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Ray v. Ted Hess-Homeier

United States District Court, D. Montana, Missoula Division

October 4, 2019

LANICA LATRICE RAY, Plaintiff,
v.
TED HESS-HOMEIER; DONOVAN RUSSEL, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          KATHLEEN L. DESOTO UNITED STATES MAGISTRATE JUDGE

         On June 18, 2019, Plaintiff Ray moved to proceed in forma pauperis with this action alleging violation of federal laws prohibiting discrimination on the basis of physical or mental disability. See Compl. (Doc. 2) at 6.

         I. Motion to Proceed In Forma Pauperis

         Ray's motion adequately demonstrates that she is unable to pay costs that may be associated with this action. The $400.00 filing fee will be waived.

         II. Screening Requirement

         Ray is proceeding in forma pauperis. The Court must review her complaint to determine whether it fails to state a claim on which relief may be granted. See 28U.S.C.§1915(e)(2)(B)(ii).

         Ray is also self-represented. "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. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks and citation omitted). Courts must briefly explain deficiencies that may be cured by amendment, see Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012), but if a claim cannot be cured by amendment, "the court shall dismiss" it, 28 U.S.C. § 1915(e)(2) (emphasis added).

         III. Analysis

         Ray contends that she made good-faith attempts to pay her rent but was evicted anyway. She submits exhibits, see Compl. Exs. (Doc. 2-2 at 1-28), showing that she paid $325.00 to a payee that appears to include Defendant Russel on February 5, March 5, April 4, and June 4, 2019. See Credit Union Statements (Doc. 2-2 at 3, 4, 5, 28).

         But Ray's exhibits also show that, on April 29, 2019, the Missoula County Justice Court issued a summons requiring her to answer a complaint that had been filed against her. See Summons (Doc. 2-2 at 14). The corresponding complaint, bearing No. CV-2019-1202, alleged that, on March 20, 2019, Ray received seven days' notice that she must pay back rent in the amount of $1, 175.00, plus $90.00 in late fees, or vacate the premises and remove her mobile home. See Complaint for Possession, Seven-Day Notice (Doc. 2-2 at 15-17).

         Ray was ordered to answer the complaint within ten days of the date of the summons, that is, on or before May 13, 2019. She did not timely respond. On May 17, 2019, Ray's default was entered, and the Justice of the Peace entered an order granting possession and a writ of assistance authorizing eviction. See Order (Doc. 2-2 at 6). Ray appeared twice thereafter in the Justice Court, on May 24 and May 30, 2019, see Order (Doc. 2-2 at 6-7); Answer (Doc. 2-2 at 18); Mot. to Stop Eviction (Doc. 2-2 at 21), but it was too late.

         For better or worse, all litigation comes to an end, including eviction actions. Ray does not allege that she did not receive notice or did not have an opportunity to be heard or to dispute the amount owed. Her exhibits include a statement that she "thought if I didn't do anything the problem would just go away I was served my eviction papers at the end of April, and now it is almost the end of May." Address to Justice Beal (Doc. 2-2 at 19-20). The court documents she submits appear to be unremarkable records of the way an eviction action proceeds. The action concluded weeks before Ray filed this action and, at any rate, a federal court has no power to hear an appeal or to relitigate a civil action filed and concluded in state court. Even assuming Ray has a disability and is entitled to protections afforded by various federal laws, see Soc. Security Admin. Documents (Doc. 2-2 at 8-9, 11-13, 24-27), no federal law requires her landlord to carry her debt, and no federal law prevents her landlord's attorney from protecting his client's interests.

         Ray had an opportunity to contest her eviction. The time for doing so came and went before she filed this action. The facts she alleges, and the facts the Court can gather from her exhibits, do not support an inference that the Defendants were at fault for Ray's failure to timely respond to the complaint for possession. Ray's complaint ...


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