United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Timothy J. Cavan United States Magistrate Judge.
Victor Baker filed a Motion for Leave to Proceed in Forma
Pauperis (Doc. 4) and a proposed Complaint alleging
constitutional violations occurred during Lorraine Marie
Miller's probate proceedings. (Docs. 1 and 1-1 at 3-7.)
The motion to proceed in forma pauperis will be granted, but
the Complaint should be dismissed for failure to state a
claim upon which relief may be granted.
Motion To Proceed In Forma Pauperis
Baker indicates that he attempted to pay the filing fee via a
U.S. Postal Money Order, but the Court did not receive
payment. (Doc. 3.) Although Mr. Baker has tried to locate the
missing money order, to date he has not been successful.
(Doc. 6.) Mr. Baker subsequently submitted a motion to
proceed in forma pauperis. (Doc. 4.) It appears Mr. Baker has
made a sufficient showing as required by 28 U.S.C. §
1915(a). Because Mr. Baker lacks sufficient funds to
prosecute this action, the motion to proceed in forma
pauperis will be granted.
explained below, Mr. Baker's complaint should be
dismissed for failure to state a claim.
Probate Proceedings/Relief Requested
Lorraine Miller's will bequeathed firearms to George
Miller and Arden Baker. (Doc. 1 at 6.) Mr. Baker believes
both of these individuals to be “prohibited
persons” under federal law. He alleges Miller is
incompetent, and that Arden Baker is a felon who was
dishonorably discharged from the military. Id.; see
also (Doc. 1-1 at 5-7.) Baker claims Indian Probate Judge
Albert C. Jones has violated 18 U.S.C. §§ 922(d),
(g), and (n); Probate Codes §§ 4.202-4.308; and 43
CFR Subtitle A. Id; see also (Doc. 1-1 at 5.) According to
Mr. Baker, because the will is illegal, Probate Judge Albert
C. Jones has acted unlawfully in enforcing the will.
Id.; see also (Doc. 1-1 at 3.)
Baker explains he has suffered mental stress as a result of
these actions. It was apparently known that he contested Ms.
Miller's will, and he now believes George Miller and/or
Arden Baker may attempt to retaliate against him. Mr.
Baker's alleges his fears are increased due to the
reportedly unlawful award of firearms to these individuals.
Id. at 7. Mr. Baker's states his eating and
sleeping habits have been affected due to his fear.
Baker asks this Court to: (1) prevent George Miller and Arden
Baker from obtaining weapons via the unlawful will; (2)
declare Lorraine Miller's will to be illegal; (3) inform
and discipline Judge Jones for his unlawful acts; (4) provide
compensation to him for denial of funds from Lorraine
Miller's will and additional lost income in the amount of
$200, 000, and (5) award punitive damages to him in the
amount of $200, 000 for the mental stress flowing from the
purported federal violations. Id.
Screening Pursuant to 28 U.S.C. §1915(e)(2)
complaint filed by any person proceeding in forma pauperis
pursuant to 28 U.S.C. § 1915(a) is subject to a
mandatory and sua sponte review and dismissal by the Court to
the extent the claims are frivolous, malicious, fail to state
claim upon which relief may be granted, or seek monetary
relief from a defendant immune from such relief. 28 U.S.C.
§ 1915(e)(2); Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000)(stating 28 U.S.C. §
1915(e) “applies to all in forma pauperis
names Indian Probate Judge Jones, acting in his official
capacity, as the sole Defendant in this matter. See, (Doc. 1
at 4.) In certain circumstances, federal law provides for the
Secretary of the Interior to conduct the probate process of
the estate of an Indian person who disposes by will of
allotments held under trust. Under that process, the
Secretary is required to approve the validity of a will. 25
U.S.C. § 373.
details of the probate procedures are set forth in federal
regulations promulgated under authority of several federal
statues, including 25 U.S.C. § 373. The basic steps of
the process (as described from the ...