Ellison v. Yellowstone County et al

Filing 170

ORDER denying 159 Motion for Cease-and-Desist Order; denying 160 Motion to Alter Judgment. The stay that was previously imposed in this matter is to remain in effect. Ellison shall file a motion to lift the stay as described. Signed by Magistrate Judge John Johnston on 9/15/2022. Transmitted electronically to prison for delivery to inmate. (TAG)

Case 1:18-cv-00056-BMM-JTJ Document 170 Filed 09/15/22 Page 1 of 4

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
LIONEL SCOTT ELLISON,

CV 18-00056-BLG-BMM-JTJ

Plaintiff,
vs.

ORDER

OFFICER WASHINGTON, OFFICER
GROSLOCK, OFFICER JOHNSON,
and SGT. PETERS,
Defendants.
On March 9, 2021, this Court imposed a stay in this matter in order to allow
Plaintiff Ellison to pursue his companion habeas corpus case, Ellison v. Salmonsen
et al., Cause No. CV-21-26-BLG-DLC-TJC. See, (Doc. 146.) Although the prior
order of this Court indicated that the stay would last for one calendar year, to date
the stay has not been lifted. Ellison was advised he should inform the Court, via
motion, when his habeas case is concluded and the stay will be lifted. See, (Doc.
156.)
Despite the stay, Ellison continues to file in this matter. Currently pending
before the Court are Ellison’s Motion for Cease-and-Desist Order, (Doc. 159), and
Motion to Alter Judgment. (Doc. 160).
In his Motion for Cease-and-Desist Order, Ellison asks this Court to
intervene in the electronic filing procedures in place at Montana State Prison
1

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(“MSP”) and order the prison librarians to provide one free copy of the document
electronically filed by the prisoner, in addition to the original document being
returned. See, (Doc. 159 at 1-2.) Apparently, for a period of time this was, in fact,
the practice at MSP. Ellison asserts that this process, including the free copy of the
prisoner’s document, is mandated not only by the Court’s Standing Order, but also
by the language contained in the Notice of Electronic Filing (“NEF”). Mr. Ellison
believes he has a due process right to obtain the “free copy” of his documents. Mr.
Ellison is mistaken.
The language he cites to in the NEF in inapplicable to MSP inmates utilizing
the Court’s E-Filing Project. This language is auto-generated by the filing system
and indicates an attorney or a party to a suit, who receives electronic service of
documents as a registered CM/ECF participant, is entitled to one free view of a
document. After that first viewing opportunity, if the document is not downloaded,
the party will be charged the applicable PACER fee to re-access the document.
Mr. Ellison is not an attorney of record or a party to a case who is set up to receive
electronic notifications from the Court’s filing system.
The language that controls Mr. Ellison’s situation is Standing Order No.
BMM-6, which Ellison has attached to his motion. See, (Doc. 159-1 at 3-7.) The
Standing Order contains no provision requiring that an additional free copy of
prisoner’s documents be provided. The following procedure is outlined:
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When a court filing is docketed, a Notice of Electronic Filing (“NEF”)
is issued. The NEF confirms the date of docketing and contains an
electronic link to the court filing. The MDOC will establish an e-mail
address by which MSP staff will receive the NEF when a document
has been filed electronically. When MSP staff receive an NEF for a
document filed by a prisoner, MSP staff will return the original
documents to the prisoner with the NEF which will indicate that the
document has been electronically filed, when it was filed, and the
number of pages filed with the Court. The prisoner litigant is
expected to keep the original court filing and produce it at a later time,
if ordered to do so by the Court.
Standing Order No. BMM-6 at 5(c). There is no requirement that prisoners be
provided a “free” copy in addition to their original. Similarly, Section 5(e) of the
Standing Order requires that when the Court enters an order directed to the parties,
the filing will be sent to MSP. MSP staff is then required to print and provide the
prisoner with copies of the NEF and the Court-issued order or communication.
Again, the Standing Order does not contemplate any additional copies.
Further, the Standing Order explicitly states that prisoners are not registered
CM/ECF participants. Id. at 5(f). Thus, the language upon which Mr. Ellison
relies in the NEF does not include him. In short, Mr. Ellison has no basis upon
which to request this Court’s intervention in the E-Filing Project; the Motion for
Cease-and-Desist Order will be denied.

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Ellison has also filed a motion to alter or amend the judgment.1 Ellison has
also filed a similar motion previously in this case. See, (Doc. 153.) Ellison is
advised, yet again, that such motion is premature. See e.g., (Doc. 156 at 2.) While
this matter is currently stayed, it is still pending and no judgment has been entered.
This motion will also be denied.
Ellison should file a motion to lift the stay with this Court once his habeas
case has been resolved. Until that time, Ellison should refrain from filing motions
in the instant matter.
ACCORDINGLY, IT IS HEREBY ORDERED:
1.

The stay that was previously imposed in this matter is to remain in

effect. Ellison shall file a motion to lift the stay with the Court when his
proceedings relative to Ellison v. Salmonsen et al., Cause No. CV-21-26-BLGDLC-TJC, have been resolved.
2.

Ellison’s Motion for Cease-and-Desist Order (Doc. 159) is DENIED.

3.

Ellison’s Motion to Alter Judgment (Doc. 160) is DENIED.

DATED this 15th day of September, 2022.
/s/ John Johnston
John Johnston
United States Magistrate Judge

1

He has filed the same motion in other active and closed cases, including Ellison v. Salmonsen et
al., Cause No. CV-21-26-BLG-DLC; Ellison v. Fletcher, Cause No. 17-168-BLG-DLC; Ellison
v. Guyer et al., Cause No. CV-18-176-BLG-DLC.
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