Meyer v. Boylan et al

Filing 7

ORDER denying 6 Motion for Reconsideration and ADOPTING 4 FINDINGS AND RECOMMENDATIONS. Meyer's Complaint 2 is DISMISSED for failure to state a claim. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). The court certifies that any appeal would not be taken in good faith. Signed by Judge Donald W. Molloy on 1/4/2012. Mailed to Meyer. (TAG, )

FILED
JAN 0 4 2012
PATRICK E. DUFFY. CLERK
By DEPUTY CLERK. MiSSOULA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

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TIMOTHY JON MEYER,
Plaintiff,

vs.
SUZY BOYLAN, Missoula County
Attorney's Office; DAWN MARIE
KELLMER, JOSHUA V AN DE
WETERING, MISSOULA COUNTY
DETENTION FACILITY
ADMINISTRATION STAFF, and
MISSOULA COUNTY PUBLIC
DEFENDER'S OFFICE,
Defendants.

CV-11-138-M-DWM-JCL

ORDER

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This Order addresses the two items pending in this matter: (1) what has
been construed as Plaintiff Timothy Meyer's Motion for Reconsideration of the
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Court's Collection Order directing the Missoula County Detention Facility to
collect partial payments for the $350.00 filing fee in this action (dkt # 6), and (2)
the Findings and Recommendations ofMagistrate Judge Jeremiah C. Lynch (dkt #
4).
On October 14,2011, Meyer filed a Motion for Leave to Proceed in forma
pauperis and a Complaint alleging violations of his federal constitutional rights
under 42 U.S.C. § 1983. Judge Lynch entered Findings and Recommendation on
December 7, 2011, recommending dismissal of Meyer's Complaint for failure to
state a claim upon which relief may be granted. Meyer did not file written
objections.

A. Meyer's Motion for Reconsideration of tbe Court's Collection Order
On page 2 of the Complaint form filed by Meyer, the instructions indicate
that prisoners proceeding in forma pauperis are required to pay the full flling fee
in installments. I However, Meyer asks that the collection order, dkt # 5, be
"overturned" and that his $24.00 be returned because he thought the form was to
waive the flling fee. He asserts that ifhe had known he would be charged for
flling the lawsuit, he would not have done it.

lMr. Meyer nsed an old form which indicated that the filing fee was $150.00, that fee was
raised to $350.00 on April 9, 2006. Regardless, the form clearly indicates that the filing fee
would need to be paid in installments.

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Given that the fonns filed by Meyer clearly indicated that the filing fee
would need to be paid in installments even ifhe were granted leave to proceed in
fonna pauperis, the Court cannot accept Meyer's argument that he was unaware of
the filing fee obligation.

B. Tbe Findings and Recommendations of tbe Magistrate Judge
Meyer did not timely object to the Findings and Recommendations, and so
has waived the right to de novo review ofthe record. 28 U.S.c. § 636(b)(1). This
Court will review the Findings and Recommendation 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 finn conviction
that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427
(9th Cir. 2000).
Meyer's Complaint alleged that Defendants violated his federal
constitutional rights in the context of three prosecutions in state district court.
Concerning the claims arising from the first prosecution, Judge Lynch found that
absolute prosecutorial immunity protected the alleged actions of Defendant Suzy
Boylan because she was acting within her role as Assistant County Attorney. He
also noted that Meyer's public defenders, Mr. Van de Wetering and the Missoula
County Public Defenders Office, are not state actors and thus are not subject to §
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1983 liability. Meyer's claims arising from his conviction in the second
prosecution are barred by the Heck doctrine, because his conviction has not been
reversed, declared invalid, expunged, or called into question by a habeas writ.
The claims arising from the third prosecution are barred by the doctrine of
abstention because the case is still pending in state court, the state has an interest
in enforcing state laws, and Meyer may raise his federal questions and concerns in
the state proceeding. Younger v. Harris, 401 U.S. 37 (1971); Hirsh v. Justices of
the SupremeCourt ofthe State of Cal" 67 F.3d 708, 712 (9th Cir. 1995).
Accordingly, Meyer has failed to state any claim upon which relief may be granted
by this Court.
After reviewing Judge Lynch's Findings and Recommendations, I fmd no
clear error in his reasoning or conclusions.
IT IS HEREBY ORDERED:

I. Plaintiffs Motion for Reconsideration (dkt # 6) is denied. The Court's
Order that he pay the filing fee remains in effect.
2. Judge Lynch's Findings and Recommendations (dkt # 4) are adopted in

full.
3. Meyer's Complaint (dkt # 2) is DISMISSED for failure to state a claim
upon which relief may be granted.
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4. The Clerk of Court is directed to close this matter and enter judgment
pursuant to Rule 58 of the Federal Rules of Civil Procedure.
5. The Clerk of Court is further directed to have the docket reflect that the
dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g) because the filing is
malicious and Mr. Meyer failed to state a claim upon which relief may be granted.
6. The Clerk of Court is also directed to have the docket reflect that the
Court certifies pursuant to Fed. R. App. P. 24(a)(3)(A) that any appeal of this
decision would not be taken in good faith because the Complaint is frivolous.
Dated this

~y of January, 2012.

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