United States District Court, D. Montana, Great Falls Division
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE
Timothy J. Cavan, United States Magistrate Judge.
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.
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.
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.
Claims and Analysis
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),
Claims 1 and 2
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 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.
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.
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).
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).
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).
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.
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 ...