Fourstar v. Clark et al

Filing 11

ORDER denying as moot 5 Motion for Recusal; denying without prejudice 7 Motion to Amend and Motion to Stay. This case is stayed pending resolution of the revocation proceedings in Criminal Action No. 02-cr-52-GF-DLC. Mr. Fourstar must file a report on the status of his revocation proceedings every six months until such time as the matter has been resolved. Signed by Magistrate Judge Timothy J. Cavan on 3/6/2017. Mailed to Fourstar. (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
VICTOR CHARLES FOURSTAR, JR.,

CV-16-0126-GF-DLC-TJC

Plaintiff,
vs.

ORDER

MELVIN CLARK, BRUCE BAUER,
MICHAEL ELIASON, and TOM
HOLTER,
Defendants.
This matter is pending on Plaintiff Victor Fourstar’s Complaint (Doc. 2);
Motions to Recuse (Docs. 5, 8) and Motion to Amend and Motion to Stay pending
Exhaustion of Tribal Court Remedies (Doc. 7).1 Mr. Fourstar is a prisoner
proceeding in forma pauperis and without counsel.
I. BACKGROUND
After being found guilty of aggravated sexual abuse, Mr. Fourstar was
sentenced by Judge Haddon on February 27, 2003 to 188 months custody,

Mr. Fourstar also filed two objections to Findings and Recommendations
(Docs. 8, 9), but no Findings and Recommendations have been issued in this case.
No action will be taken on these objections.
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followed by 60 months supervised release. He began his term of supervised
release on December 9, 2016.
On December 16, 2017, Michael Eliason, United States Probation Officer
prepared a request to modify the terms of supervision with consent of offender.
Mr. Eliason indicated that the modified conditions were necessary to conform with
Ninth Circuit case law. Mr. Fourstar refused to sign the form. He was directed to
register as a sex offender, and was given until December 21, 2016 to complete
registration. He refused to do so. (Mtn to Amend, Doc. 7; Criminal Action No.
4:02cr52-DLC Petition for Warrant, Doc. 163.) Mr. Fourstar was arrested on
January 23, 2017. (Mtn to Amend, Doc. 7 at 3.) A final revocation hearing was
held on February 22, 2017 before Judge Morris. During the hearing, Mr. Fourstar
asked to recuse Judge Morris. (Criminal Action No. 4:02cr52-DLC, Minute Entry,
Doc. 178.) This matter and the criminal case were both reassigned to Judge
Christensen on February 23, 2017. (Doc. 10; Criminal Action No. 4:02cr52-DLC,
Order Reassigning Case, Doc. 179.) Mr. Fourstar’s revocation remains pending.
II. INITIAL SCREENING
A. Standard
Mr. Fourstar is proceeding in forma pauperis so the Court must review his
Complaint under 28 U.S.C. § 1915. Section 1915(e)(2)(B) requires the Court to
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dismiss a complaint filed in forma pauperis and/or by a prisoner against a
governmental defendant before it is served if it is frivolous or malicious, fails to
state a claim upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief.
A complaint is frivolous if it “lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint is malicious if
not pleaded in good faith. Kinney v. Plymouth Rock Squab. Co., 236 U.S. 43, 46
(1915). A complaint fails to state a claim upon which relief may be granted if a
plaintiff fails to allege the “grounds” of his “entitlement to relief.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted). Rule 8(a)(2)
requires a complaint to “contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quotations omitted).
“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); Cf. Fed.R.Civ.P. 8(e) (“Pleadings must be construed as to do justice.”).
B. Analysis
In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme
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Court held that 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 plaintiff must prove that the conviction
or sentence has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ of habeas corpus. Heck,
512 U.S. at 486-487; see also Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996)
(applying Heck rule to Bivens action).
The United States Supreme Court in Wallace v. Kato, 549 U.S. 384 (2007),
held that the “Heck rule for deferred accrual is called into play only when there
exists ‘a conviction or sentence that has not been . . . invalidated,’ that is to say,
an ‘outstanding criminal judgment.’” Id. at 1097-98 (quoting Heck, 512 U.S. at
486-87). The Court specifically rejected the contention that “an action which
would impugn an anticipated future conviction cannot be brought until that
conviction occurs and is set aside,” stating that such a proposition goes “well
beyond Heck.” Id. at 1098 (italics in original). Thus, if a plaintiff files a false
arrest claim before he is convicted, or files any other claim related to rulings that
likely will be made in a pending or anticipated criminal trial, it is within the
power, and accords with common practice, to stay the civil action until the
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criminal case or the likelihood of a criminal case is ended. Id. If the plaintiff is
then convicted, and if the stayed civil suit would impugn that conviction, Heck
requires dismissal; otherwise, the case may proceed. Id.
In the current action, Mr. Fourstar challenges whether he was properly
arrested for failing to register as a sex offender because it was not a requirement of
his underlying conviction and sentence. (Cmplt., Doc. 2.) The issue of whether
Mr. Fourstar’s supervised release should be revoked for failing to register as sex
offender is currently pending before Judge Christensen in Criminal Action No. 02cr-52-GF-DLC.
In light of the pending criminal matter, the Court will “in accord with
common practice” stay this civil action until the criminal case has ended. Wallace,
549 U.S. at 394.2
Because the case has been reassigned, the motions to recuse will be denied
as moot. The motion to amend will be denied without prejudice pending
resolution of Mr. Fourstar’s criminal proceedings.
Because an order issuing a stay is not one of the motions excepted in 28
U.S.C. § 636(b)(1)(A), and is not dispositive of any claim on the merits within the
meaning of Rule 72 of the Federal Rules of Civil Procedure, it is within the
province of a magistrate judge’s authority. Touton, S.A. v. M.V. Rizcun Trader, 30
F.Supp.2d 508, 510 (E.D. Pa.1998) (“[T]he Court finds that neither the grant of the
stay of proceedings . . . , nor the lift of said stay, constituted ‘injunctive relief’ in
excess of the Magistrate Judge’s authority under § 636(b)(1)(A).”).
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Based upon the foregoing, the Court issues the following:
ORDER
1. Mr. Fourstar’s Motions to Recuse (Docs. 5, 8) are DENIED AS MOOT.
2. Mr. Fourstar’s Motion to Amend and Motion to Stay pending Exhaustion
of Tribal Court Remedies (Doc. 7) is DENIED WITHOUT PREJUDICE and
subject to renewal after resolution of criminal proceedings.
3. This case is stayed pending resolution of the revocation proceedings in
Criminal Action No. 02-cr-52-GF-DLC.
4. Mr. Fourstar must file a report on the status of his revocation
proceedings every six months until such time as the matter has been resolved. If
Mr. Fourstar desires to continue with this case after disposition of the revocation
proceedings, he must request the stay be lifted within thirty days of disposition of
the revocation proceedings, unless an appeal of those proceedings is filed. If he
appeals, any request to lift the stay must be filed within thirty days of completion
of the appellate process.
5. At all times during this action, Mr. Fourstar shall immediately advise the
Court of any change of address and its effective date. Failure to file a notice of
change of address may result in the dismissal of the action for failure to prosecute

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pursuant to Fed.R.Civ.P. 41(b).
DATED this 6th day of March, 2017.

Timothy J. Cavan
United States Magistrate Judge

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