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Fourstar v. Kane

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

September 30, 2019

VICTOR CHARLES FOURSTAR, JR., Plaintiff,
v.
RICHARD KANE, et al., Defendants.

          FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          Timothy J. Cavan, United States Magistrate Judge.

         Plaintiff Fourstar filed a complaint in this matter on March 14, 2016. Initially, the Court denied leave to proceed in forma pauperis and dismissed the complaint in the belief that Fourstar had accumulated three or more “strikes” under 28 U.S.C. § 1915(g). The Court of Appeals, however, noted that at least one case on which this Court relied was dismissed for lack of jurisdiction, and reversed and remanded the case to this Court for further proceedings.

         On December 20, 2018, the Court granted Fourstar's motion to proceed in forma pauperis, advised him of certain deficiencies in his pleading, and gave him an opportunity to file a supplement correcting those deficiencies. The Court also provided him a copy of his original complaint. See Order (Doc. 34) at 3-5, 7 ¶ 3.

         Fourstar responded on January 25, 2019 (Doc. 35). Five months later, on June 21, 2019, he also filed a motion to amend (Doc. 37), along with a 35-page proposed amended complaint.

         I. Claims and Analysis

         Fourstar was a prisoner at the time he filed this action. See Compl. (Doc. 2) at 1 (showing Fourstar's mailing address). He is also proceeding in forma pauperis. The Court must therefore review his complaint to determine whether it fails to state a claim on which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(a).

         A. Claims 1 and 2

         Fourstar's first two claims allege that all the Defendants he names are “bound together and functioning as a continuing unit in the enforcement of illegal and prejudicial state and federal criminal indictments and civil commitment procedures, ” Compl. (Doc. 2) at 8-9, or “illegal and prejudicial state and federal conviction(s) and SOMA, SONRA[1] and § 4042(B) procedures, ” id. at 11. These procedures include, according to Fourstar, his impending civil commitment and certification as a sexually dangerous person, see 34 U.S.C. § 20971, as well as the Federal Bureau of Prisons' obligation to notify appropriate State, Tribal, or local authorities when his release is imminent, see 18 U.S.C. § 4042(c)(1). Fourstar contends that all Defendants have executed or are executing these procedures in violation of the Ex Post Facto Clause, other constitutional rights, and the “Bad Men Clause of the 1851 and 1868 Fort Laramie Treaties.” He also alleges that the Defendants are motivated by “invidious racial and class based animus.” See id. at 10.

         “SOMA” is the acronym for the Sex Offender Management Assistance Program, a federal grant program available to State, Tribal, or local jurisdictions that incur costs in implementing viable sex offender registry systems. See 34 U.S.C. § 20928(a). SOMA neither confers rights on Fourstar nor violates any cognizable right. Similarly, no one in the District of Montana has moved to civilly commit Fourstar, and no one has alleged he is “suffering from a serious mental illness, abnormality, or disorder” causing him to have “serious difficulty in refraining from sexually violent conduct or child molestation.” 34 U.S.C. § 20971(e)(2). Additionally, as Fourstar has repeatedly been advised, the “bad men” provision of the 1868 Fort Laramie Treaty does not say what he apparently believes it says. See United States v. Drapeau, 414 F.3d 869, 877-78 (8th Cir. 2005); see also, e.g., Order (Doc. 38) at 6, Fourstar v. Eliason, No. 4:16-CV-113-SPW (D. Mont. Dec. 6, 2018). These provisions of law are not relevant to Fourstar's case.

         “SORNA” is the acronym for the Sexual Offender Registration and Notification Act, which is subtitle A of title I of the Adam Walsh Child Protection and Safety Act of 2006. See Pub. L. No. 109-248, 120 Stat. 587 (July 27, 2006). SORNA is relevant to Fourstar's case, but the Court is not aware of any authority holding that its application or its requirements violate a constitutional right of a person in Fourstar's circumstances. The Act expressly applies to sex offenders serving prison sentences at the time of its enactment in July 2006. See 34 U.S.C. § 20913(b)(1). This includes Fourstar, who committed aggravated sexual abuse on or about March 24, 2002, was sentenced in February 2003, and was released from prison in December 2016. See Judgment (Doc. 110) at 1, Pet. for Warrant (Doc. 163) at 1, United States v. Fourstar, No. 4:02-CR-52-DLC (D. Mont. Jan. 17, 2017).

         Further, in March 2002, when Fourstar committed aggravated sexual abuse in violation of 18 U.S.C. § 2241(a), it was already clear that, upon conviction, federal sex offenders must register with the State or the FBI pursuant to the 1994 Jacob Wetterling Crimes Against Children and Sexually Violent Predator Registration Program. See, e.g., 42 U.S.C. §§ 14071(a)(1)(A), (3)(B), (b)(3)(A), (4)-(5), (7)(A), (d), 14072(a)(3)(A), (b)(2), (c) (eff. Oct. 30, 1998); see also 42 U.S.C. § 14071(j)(1) (eff. Oct. 28, 2002). SORNA repealed and replaced the Wetterling Act. See Pub. L. No. 109-248, tit. I, § 129, 120 Stat. at 601 (July 27, 2006); United States v. Kebodeaux, 570 U.S. 387, 391-93 (2013).

         Therefore, no new legal consequence arose after the fact of Fourstar's criminal conduct, and both the Wetterling Act and SORNA are proper exercises of Congressional authority under the Necessary and Proper Clause. See Kebodeaux, 570 U.S. at 393-97. Case law raising issues of retroactivity, the nondelegation doctrine, the Ex Post Facto Clause, the Commerce Clause, and the Tenth Amendment, see, e.g., United States v. Byun, 539 F.3d 982, 986 n.6 (9th Cir. 2008), provide no foothold in Fourstar's case. As to due process, Fourstar alleges only that he is “wrongfully subjected” to SORNA. See Compl. (Doc. 2) at 10. He is rightly subject to SORNA. See 34 U.S.C. § 20913(b)(1).

         Fourstar also alleges he was incarcerated beyond his lawful discharge date “without authority where he is actually innocent.” Compl. at 8. A decision in this case that he is actually innocent of either aggravated sexual abuse or his 1992 state conviction for sexual intercourse without consent would necessarily imply that his federal or state conviction is invalid. He may not litigate such a claim in this case. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Even assuming the Heck bar might not apply to the state conviction, see, e.g., Spencer v. Kemna, 523 U.S. 1, 19, 25 n.8 (1998), the three-year limitations period expired at least ten years before Fourstar filed this action, see Mont. Code Ann. § 27-2-204(1); Wilson v. Garcia, 471 U.S. 261, 280 (1985); Correctional Offender Network, https://app.mt.gov (accessed Sept. 9, 2019) (citing ten-year sentence imposed on Dec. 23, 1992). There is no forward path in this action for Fourstar to argue that he is innocent of a criminal offense.

         Because Fourstar fails to state a claim in these respects, his allegations come down to the proposition that all the Defendants he names are “bound together and functioning as a continuing unit” in enforcing the consequences of the federal and/or state criminal judgments against him. That proposition, by itself, provides no support for an inference that any defendant is acting on ...


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