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
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.
MOTION TO PROCEED IN FORMA PAUPERIS
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.
STATEMENT OF THE CASE
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.)
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.
alleges the Yellowstone County Public Defender's Office
denied him his right to have effective assistance of counsel.
(Complaint, Doc. 2.)
SCREENING PURSUANT TO 28 U.S.C. §§ 1915, 1915A
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.
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 ...