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Biederman v. Corecivic,MDOC

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

May 21, 2019

DONALD DEAN BIEDERMAN, Plaintiff,
v.
CORECIVIC, MDOC, and DOJ EMPLOYEES OF CROSSROAD CORRECTIONAL CENTER, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate Judge.

         Plaintiff 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).

         I. MOTION TO PROCEED IN FORMA PAUPERIS

         On 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 B l, 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.

         Pursuant 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.

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

         A. Standard

         Mr. 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).

         A 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 678.

         Second, 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)).

         “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. Pardu, 551 U.S. 89, 94 (2007); cf. Fed. Rule Civ. Proc. 8(e) (“Pleadings must be construed so as to do justice”).

         B. Analysis

         Rule 8 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.

         Mr. 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 ...

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