United States District Court, D. Montana, Great Falls Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JOHNSTON, UNITED STATES MAGISTRATE JUDGE
Donald Biederman, a prisoner proceeding without counsel has
submitted a Complaint pursuant to 42 U.S.C. § 1983, a
motion to proceed in forma pauperis, and a motion for a
90-day restraining order. (Docs. 1, 2, 10.) Read liberally,
the Complaint attempts to allege a violation under 42 U.S.C.
§ 1983, invoking subject matter jurisdiction pursuant to
28 U.S.C. § 1331, 28 U.S.C. § 1343(a).
MOTION TO PROCEED IN FORMA PAUPERIS
October 22, 2018, this Court issued an Order requiring Mr.
Biederman to show cause why his motion to proceed in forma
pauperis should not be denied pursuant to Local Rule
3.1(e)(4) because it was Mr. Biederman's third action in
which he was seeking to proceed in forma pauperis. (Doc. 6.)
Mr. Biederman complied but the Court recently recommended
Biederman v. Ms. Powell et al, 18-cv-00016-BMM-JTJ
should be dismissed. In light of that recommendation, the
Court will grant Mr. Biederman's motion to proceed in
forma pauperis in this action.
to 28 U.S.C. § 1915(b)(1), Mr. Biederman must pay the
statutory filing fee of $350.00. The initial partial filing
fee is waived and Mr. Biederman may proceed with the case.
See Bruce v. Samuels, 136 S.Ct. 627, 629
(2016)(“the initial partial filing fee may not be
exacted if the prisoner has no means to pay it, §
1915(b)(4)”). Mr. Biederman will be required to pay the
filing fee in installments and make monthly payments of 20%
of the preceding month's income credited to his prison
trust account. The percentage is set by statute and cannot be
altered. 28 U.S.C. § 1915(b)(2). Mr. Biederman must make
these monthly filing-fee payments simultaneously with the
payments required in the other cases he has filed.
Id. By separate order, the Court will direct the
facility where Mr. Biederman is held to forward payments from
his account to the Clerk of Court each time the account
balance exceeds $10.00, until the filing fee is paid in full.
SCREENING PURSUANT TO 28 U.S.C. § 1915 and § 1915A
Biederman is a prisoner proceeding in forma pauperis so 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 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).
complaint must “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 679, 681. A
complaint stops short of the line between probability and the
possibility of relief where the facts pled are merely
consistent with a defendant's liability. Id. at
the Court must determine whether the complaint states a
“plausible” claim for relief. Iqbal, 556 U.S. at
679. A claim is “plausible” if the factual
allegations, which are accepted as true, “allow[ ] the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at
678. This inquiry is “a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679
(citation omitted). If the factual allegations, which are
accepted as true, “do not permit the court to infer
more than the mere possibility of misconduct, the complaint
has alleged-but it has not ‘show[n]'-‘that
the pleader is entitled to relief.'” Id.
(citing Fed.R.Civ.P. 8(a)(2)).
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. Pardu, 551 U.S. 89, 94 (2007); cf. Fed.
Rule Civ. Proc. 8(e) (“Pleadings must be construed so
as to do justice”).
of the Federal Rules of Civil Procedure sets forth the
general rules of pleading and requires that a complaint
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The Supreme Court has explained that
Rule 8 “requires a ‘showing,' rather than a
blanket assertion, of entitlement to relief.”
Twombly, 550 U.S. at 556 n.3. The factual
allegations necessary to make that showing “must be
enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555.
Biederman provides no facts in support of his Complaint, he
only makes the conclusory allegation that:
This facility does not follow Bureau of Prison, American Bar
Association and or the American Corrections Associations
Prison Guidelines implemented by the U.S. Government or the
Department of Justice and continue on a daily basis ...