Meismer v. Smith et al

Filing 9

ORDER ADOPTING 4 FINDINGS AND RECOMMENDATIONS; denying 7 Motion to Amend. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g) Signed by Judge Dana L. Christensen on 10/15/2020. Transmitted electronically to prison for delivery to Plaintiff. (TAG)

Case 6:20-cv-00041-DLC Document 9 Filed 10/15/20 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
BRANDEN CONRAD MIESMER,
CV 20–41–H–DLC
Plaintiff,
ORDER

vs.
DET. SMITH, DET. GANGE, and
DET. O’MALLEY,
Defendants.

Before the Court is the Findings and Recommendations of United States
Magistrate Judge John Johnston. (Doc. 4.) Judge Johnston recommends that the
Court: (1) dismiss Plaintiff Branden Conrad Miesmer’s Complaint as barred by the
applicable statute of limitations; (2) certify that no appeal from this disposition
could be taken in good faith; and (3) direct the Clerk of Court to have the docket
reflect that dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). (Id. at 4.)
Miesmer timely objected to the Findings and Recommendations and concurrently
moved to amend his Complaint. (Docs. 6, 7, 8.) Consequently, the Court will
review the record de novo. 28 U.S.C. § 636(b)(1)(C).

-1-

Case 6:20-cv-00041-DLC Document 9 Filed 10/15/20 Page 2 of 12

BACKGROUND
Miesmer claims that Defendants violated various constitutional provisions 1
when they failed to read and explain his Miranda rights before interrogating him
on September 9, 2015. (Doc. 2 at 5.) Instead, he says, they “mearly (sic) slid
[him] a piece of paper” containing Miranda’s warnings, which he signed without
reading or understanding “due to lack of sleep, food, and water from the [three]day manhunt” that eventually led to his capture. (Id.) Ultimately, Miesmer pled
guilty and was sentenced to state prison on the allegation that precipitated his
arrest. (Id. at 4–5.)
Without reaching the merits, Judge Johnston determined that Miesmer’s 42
U.S.C. § 1983 Complaint is barred by the statute of limitations. (Doc. 4 at 5.)
Conceding that the three-year statutory period has passed since the purported
Miranda violation occurred in September 2015, Miesmer argues in his Objection
that the Court should apply the doctrine of equitable tolling to save his claim from

1

Throughout his filings, Miesmer lists varying combinations of the Fourth, Fifth, Sixth, Eighth,
and Fourteenth Amendments as the bases for his civil rights claim against Defendants. (See
Docs. 2, 6, 8.) However, his singular factually supported allegation is that he “was deprived of
[his] [c]onstitutional rights due to [his] miranda (sic) rights not being read.” (See, e.g., Doc. 7 at
1.) Miesmer fails to explain how an allegedly inadequate Miranda warning implicates any
constitutional provision beyond the Fifth and Fourteenth Amendments. Bare charges of
discrimination, deliberate indifference, and deprivation of trial counsel (Doc. 7-1) are not
enough. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (explaining that although “legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations”). Because it cannot fill the factual voids Miesmer’s pleadings present as they relate
to claims arising under the Fourth, Sixth, and Eighth Amendments, the Court considers the only
factually supported claims, which arise under the Fifth and Fourteenth Amendments.
-2-

Case 6:20-cv-00041-DLC Document 9 Filed 10/15/20 Page 3 of 12

dismissal. (Doc. 6-1 at 1.) He urges the Court to toll the statute of limitations to
account for: (1) his imprisonment; (2) the “extraordinary circumstances” of the
issuance of a federal indictment while he was in state custody and the death of his
mother; and (3) his mental incapacity. (Doc. 6 at 4–5.)
DISCUSSION
Before considering Miesmer’s Objection as it relates to the statute of
limitations, the Court is compelled as a preliminary matter to address an issue that
Miesmer attempts to eliminate in his original Complaint (Doc. 2) but invigorates in
his proposed Amended Complaint (Doc. 7-2). That is the question of the Heck2
bar.
I
In his original Complaint, Miesmer emphasizes that his intent before this
Court is not to collaterally attack his outstanding murder conviction. (Doc. 2 at 5.)
To the contrary, setting aside the purported constitutional violations, he
acknowledges that “overwhelming evidence” led to his conviction: “multiple
witnesses, [he] plead (sic) guilty, [he] confessed on the stand, the murder weapon
was found on [him], and [he] admitted guilt in several letters that were
confiscated.” (Id.) Because of the weight of the evidence against him, Miesmer
explains, he has not advanced the instant claim on direct appeal, nor in post-

