Straight v. State of Montana et al

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Straight's Complaint is DISMISSED WITHOUT PREJUDICE. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal of this decision would not be taken in good faith. Signed by Judge Richard F. Cebull on 8/22/2012. Mailed to Straight. (TAG, )

AUG 2~ 2012
PATRICK E. DUFFY CLERK
BY --oeputY="':'7JCia::8fk::r;-­

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
THOMAS E. STRAIGHT,
Plaintiff,
vs.

MONTANA STATE, et aI.,
Defendants.

CV-12-50-BLG-RFC

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ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE

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On June 26,2012, United States Magistrate Judge Carolyn Ostby entered
Findings and Recommendation. Magistrate Judge Ostby recommends this Court
dismiss the Complaint.
Upon service of a magistrate judge's findings and recommendation, a party
has 14 days to file written objections. 28 U.S.C. § 636(b)(1). Plaintiff requested
and was given an extension of time, until August 3,2012, to file written
objections. No objections were filed. Failure to object to a magistrate judge'S
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findings and recommendation waives all objections to the findings of fact. Turner
v. Duncan, 158 F.3d 449,455 (9th Cir. 1999). However, failure to object does not
relieve this Court of its burden to review de novo the magistrate judge's
conclusions of law. Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989).
Straight alleges his constitutional rights involving the 4th, 8th, and 18th
Amendments have been violated by the unconstitutional sentencing in Flathead
County District Court in approximately July 2009. (Court Doc. 2, p. 5).
This is Straight's third attempt to challenge his conviction and sentence in
federal court. He filed a similar complaint in 2010 alleging the State of Montana,
Flathead County, Judge Kitty Curtis, and his public defender violated his Fifth and
Fourteenth Amendment protections against double jeopardy when his probation
was revoked in 2009 and he was sent back to prison. (Civil Action

10-CV-40-M-DWMJCL, Court Doc. 4). That case was dismissed pursuant to the
Heck doctrine because his conviction had not been reversed, declared invalid,
expunged, or called into question.
In 2011, Straight filed a habeas petition. In that case, the petition was
dismissed based upon statute of limitations and Straight did not appeal that
decision. (Civil Action No. 11-CV-60-M-DWM-JCL, Court Doc. 6, pp. 1-2).
Straight is once again attempting to challenge his sentence by filing a civil
complaint. InHeckv. Humphrey, 512 U.S. 477 (1994), the United States Supreme
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Court held that "in order to recover damages for an allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal," or
otherwise declared invalid, called into question by the issuance of a habeas writ, or
expunged.
Because Straight remains incarcerated on the charges he complains of, the
Court concludes that his conviction has not been reversed, declared invalid,
expunged, or called into question. Thus, he has failed to state a constitutional
claim upon which relief may be granted.
After an extensive review of the record and applicable law, this Court finds
Magistrate Judge Ostby's Findings and Recommendation are well grounded in law
and fact and adopts them in their entirety.
The Prison Litigation Reform Act (PLRA) prohibits prisoners from bringing
forma pauperis civil actions if the prisoner has brought three or more actions in
federal court that were dismissed for frivolousness, maliciousness, or for failure to
state a claim. 28 U.S.C. § 1915(g). Whether a complaint dismissed pursuant to
Heck constitutes a strike has not been addressed by the Ninth Circuit. Andrews v.

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Cervantes, 493 F.3d 1047, 1052, n. 2 (9th Cir. 2007). Based upon the nature of
this case, and Straight's continued attempts to attack his conviction, this matter
will constitute a strike under 28 U.S.C. § 1915(g).
Furthermore, Straight's failure to state a claim is so clear no reasonable
person could suppose an appeal would have merit. The Court certifies that any
appeal of this matter would not be taken in good faith.
Accordingly, IT IS HEREBY ORDERED as follows:
1.

Straight's Complaint is DISMISSED WITHOUT PREJUDICE for
failure to state a claim upon which relief may be granted.

2.

The Clerk of Court is directed to close this matter and enter judgment
pursuant to Rule 58 of the Federal Rules of Civil Procedure.

3.

The Clerk of Court is directed to have the docket reflect that the
dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g), based
upon Straight's failure to state a claim upon which relief may be
granted.

4.

The Clerk of Court should is directed to have the docket reflect that
the Court certifies pursuant to Fed.R.App.P. 24(a)(3)(A) that any
appeal of this decision would not be taken in good faith. The record
makes plain the instant Complaint is frivolous as it lacks arguable
substance in law or fact.
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5.

The Clerk Of~hall notify the parties of the entry ofthis Order.

DATED the

J-d- day of August, 201 .
RICHARD F. CEBULL
UNITED STATES DISTRICT JUDGE

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