Leek v. Montana Board of Pardons and Parole
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Motion for Leave to Amend Complaint 14 DENIED. Complaint 2 DISMISSED. 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 Brian Morris on 12/14/2016. Mailed to Leek. (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
PETER NORMAN LEEK,
MT BOARD OF PARDONS &
Plaintiff Peter Norman Leek (Leek) is a prisoner incarcerated at Crossroads
Correctional Center in Shelby, Montana. Leek filed a Complaint pro se on
May 27, 2016. The named Defendant is the Montana Board of Pardons and Parole.
Leek alleges that the Montana Board of Pardons and Parole violated his
constitutional rights in contravention of the 42 U.S.C. § 1983 when it denied his
requests for parole on grounds that he had failed to complete sex offender treatment.
United States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on June 17, 2016. (Doc. 4). Judge Johnston
recommended that Leek’s Complaint be dismissed because the Eleventh
Amendment to the United States Constitution, the doctrine of claim preclusion, the
doctrine of issue preclusion, and the pronouncement of the United States Supreme
Court in Heck v. Humphrey, 512 U.S. 477 (1994), all barred Leek’s § 1983 claims.
(Doc. 4 at 4-7). Leek made two requests to extend the deadline for filing objections
to Judge Johnston’s Findings and Recommendations. (Docs. 6, 8). The Court
granted both requests.
Leek filed his objections to Judge Johnston’s Findings and Recommendations
on September 16, 2016. (Doc. 13). Leek also filed, on the same date, a Motion to
Amend Complaint. (Doc. 14). Leek seeks leave to amend his Complaint to assert
similar claims against four additional Defendants: two members of the Montana
Board of Pardons and Parole — Daryl Dupuis and John Rex, as well as the State of
Montana, and the Montana Department of Corrections.
The Court reviews de novo findings and recommendations to which
objections are made. 28 U.S.C. § 636(b)(1). The Court has reviewed Judge
Johnston’s Findings and Recommendations de novo. The Court finds no error in
Judge Johnston’s Findings and Recommendations, and adopts them in full.
The Eleventh Amendment bars lawsuits in federal court against a state or a
state agency absent an express waiver of immunity by the state. See Idaho v. Coeur
d’Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997); Puerto Rico Aqueduct and
Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Edelman v.
Jordan, 415 U.S. 651, 663 (1974). The State of Montana has waived immunity
only for tort claims brought in state court. Mont. Code Ann. § 2-9-102. Leek’s
claims against the Montana Board of Pardons are barred by the Eleventh
Claim Preclusion and Issue Preclusion
The doctrine of claim preclusion, also known as res judicata, bars a party
from re-litigating claims that were raised or could have been raised in a prior action.
Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001;
Wiser v. Montana Bd. of Dentistry, 251 P.3d 675, 677 (Mont. 2011). The elements
of claim preclusion are: (1) the parties or their privies are the same;
subject matter of the present and past actions is the same; (3) the issues are the same
and relate to the same subject matter; (4) the capacities of the parties are the same to
the subject matter and issues between them; and (5) a final judgment on the merits
has been entered. Id.
“Collateral estoppel, or issue preclusion, bars the reopening of an issue that
has been litigated and determined in a prior suit.” Baltrusch v. Baltrusch, 130 P.3d
1267, 1273-74 (Mont. 2006). The elements of issue preclusion are: (1) the issue
raised was previously decided in a prior adjudication; (2) a final judgment on the
merits was issued in the prior adjudication; (3) the party against whom collateral
estoppel is now asserted was a party or in privity with a party to the prior
adjudication; and (4) the party against whom preclusion is asserted must have been
afforded a full and fair opportunity to litigate any issues which may be barred. Id.
Leek’s claims in this case are barred by both claim and issue preclusion.
Leek filed a state petition for writ of habeas corpus challenging the decision of the
Montana Board of Pardons and Parole. Leek argued, as he does here, that the Board
violated his constitutional rights when it denied his parole request based upon his
failure to complete sex offender treatment. Leek v. Frink, 346 P.3d 364 (Table)
(Mont. March 4, 2014). The Montana Supreme Court concluded that the Board had
not violated Leek’s constitutional rights, and denied Leek’s petition. Id.
Leek is a party to both this action and the Montana Supreme Court action.
The subject matter in both actions is the same. The issue raised in this action was
litigated in the prior state court action. The capacities of the parties are the same. A
final judgment on the merits was issued in the state court action. Leek had a full
and fair opportunity to litigate the issue in the state court proceeding. The claims
asserted by Leek in this action are barred by the doctrines of issue preclusion and
Motion to Amend Complaint
Leave to amend a complaint is generally granted to pro se litigants. Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). The Court may decline to grant
leave to amend, however, it is clear “that the deficiencies of the complaint could not
be cured by [the proposed] amendment.” Id. As discussed above, Leek seeks to
amend his Complaint to assert similar claims against Board member Daryl Dupuis,
Board member John Rex, the State of Montana, and the Montana Department of
Corrections. Any such claims would also be barred by claim preclusion and issue
preclusion for the reasons discussed above.
Accordingly, IT IS ORDERED:
Plaintiff’s Motion for Leave to Amend his Complaint (Doc. 14) is
Plaintiff’s Complaint (Doc. 2) is DISMISSED with prejudice.
The filing of this action counts as one strike for failure to state a claim.
28 U.S.C. § 1915(g).
Any appeal of this decision would not be taken in good faith as
Plaintiff’s claims are frivolous.
The Clerk is directed to enter judgment accordingly.
DATED this 14th day of December, 2016
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