2

Heck v. Humphrey, 512 U.S. 477 (1994).
-3-

Case 6:20-cv-00041-DLC Document 9 Filed 10/15/20 Page 4 of 12

conviction proceedings. (Id.) However, in his proposed Amended Complaint,
Miesmer asserts that the purported Miranda violation led to his “wrongful
conviction.” (Doc. 7-1 at 5.) Nothing in the record reflects that Miesmer’s
outstanding murder conviction has been invalidated.
In Heck, the Supreme Court held that:
[I]n order to recover damages for allegedly unconstitutional conviction
or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983
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 . . . . .
A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under
§ 1983.
See Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (emphasis in original).
Therefore, a “district court must consider whether a judgment in favor of the
[§ 1983] plaintiff would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.” Id. at
487. On the other side of the coin then, “if the district court determines that the
plaintiff’s action, even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against [him], the action should proceed, in the
absence of some other bar to suit.” Id. (emphasis in original). Thus, under certain
circumstances, a plaintiff’s § 1983 claim is not Heck-barred despite the existence
-4-

Case 6:20-cv-00041-DLC Document 9 Filed 10/15/20 Page 5 of 12

of an outstanding criminal conviction against him. Jackson v. Barnes, 749 F.3d
755, 760 (9th Cir. 2014).
Those circumstances exist where an outstanding conviction derives from a
valid plea, rather than from a verdict obtained with the supposedly illegal evidence.
Ove v. Gwinn, 264 F.3d 817, 823 (9th Cir. 2001). In Ove, the § 1983 plaintiffs
were arrested on suspicion of drunk driving and consented to blood tests. Id. at
820. Following their arrests, one plaintiff pleaded guilty and the other pleaded
nolo contendere to the DUI charges against them.3 Id. They subsequently sued
city and state officials for, inter alia, illegally drawing their blood. Id. The court
concluded that the Heck bar did not apply, because the success of the action would
not necessarily invalidate their DUI convictions. Id. at 823. While the plaintiffs’
lawsuit concerned the way their blood was drawn, no blood evidence was
introduced against them in their underlying criminal cases, because they pleaded to
the charges. Id. Therefore, “the validity of their convictions [did] not in any way
depend on the legality of the blood draws.” Id.
So too here. Miesmer’s claim concerns the way in which his post-arrest
statement was compelled, but the statement at issue was not introduced against
him. Indeed, no evidence was introduced against him, because he pleaded guilty.

3

Prior to their pleas, the district court denied one plaintiff’s motion to suppress the results of the
blood test and simply removed the other plaintiff’s companion motion from its calendar. 264
F.3d at 820.
-5-

Case 6:20-cv-00041-DLC Document 9 Filed 10/15/20 Page 6 of 12

(Doc. 2 at 5.) Thus, his conviction derives from his plea, not from a verdict
obtained with supposedly illegal evidence. And, as in Ove, “conspicuously
missing” from the record here is any contention that Miesmer’s guilty plea was
illegal, involuntary, or without factual bases. See 264 F.3d at 823. Therefore,
because the validity of Miesmer’s conviction does not depend upon the legality of
the compelled statement, the Court finds that the Heck bar does not apply. 4
II
The Court turns then to the question of timing. As already discussed, Judge
Johnston and Miesmer are of one mind on the threshold issue here, agreeing that
his Miranda claim arose in September 2015, when Defendants allegedly failed to
adequately Mirandize Miesmer at the post-arrest interrogation. (Docs. 4 at 5; 6-1.)
Thus, they agree that the three-year statute of limitations has passed for his § 1983
claim. While the Court ultimately reaches the same conclusion, 5 it would not pin
the claim accrual date at September 2015.
4

