 2018. At that time, he was a prisoner. See Compl. (Doc. 2) at 5 ¶ I. He is also proceeding in forma pauperis. See Mot. to Proceed In Forma Pauperis (Doc. 1); Order (Doc. 17). The Court must review the complaint to determine whether it fails to state a claim on which relief may be granted. See 28 U.S.C. § § 1915(e)(2)(B)(ii), 1915 A(a).

         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).

         II. Deficiencies in Complaint

         The complaint names over 33 defendants and scatters allegations over a wide variety of situations. The Court will address its claims seriatim.

         A. Funding Cut to College Programs

         Fourstar claims Governor Bullock and others "discriminatorily targeted non-Caucasian Italian-American Studies course at College of Missoula (consolidated with Paralegal Studies Program and Culinary Arts Program) for termination through a cut in ... funding ... without authority." As a result, he says, he is not able to attend the Paralegal Studies Program, enjoy vocational rehabilitation, or enjoy his full share of the Cobell settlement. See Compl. (Doc. 2) at 13 ¶ III(A)(4), 14¶ IV, 16.

         There was no "Italian-American Paralegal Studies Program." Fourstar links the two because funding for each was cut. This does not support an inference that a defendant engaged in invidious ethnic discrimination in violation of federal law. Further, a prospective student's interest in attending a particular degree program does not confer "a legitimate claim of entitlement" to the continuation of that program, see Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972), so Fourstar cannot claim he was deprived of a property interest without due process.

         A complaint's allegations must "permit the court to infer more than the mere possibility of misconduct." Ashcroftv. Iqbal, 556 U.S. 662, 679 (2009) (emphasis added). These allegations do not permit an inference of any misconduct. They fail to state a claim on which relief may be granted.

         B. Claims by Other Persons

         Fourstar purports to make claims on behalf of two other persons. See Compl. at 23-26, 32-36. He is not admitted to the Bar of this Court and is not an attorney at law. He cannot litigate a claim for another person. See 28 U.S.C. § 1654; D. Mont. L.R. 83.8(a) (Dec. 1, 2017). These allegations fail to state a claim on which relief may be granted.

         C. Conditions of Confinement Claims

         The following allegations arise from two separate, brief periods of detention on two serial petitions to revoke Fourstar5 s federal supervised release. Pending hearings and disposition, he was held at Crossroads Correctional Center in May 2017 and again in November 2017. He asserts violations of his rights under the "1st, 5th, 8th, 10th, and 14th Amendments of United States and Montana Constitutions." See Compl. at 17.

         1. Medical and Dental Needs

         Fourstar alleges that Corrections Corporation of America and other individual defendants are liable for failing to meet his medical needs for surgery on both knees; knee braces and a cane; psychiatric counseling; a Wellbutrin prescription; and tuberculosis screening and treatment for his "TB exposure & symptoms." He also contends defendants failed to provide care "for Fourstar's severe dental needs and pain." Compl. at 17-20.

         As persons responsible for Fourstar's custody under the authority of a federal warrant and a federal judge's order of detention, all defendants were acting under color of federal law. If Fourstar has a cause of action at all, it arises under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the federal sometime-analogue to 42 U.S.C. § 1983. But unlike the alleged conduct in violation of the Fourth Amendment in Bivens, the defendants' alleged conduct here is "of a kind that typically falls within the scope of traditional state tort law." Minecci v. Pollard, 565 U.S. 118, 131 (2012). Bivens does not provide a remedy. See Id. at 125-26; Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70-73 (2001); see also Ziglar v. Abbasi, ___ U.S.___, 137 S.Ct. 1843, 1857-58 (2017). These allegations fail to state a claim on which relief may be granted.

         2. Right to Consult with Counsel

         Fourstar alleges Defendant Bush failed to provide "confidential attorney- client communications/phone calls to his attorney," Dwight Schulte, resulting in denial of his right to a full and fair defense. Compl. at 20. The Court will ...


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