Weaver v. State of Montana

Filing 5

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 2 in full. 1 Complaint is DISMISSED WITH PREJUDICE; Weaver's Motion for appointment of counsel 4 is DENIED as moot. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g), and any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 6/5/2012. Mailed to Weaver. (TAG, )

FILED

JUN 052012
s:'ATRICK E. DUFFY, CLERK
DEPuTY ClERI<' MISSOULA

IN THE \JNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

WILLIAM LARRY \VEA VER,

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Plaintiff,
VS.

STATE OF MONTANA,

Defendants.

CV 12-69-M-DLC-JCL

ORDER

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PlaintiffWilJiam Larry Weaver has filed a Complaint under 42 U.S.c. §
1983 alleging he was unconstitutionally extradited from the State of Georgia to
Montana to face homicide charges in 1997. Weaver is a state prisoner proceeding
pro se.
United States Magistrate Judge Jeremiah C. Lynch conducted preliminary
screening of the Complaint as required by 28 U.S.C. § 1915(e)(2). Under that

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statute, the court engages in a preliminary screening to assess the merits of the
elaims and identify cognizable claims, or dismiss the complaint or any portion
thereof ifthe complaint is frivolous, malicious, or fails to state a claim upon which
relief can be granted.
Judge Lynch issued Findings and Recommendations in which he
recommends dismissal of the Complaint with prejudice as time-barred under the
three-year statute of limitations for claims filed under 42 U.S.c. § 1983. Because
the conduct Weaver complains of occurred nearly fifteen years ago, Judge Lynch
determined that the untimeliness of the Complaint is a defect that cannot be cured
by amendment.
Plaintiff Weaver timely objected, thereby preserving his right to de novo
review of the record. 28 U.S.c. § 636(b)(1). Weaver's objections fail to address
the legal basis for Judge Lynch's Findings and Recommendations. He argues for
the opportunity to make a showing of actual innocence, but a showing of actual
innocence does not enable a plaintiff to escape the application of the statute of
limitations for a § 1983 claim. Moreover, Plaintiff received a full opportunity to
establish actual innocence on a petition for habeas corpus filed in this Court under
case number CV 06-94-M-DWM, in which United States District Judge Donald
W. Molloy concluded that Weaver failed to meet the actual innocence standard.
Upon de novo review, the Court can find no clear error with Judge Lynch's

Findings and Recommendations (Doc. No.2) and therefore adopts them in fulL
Accordingly, [T IS HEREBY ORDERED thatthe Complaint is
DISMISSED WITH PREJUDICE as barred by the statute of limitations.
IT IS FURTHER ORDERED that Weaver's motion for appointment of
counsel (Doc. No.4) is DENIED as moot.
The Clerk of Court shall have the docket reflect that the dismissal counts as
a strike pursuant to 28 U.S.c. § 1915(g) because Plaintiff has failed to state a
claim upon which relief may be granted.
The Clerk of Court shall close this matter and enter judgment pursuant to
Rule 58 of the Federal Rules of Civil Procedure.
The Clerk of Court shall 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. The record makes plain the instant Complaint is frivolous
as it lacks arguable substance in law or fact.
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DATED this ~_ day of June, 2012.

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Dana L. Christensen, District Judge
United States District Court

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