The Court notes, however, that the way Miesmer pleads his proposed Amended Complaint
(Doc. 7-1) remains problematic, because he asks for compensatory damages for his “wrongful
conviction.” (Doc. 7-1 at 6–7.) “[T]o recover compensatory damages, . . . the § 1983 plaintiff
must prove not only that the [defendants’ conduct] was unlawful, but that it caused him actual,
compensable injury, which . . . does not encompass the ‘injury’ of being convicted and
imprisoned (until his conviction has been overturned).” Ove, 264 F.3d at 822 (internal citations
omitted). Again, nothing in the record indicates that Miesmer’s outstanding murder conviction
has been invalidated or otherwise overturned. Therefore, as the matter currently stands,
Miesmer’s allegedly “wrongful conviction” is not an injury for which he may recover
compensatory damages under the Heck corollary announced in Ove.
5
Because Miesmer lodges no objection to Judge Johnston’s finding on this point, the Court
reviews for clear error. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)
(en banc); Thomas v. Arn, 474 U.S. 140, 149 (1985). The Court agrees with Miesmer and Judge
-6-

Case 6:20-cv-00041-DLC Document 9 Filed 10/15/20 Page 7 of 12

“[T]he accrual date of a § 1983 cause of action is a question of federal law.”
Wallace v. Kato, 549 U.S. 384, 388 (2007). “[A]ccrual occurs when the plaintiff
has a complete and present cause of action, . . . that is, when the plaintiff can file
suit and obtain relief.” Mills v. City of Covina, 921 F.3d 1161, 1166 (9th Cir.
2019) (quoting Wallace, 549 U.S. at 388). In Chavez, the Supreme Court
explained that a Fifth Amendment violation does not occur until statements
compelled by police interrogations are “use[d] in a criminal case.” Chavez v.
Martinez, 538 U.S. 760, 767 (2003). Thus, “the mere use of compulsive
questioning, without more, [does not] violate[] the Constitution.” Id. After
Chavez, the Ninth Circuit clarified that “[a] coerced statement has been ‘used’ in a
criminal case when it has been relied upon to file formal charges against the
declarant, to determine judicially that the prosecution may proceed, and to
determine pretrial custody status.” Stoot v. City of Everett, 582 F.3d 910, 925 (9th
Cir. 2009).
On the record before the Court, it is unclear whether and when Miesmer’s
compelled confession was “used” in the criminal case against him as Stoot
contemplates; Chavez makes clear, however, that Defendants’ post-apprehension
questioning in September 2015, without more, did not violate the Fifth
Johnston that “the statute of limitations for all section 1983 claims [is] the forum state’s statute
of limitations for personal injury torts.” Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th
Cir. 1987). In Montana this period is three years. Mont. Code Ann. § 27–2–204.
-7-

Case 6:20-cv-00041-DLC Document 9 Filed 10/15/20 Page 8 of 12

Amendment. Hints exist, though, that Miesmer’s post-arrest confession was at
least a pretrial issue, inasmuch as it was the subject of a motion to suppress. (See
Doc. 2-1 at 33–34.) Therefore, and out of an abundance of caution, the Court
would apply a more generous accrual date of June 20, 2016—the date of the
representation hearing at which the trial court and counsel discussed the motion to
suppress, which had been apparently mooted by Miesmer’s decision to plead
guilty. (Id.) Still, Miesmer’s constitutional claims fall outside the three-year
statute of limitations. Accordingly, reviewing de novo, while the Court would
apply a different accrual date than Judge Johnston did, it ultimately agrees that
Miesmer’s § 1983 Complaint is barred by the applicable statute of limitations.
The Court next considers whether, as Miesmer argues, the doctrine of
equitable tolling or another tolling rule saves his claims. Miesmer explains that his
“inability to file timely [was] caused by the restrictions of imprisonment[.]” (Doc.
6 at 4.) In support, he cites various federal cases where courts have apparently
found equitable tolling applicable. (Id.) However, “[a]s with the limitations period
itself, [federal courts] borrow our rules for equitable tolling from the forum state.”
Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993). Thus, the Court
looks to Montana’s rules for direction.
Montana applies the doctrine of equitable tolling in the following
circumstance:
-8-

