Weller v. Seeley et al
Filing
15
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 7 in full. 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 Dana L. Christensen on 2/2/2016. Mailed to Weller. (TAG, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
FEB 02 2016
Clerk, U.S. District Court
District of Montana
Missoula
CV 15-73-H-DLC-JTJ
SHAWN HOWARD WELLER,
Plaintiff,
ORDER
vs.
KATHY SEELEY, MIKE MCGRATH,
TIM FOX, LEO GALLAGHER, and
DAN O'FALLON,
Defendants.
United States Magistrate Judge John Johnston entered his Order, Findings
and Recommendations in this matter on September 14, 2015, recommending
dismissal of Plaintiff Shawn Howard Well er' s ("Weller") Complaint. Well er filed
an objection to the Findings and Recommendations on October 10, 2015, and so is
entitled to de novo review of those findings and recommendations to which he
specifically objects. 28 U.S.C. § 636(b )(1 )(C). This Court reviews for clear error
those findings and recommendations to which no party objects. See McDonnell
Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.
1981); Thomas v. Arn, 474 U.S. 140, 149 (1985). "Clear error exists ifthe Court
is left with a definite and firm conviction that a mistake has been committed."
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United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
Notwithstanding the above, "[w]here a petitioner's objections constitute
perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original [pleading], the applicable
portions of the findings and recommendations will be reviewed for clear error."
Roslingv. Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21, 2014) (citations
omitted).
In his objections, which span twenty four pages, Weller fails to specify clear
objections with the Findings and Recommendations and instead attempts to
reargue perceived legal and factual defects with his original sentence and his
proceedings before the Montana Supreme Court. Weller also reasserts variations
of his arguments before Judge Johnston concerning the alleged violations of his
constitutional rights. 1 However, a close reading of these arguments reveal one
possible objection with Judge Johnston's Findings and Recommendations.
Judge Johnston found that Weller's section 1983 claims were barred, in
part, by the doctrine set forth inHeckv. Humphrey, 512 U.S. 477, 486-487 (1994).
1
Because these arguments attempt to rehash the original arguments set forth in his
Complaint, and fail to specify particular objections with the legal reasoning set forth in the
Findings and Recommendations, these arguments will be reviewed for clear error. See Rosling v.
Kirkegard, 2014 WL 693315 at *3 (D. Mont. Feb. 21, 2014) (citations omitted).
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This doctrine is premised on a prisoner seeking money damages. Id. at 487.
Weller maintains that, contrary to Judge Johnston's "beliefs," he is not asking for
money damages and, instead, seeks the transcripts from his 2012 revocation
proceeding. (Docs. 12 at 1; 12-1 at 23.) Thus, Weller's objection could be read
to argue that Heck only bars claims for money damages, and not claims seeking
relief in the form of transcripts.
This argument, however, has already been addressed. In Osborne v. District
Attorney's Office for the Third Judicial District, the Ninth Circuit clarified that
Heck, and its progeny, "applies both to actions for money damages and to those,
like this one, for injunctive relief." 423 F.3d 1050, 1053 (9th Cir. 2005) (citing
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) ("These cases, taken together,
indicate that a state prisoner's§ 1983 action is barred ... no matter the relief
sought (damages or equitable relief) ... if success in that action would necessarily
demonstrate the invalidity of confinement or its duration."). Thus, the relevant
factor in determining if a prisoner's action is barred under Heck is not the relief
sought, but whether granting the prisoner's claim would "necessarily imply the
invalidity of his conviction or sentence." Heck, 512 U.S. at 487.
Here, as stated in the Findings and Recommendations, Weller has filed ten
matters concerning his criminal proceedings and ultimate conviction in Lewis and
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Clark County. Weller is now suing the state officials associated with those matters
alleging they violated his constitutional rights. If Weller's request was granted,
this Court would be required to find that these officials violated his constitutional
rights. Such a finding would imply the invalidity of his conviction and is barred
by Heck. Weller's objection is overruled.
Accordingly, the Court reviews the remainder of Judge Johnston's Findings
and Recommendations for clear error. Finding none, the Court will dismiss
Weller's Complaint as frivolous, malicious, and for failure to state a claim.
Additionally, Weller has also filed two motions since the Findings and
Recommendations were issued. Because the Court is dismissing Weller's
Complaint, these motions will be denied as moot.
IT IS ORDERED that:
(1) Judge Johnston's Findings and Recommendations (Doc. 7) are
ADOPTED IN FULL.
(2) Plaintiff Shawn Howard Weller's Complaint (Doc. 2) is DISMISSED.
The Clerk of Court is directed to close this matter and enter judgment pursuant to
Rule 58 of the Federal Rules of Civil Procedure.
(3) All other motions (Docs. 13, 14) are DENIED as moot.
(4) The Clerk of Court is directed to have the docket reflect that the
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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. The
record makes plain the instant Complaint is frivolous as it lacks arguable
substance in law or fact.
( 5) The Clerk of Court should be directed to have the docket reflect that this
dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). Weller failed to
state a claim upon which relief may be granted, his claims are frivolous and
malicious.
DATED this
2 irrJ. day of February,
Dana L. Christensen, Chief Judge
United States District Court
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