Ellenburg v. Mahoney

Filing 5

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. ; ORDER DISMISSING CASE; adopting Findings and Recommendations re 3 Findings and Recommendations.; denying 2 Motion for Leave to Proceed in forma pauperis; the Clerk of Court is directed to enter a judgment of dismissal. 5. The Clerk of Court is further directed to have the docket reflect that the Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure that any appeal of this decision would not be taken in good faith. Signed by Judge Donald W. Molloy on 12/9/2011. (CDH, ) Modified on 12/9/2011 to reflect Order mailed to Ellenburg) (CDH, ).

FILED

DEC 09 2011
PATRICK E. DUFFY. CLERK

By·-;;:DE=PUTY~""CLE~RK:;-C.MI""S"'S""OU""'U\-;-­

IN TIIE UNITED STATES DISTRICT COURT

FOR TIIE DISTRICT OF MONTANA

MISSOULA DIVISION

MICHAEL ELLENBURG,
Petitioner,
vs.
MIKE MAHONEY,
Defendant.

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Cause No. CV 11-66-H-DWM-RKS

ORDER

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Petitioner Michael Ellenburg filed a pleading and several attachments on
November 14,2011. The Clerk filed the pleading, titled "Petition for Federal
Review Per Rule 81(c)," as a petition for writ of habeas corpus.
United States Magistrate Judge Strong entered Findings and
Recommendations on December 1, 2011. (Dkt # 3.) He recommended this Court

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deny Ellenburg's motion to proceed in forma pauperis and dismiss his pleading for
lack of federal appellate jurisdiction. Judge Strong found that Ellenburg's
pleading could not fairly be construed as a habeas petition. He also rejected
Ellenburg's attempt, by invoking Rule 81(c), to remove a case he had filed in state
court to federal court because removal is only available to defendants. Thirdly, he
rejected Ellenburg's request for "federal review" of a decision of the Montana
Supreme Court because federal district courts cannot provide appellate review for
state court decisions.
Ellenburg timely filed objections, titled "Petition for De Novo Review," on
December 7,2011. (Dkt # 4.) He agreed with Judge Strong that his filing could
not be construed as a habeas petition. He again asserted that he sought federal
review of the Montana State Supreme Court's decision that was attached to the
original pleading. He also requested declaratory judgment concerning actions by
prison officials that he alleges have denied him access to the courts, free speech,
and due process.
Ellenburg is correct that he is entitled to de novo review of the specified
[mdings or recommendations to which he objects, 28 U.S.C. § 636(b )(1), and that
pro se pleadings are to be liberally construed, Haines v. Kerner, 92 S.Ct. 594
(1972). The Court reviews portions of the Findings and Recommendation not
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specifically objected to for clear error. McDonnell Douglas Corp. v. Commodore
Bus. Mach.. Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
Even construing Ellenburg's pleading and objections liberally, the Court
finds no basis for jurisdiction. This Court agrees with Ellenburg and Judge Strong
that Ellenburg's pleading is not a habeas petition. Neither his pleading nor
objections allege he was convicted or detained unlawfully. See Wilkinson v.
Dotson, 544 U.S. 74, 80-81 (2005). Thus, to the extent that Ellenburg seeks
review of the state court decisions cited in and attached to his pleading, this Court
is barred from reviewing the decisions under the principles ofres judicata and 28
U.S.C. § 1257. See also 28 U.S.C. §§ 1331, 1738; Gruntzy. County of Los
Angeles (In re Gruntz), 202 F.3d 1074, 1078-79 (9th Cir. 2000) (en banc).
Ellenburg's remaining objections concern alleged acts and omissions of
prison officials during his detention that he claims infringed on his right of access
to the courts, his right of free speech, and his right to due process. He argues
Mike Mahoney was responsible for these alleged violations as the warden at the
time the actions allegedly took place, based on his supervisory role and
responsibility for implementing policies at the prison.
Generally, 42 U.S.C. § 1983 is the proper vehicle for prisoners to raise
constitutional claims against persons acting under the color of state law. The
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redress available through § 1983 includes declaratory or injunctive relief E.g.
Wilkinson, 544 U.S. 74. The Declaratory Judgment Act. 28 U.S.C. §§ 2201,
applies only if federal jurisdiction exists independently, such as under § 1983.
Guaranty Nat. Ins. Co. v. Gates, 916 F.2d 508,511 (9th Cir. 1990).
However, 28 U.S.c. § 1915(g) limits this right for prisoner-litigants who
have previously filed three or more actions or appeals that were dismissed as
frivolous or malicious or for failure to state a claim. A prisoner subject to §
1915(g) must make plausible allegations that he is "under imminent danger of
serious physical injury" in order to bring § 1983 claim. 28 U.S.C. § 1915(g);
Andrews y. Cervantes, 493 F.3d 1047, 1055 (2007).
Ellenburg has filed multiple § 1983 claims with this Court and is subject to
the restrictions of § 1915(g). See CV 9-106-M-DWM-JCL, dkt # 4. His pleading
and objections lack any showing he is "under imminent danger of serious physical
injury." Thus, he may not bring a § 1983 claim in this court.
The Court finds no other basis for federal jurisdiction and no clear error in
Judge Strong's remaining [mdings and recommendations.
Accordingly, IT IS HEREBY ORDERED:
L Judge Strong's Findings and Recommendation (dkt # 3) are adopted in

full.
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2. Ellenburg's motion to proceed in forma pauperis (dkt # 2) is DENIED.
3. The pleading (dlct # 1) is DISMISSED for lack of federal jurisdiction.
4. The Clerk of Court is directed to enter a judgment of dismissal.
5. The Clerk of Court is further directed to have the docket reflect that the
Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate
Procedure that any appeal of this decision would not be taken in good faith.
Dated this!1!:.. day of December, 2011.

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11 y, District Judge
Di trict Court

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