Hinman v. Kirkegard et al

Filing 9

ORDER ADOPTING 4 FINDINGS AND RECOMMENDATIONS. Matter DISMISSED WITH PREJUDICE. Dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). Any appeal of this decision would not be taken in good faith. Signed by Judge Susan P. Watters on 4/14/2015. Mailed to Hinman. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

APR 1 4 2015
Clerk:, U S District Court
Oi$tnct Of fvlontana
Billings

RICHARD DENVER HINMAN,

CV 15-00013-BLG-SPW-CSO

Plaintiffs,

ORDER AND OPINION

vs.
STATE OF MONTANA and
STEVE BULLOCK, ATTORNEY
GENERAL,
Defendant.

Richard Hinman filed a motion to proceed in forma pauperis and a
Complaint against the State of Montana and Steve Bullock. Hinman is
proceeding prose. Magistrate Judge Ostby granted his motion to
proceed in forma pauperis and recommends dismissing the Complaint
with prejudice. (Doc. 4).
Hinman had 14 days to file objections to Judge Ostby's Findings
and Recommendation. He filed objections on March 23, 2015, (doc. 7),
and again on April 3, 2015 (doc. 8). Hinman's April 3, 2015, objection
missed the deadline by one day, but argues the same points as his
March 23, 2015, objection, so the Court considers both. After a de novo
review, this Court adopts Judge Ostby's Findings and
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Recommendations and dismisses the Complaint.
I.

Discussion
This Court is required to review de novo the portions of the

Findings and Recommendations to which Hinman objects. 28 U.S.C. §
636(b)(l)(B). Hinman argues that Judge Ostby erred in determining
that his claims are barred by the Heck doctrine and the applicable
statute of limitations. (Docs. 7 and 8).
As Judge Ostby pointed out, because the outcome Hinman seeks
in his Complaint would necessarily "imply the invalidity of his
conviction," Hinman must be able to prove that his conviction or
sentence has been reversed on direct appeal, expunged, or otherwise
declared invalid. Heck v. Humphrey, 512 U.S. 4 77, 486-87 (1994).
Hinman's conviction has not been reversed, declared invalid, expunged
or called into question. (See gen. docket). Accordingly, Hinman's claims
are barred. Heck, 512 U.S. at 487.
Hinman also argues that his Complaint is not barred by the
statute of limitations because he has "been filing on this since 1995."
(Doc. 8 at 1). But regardless of how many different pleadings he has
filed since 1995, the Section 1983 claims he raised in his Complaint
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filed on March 4, 2015, involved claims regarding his 1994 criminal
case. (See Doc. 2-1at1 (alleging that "[i]n 1994 Judge Byron L. Robb
never recused himself, I did not receive a fair trial, ineffective
assistance of councel (sic) bias, and prejudice, I asked for a change of
venue, it was denied.")
Section 1983 provides a federal cause of action, but looks to the
law of the State in which the cause of action arose for the statute of
limitations. Wallace v. Kato, 549 U.S. 384, 387 (2007). Whatever the
state provides as the statute of limitations for personal-injury torts
becomes the§ 1983 statute of limitations. Id. Montana's statute of
limitations for personal-injury torts is three years. Mont. Code. Ann. §
27-2-204(1). Thus, the statute of limitations on Hinman's claims in his
Complaint ran approximately 20 years ago.
II.

Conclusion

The Court finds no clear error. For the reasons given in the
Findings and Recommendation, Hinman's Complaint is DISMISSED.
IT IS ORDERED that the Findings and Recommendations (Doc. 4)
are adopted in full.
IT IS FURTHER ORDERED that this matter is DISMISSED
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WITH PREJUDICE.
The Clerk of Court is directed to close this case and enter
judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
The Clerk of Court is further directed to have the docket reflect
that this dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g)
based upon Hinman's failure to file within the statute of limitations.
The Clerk of Court is further 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.

DATED

this~ of April 2015.
/sll;an P. Watters
United States District Court

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