Aker v. Powell County et al
Filing
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ORDER ADOPTING 4 FINDINGS AND RECOMMENDATIONS; denying 1 Motion for Leave to Proceed in forma pauperis; DISMISSING 2 Complaint. Signed by Judge Dana L. Christensen on 6/18/2015. Mailed to Aker. (TAG, )
FILED
JUN 1 8 2015
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
Cieri<, U.S. District Court
District Of Montana
Missoula
CV 15-33-H-DLC-JTJ
JIMMIE LEE AKER,
Plaintiff,
ORDER
vs.
POWELL COUNTY, MACO
INSURANCE, JOHN DOE 1-5,
Defendants.
United States Magistrate Judge John Johnston entered his Findings and
Recommendation on May 12, 2015, recommending that Plaintiff Aker's Motion to
Proceed in F orma Pauperis be denied and Complaint dismissed for failing to clear
the in forma pauperis pre-screening bar set by 28 U.S.C. § 1915. Judge Johnston
found Aker' s Complaint cannot proceed in federal court whether he is attempting
to (1) appeal a state court decision or (2) initiate a new case regarding the events
alleged in the Complaint, because either attempt lacks merit. "A district court may
deny leave to proceed in forma pauperis at the outset if it appears from the face of
the proposed complaint that the action is frivolous or without merit." Tripati v.
First Nat'/ Bank & Trust, 821F.2d1368, 1370 (9th Cir. 1987). Although Aker
has filed a document which may be construed as objections to the Findings and
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Recommendation, the objections are perfunctory and general in nature, and
therefore lack the specificity required to entitle Aker to de novo review under 28
U.S.C. § 636(b)(l). Roslingv. Kirkegaard, 2014 WL 693315 at *3 (D. Mont. Feb.
21, 2014). The Court will therefore review the record for clear error. McDonnell
Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.
1981 ). Clear error exists if the Court is left with a "definite and firm conviction
that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427
(9th Cir. 2000). For the reasons explained, the Court adopts Judge Johnston's
Findings and Recommendation in full.
Aker' s Motion to Proceed on Appeal is presented to this Court on a
Montana Supreme Court form, identifies Aker as the "Appellant," (Doc. 1 at 1),
and states he believes the state district court made the following mistakes: (1)
dismissed his case without just cause, (2) relied on false information from the
county attorney, and (3) presented misleading information on the statute of
limitations. Attached to the Motion to Proceed on Appeal is a Complaint and
Demand for Jury Trial identifying the case number as DV 14-56, a state court case
number. Aker's Complaint alleges that on October 30, 2009, while carrying bags
of garbage down the stairs as an employee of the Powell County Courthouse, he
sustained serious injuries causing permanent disability as the result of a slip and
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fall. Aker asserts mediation was suspended in his personal injury case on May 17,
2011, following his conviction for felony sexual assault.
Judge Johnston found, and this Court agrees, that if Aker is attempting to
appeal a state court decision, this Court lacks appellate jurisdiction over state court
judgments and the case must be dismissed. See 28 U.S.C. § 1257. This
jurisdictional bar extends to complaints alleging an injury caused by a state court
judgment and seeking federal court review and rejection of that judgment. Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005); Skinner v.
Switzer, 562 U.S. 521, 131 S. Ct. 1289, 1297 (2011).
Judge Johnston alternatively found, and this Court agrees, that if Aker is
attempting to initiate a new suit against Powell County, MACO Insurance, and
John Does 1-5, his Complaint fails to present a valid basis for subject matter
jurisdiction. 28 U.S.C. § 1331, 1332; Fed.R.Civ.P. 12(h)(3); United Investors Life
Ins. Co. v. Waddell & Reed Inc., 360 F. 3d 960, 967 (9th cir. 1977); Jensen v. City
of Oxnard, 145 F. 3d. 1078 (9th Cir. 1998). Accordingly, whether construed as an
appeal or a new suit, this Court lacks jurisdiction and the Complaint must be
dismissed. Because the Court lacks jurisdiction, it will not address whether Aker' s
claim is barred by the statute of limitations.
The Court finds no clear error in Judge Johnston's Findings and
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Recommendation. Aker' s Motion to Proceed in F orma Pauperis is denied. This
case is dismissed without prejudice for lack of jurisdiction.
IT IS ORDERED that Judge Johnston's Findings and Recommendation
(Doc. 4) are ADOPTED IN FULL. Aker' s Motion to Proceed in Forma Pauperis
(Doc. 1) is DENIED. Aker's Complaint (Doc. 2) is DISMISSED. This case is
CLOSED.
DATED this
18
#l
dayofJune,2
5.
ll.U.L.
~
Dana L. Christensen, Chief Judge
United States District Court
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