Case 6:20-cv-00041-DLC Document 9 Filed 10/15/20 Page 9 of 12

[W]hen a party reasonably and in good faith pursues one of several
possible legal remedies and the claimant meets three criteria: “(1)
timely notice to the defendant within the applicable statute of
limitations in filing the first claim; (2) lack of prejudice to [sic]
defendant in gathering evidence to defend against the second claim; and
(3) good faith and reasonable conduct by the plaintiff in filing the
second claim.”
Let the People Vote v. Bd. of Cty. Comm’rs of Flathead Cty., 120 P.3d 385, 389
(Mont. 2005) (alteration in original) (citations omitted). In other words, “while a
party is pursuing one of several legal remedies, the statute of limitations on the
remedies not being pursued is tolled.” Id. That circumstance simply does not exist
here. Miesmer does not argue that, while the statute of limitations ran on the
instant § 1983 action, he was pursuing an alternative legal remedy. Instead, he
admits that he did not know that he had a cognizable cause of action until 2020.
Furthermore, nothing in the record indicates that Defendants concealed the claim
from Miesmer while the period of limitation expired. See Schoof v. Nesbit, 316
P.3d 831, 840–41 (Mont. 2014) (applying the equitable tolling doctrine to
instances where a plaintiff is substantially prejudiced by a defendant’s concealment
of a claim, despite the exercise of diligence by the plaintiff); see also Mont. Code.
Ann. § 27–2–102(3) (setting out Montana’s discovery rule). Therefore, Montana’s
construction of the equitable tolling doctrine fails to save Miesmer’s claims from
expiration.

-9-

Case 6:20-cv-00041-DLC Document 9 Filed 10/15/20 Page 10 of 12

Additionally, Montana statutory law forecloses Miesmer’s arguments that
the accrual of his § 1983 claims should be tolled. First, “[l]ack of knowledge of
the claim or cause of action, or of its accrual, by the party to whom it has accrued
does not postpone the beginning of the period of limitation.” Mont. Code Ann.
§ 27–2–102(2). So, while the Court understands that Miesmer learned from inmate
Old-Horn in April 2020 that the use of his coerced statement may have violated the
Fifth Amendment, his hitherto lack of knowledge fails to turn back the statutory
clock. (See Doc. 6 at 3–4.) Second, even if Miesmer has been in state custody
since his 2015 arrest, nothing in Montana law tolls the three-year statute of
limitations to account for incarceration. Indeed, the 1995 Legislature explicitly
deleted the words “or imprisoned on a criminal charge or under a sentence for a
term less than life” from the statute that defines “disabilit[ies]” that are excluded
from “the time limited for commencing the action.” State v. Placzkiewicz, 36 P.3d
934, 936 n.1 (citing Mont. Code Ann. § 27–2–401(1)). Third, nothing in the
record indicates that Miesmer was committed pursuant to Montana Code
Annotated § 53–21–127 at the time his claim accrued. See Mont. Code Ann. § 27–
2–401 (stating that the period during which a person is committed for a mental
disorder may be excluded from the limitations period). Finally, while the Court is
sympathetic to the grief Miesmer felt following the death of his mother, it is
unaware of authority tolling the statute of limitations on this basis.
- 10 -

Case 6:20-cv-00041-DLC Document 9 Filed 10/15/20 Page 11 of 12

Therefore, the Court concludes that neither Montana’s version of the
equitable tolling doctrine nor its tolling statutes provide Miesmer relief for his
untimely Complaint. And, because nothing in his proposed Amended Complaint
fixes the temporal problem, the Court will deny his motion to amend. See Novak v.
United States, 795 F.3d 1012, 1020 (9th Cir. 2015) (affirming that “futility alone
can justify a court’s refusal to grant leave to amend”).
ORDER
Following de novo review, the Court agrees with Judge Johnston’s finding
that the applicable statute of limitations has expired in this case and thus adopts his
recommendations in full. Accordingly, IT IS ORDERED that:
(1)

Miesmer’s Motion and Declaratory in Support of Request to File

Amended Complaint (Doc. 7) is DENIED;
(2)

This matter is DISMISSED as time-barred;

(3)

The Clerk of Court is directed to close this matter and enter judgment

pursuant to Rule 58 of the Federal Rules of Civil Procedure;
(4)

Because it is time-barred, the Complaint lacks arguable substance in

law or fact; thus, the Clerk of Court is 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; and

- 11 -

Case 6:20-cv-00041-DLC Document 9 Filed 10/15/20 Page 12 of 12

(5)

The Clerk of Court is directed to have the docket reflect that this

dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g).
DATED this 15th day of October, 2020.

- 12 -