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Cox v. Boyd

United States District Court, D. Montana, Billings Division

June 13, 2019

JOHNNY RAY COX, Plaintiff,
v.
TERRY BOYD, BILLINGS PROBATION & PAROLE, and YELLOWSTONE COUNTY, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Timothy J. Cavan United States Magistrate Judge

         Plaintiff Johnny Ray Cox, a prisoner proceeding without counsel, filed a motion to proceed in forma pauperis (Doc. 1) and proposed Complaint (Doc. 2), alleging the Defendants violated his constitutional rights during the course of criminal proceedings by including false information in his presentence investigation report. The motion to proceed in forma pauperis will be granted, but Mr. Cox's claims are barred by the applicable statute of limitations and by the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994). This matter should be dismissed.

         I. MOTION TO PROCEED IN FORMA PAUPERIS

         Because he is incarcerated, Mr. Cox must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court cannot determine the balance of Mr. Cox's prison account from the documents submitted; therefore, the initial partial filing fee is waived, and Mr. Cox 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. Cox will be required to pay the 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. Cox must make these monthly filing-fee payments simultaneously with the payments required in any other cases he has filed. Id. By separate order, the Court will direct the facility where Mr. Cox is held to forward payments from Mr. Cox's account to the Clerk of Court each time the account balance exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

         II. STATEMENT OF THE CASE

         A. Parties

         Mr. Cox was incarcerated at Yellowstone County Detention Facility at the time this matter was filed. He is currently incarcerated at Montana State Prison. He names the following Defendants: Terry Boyd, a probation officer with Billings Probation and Parole; the Billings Probation and Parole Department; Yellowstone County; and the Yellowstone County Public Defenders Office including David Arthur, Richard Phillips, and David Duke. (Complaint, Doc. 2 at 5.)

         B. Allegations

         Mr. Cox alleges Defendant Terry Boyd violated his right to due process by including false information in his presentence investigation report (PSI), including that Mr. Cox had eleven felony convictions, that he absconded, that he was terminated from Veterans treatment court, and that he had several probation violations that were never proven. Mr. Cox indicates his PSI was prepared in May 2015 and that he was sentenced on July 28, 2015. He claims that he was sentenced based on false information; he received a much harsher sentence than others because of the false PSI report; and his PSI was never corrected.

         He alleges the Yellowstone County Public Defender's Office denied him his right to have effective assistance of counsel. (Complaint, Doc. 2.)

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

         A. Standard

         Because Mr. Cox is a prisoner proceeding in forma pauperis, 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 before it is served 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 ...


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