McAlpin v. Schweitzer et al

Filing 11

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. McAlpin's Complaint 1 is dismissed without prejudice 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 of this decision would not be taken in good faith. McAlpin's 8 Motion to Amend, and his 10 Motion to Appoint Counsel, are DENIED. Signed by Judge Dana L. Christensen on 11/15/2012. Mailed to McAlpin. (TAG, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

FILED

NOV 15 2012
CIe"!<. u.s District Court
DIstrict Of Montana
MissOUla

DOUGLAS SCOTT McALPIN,
Plaintiff,
vs.
BRIAN SCHWEITZER,
CHRIS HOFFMAN, SCOTT LEETE,
DARCY WOLF, and
LOREN HOCHAUL TER,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

CV 12-00114-M-DLC
ORDER

-----------------------)
Plaintiff Douglas Scott McAlpin filed a Complaint on June 28,2012,
alleging Defendants threatened, coerced, and compelled him to sign a violent
offender registration, arrested him without cause, and falsely and maliciously
charged him with failing to maintain a violent offender registration. (Doc. 2 at 5.)
He asserts he has been falsely imprisoned for nine months and seeks injunctive
relief. (Doc. 2 at 6.)
United States Magistrate Judge Jeremiah Lynch entered Findings and
Recommendations on August 6, 2012. (Doc. 3.) Judge Lynch recommended that
McAlpin's Complaint be dismissed without prejudice, judgment in favor of
Defendants be entered, this action count as a strike pursuant to 28 U.S.C. §
1

1915(g), and the docket reflect that pursuant to Fed.R.App.P. 24(a)(3)(A) any
appeal of this decision would not be taken in good faith. (Doc. 3 at 12-13.)
McAlpin timely objected and is therefore entitled to de novo review of the
specified findings or recommendations to which he objects. 28 U.S.C. § 636(b)(1).
The portions of the Findings and Recommendations not specifically objected to
will be reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus.

Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). For the reasons stated below,
this Court adopts Judge Lynch's Findings and Recommendations in full.
I.

Procedural History

McAlpin registered as a violent offender in Montana on December 9,2005,
based on a 1992 conviction in Tennessee for manslaughter. Anders Br. 2
(November 10, 2011). On August 1, 2010, McAlpin was arrested in Ravalli
County, and on August 5, 2010, an Information was filed on two counts. (Doc. 2
at 5.) On August 19,2010, McAlpin was charged by an Amended Information
with two counts of Failure to Maintain Violent Offender Registration. Anders Br.
1. Count I alleged McAlpin failed to maintain his registration on or about August
1, 2010. Id. Count II alleged McAlpin failed to maintain his registration between
April 1, 2006, and December 31, 2006. Id. The district court dismissed Count I
for failure to show probable cause. Id. at 5. Ultimately, McAlpin changed his plea
and pled guilty to Count II, reserving his right to appeal the motion to dismiss as to

2

that count. Id.at 6. The district court sentenced McAlpin to the custody of the
Department of Corrections for three years suspended. Id. McAlpin is currently
incarcerated on a revocation of his suspended sentence from the August 2010
arrest and conviction. (Doc. 5 at 7.)
McAlpin appealed his 2010 conviction in May of2011. (Doc. 5 at 6.) On
November 10,2011, McAlpin's lawyer filed an Anders Brief, asserting there were
no non-frivolous issues. Anders Br. 1. McAlpin filed a response to the Anders
motion on December 8, 2011. (Doc. 5 at 7.) The Montana Supreme Court
dismissed the appeal on December 27, 2011, concluding an appeal would be
wholly frivolous. (Doc. 5 at 7.)
II.

Statute of Limitations

Because § 1983 contains no statute of limitations, federal courts apply the
state statute of limitations governing personal injury actions. Wilson v. Garcia,
471 U.S. 261, 280 (1985). Montana's statute of limitations for personal injury
actions is three years. Mont. Code Ann. § 27-2-204(1). In his objections,
McAlpin asserts his allegations regarding the 2005 events were meant to provide
background information, not to state a claim, and that the events are relevant
because Defendants started a conspiracy in 2005 that continued until 2010. (Doc.
6 at 3.)

3

To state a claim for a conspiracy under § 1983, a plaintiff must state specific
facts to support the existence of the alleged conspiracy. Burns v. Co. a/King, 883
F.2d 819, 821 (9th Cir. 1989) (citing Coverdell v. Dept. a/Soc. & Health Serv., 834
F.2d 758, 769 (9th Cir. 1987)). A plaintiff must establish both the existence of an
agreement among the defendants to deprive him of his constitutional rights and an
actual deprivation of those rights resulting from the agreement. Ting v. U.S., 927
F .2d 1504, 1512 (9th Cir. 1991). McAlpin has failed to prove a conspiracy. To the
extent McAlpin cited these events to state a claim, the allegations are barred by the
statute of limitations.
III.

Heck Doctrine

Pursuant to Heck v. Humphrey, "when a state prisoner seeks damages in a
section 1983 suit, the district court must consider whether a judgment in favor of
the plaintiff would necessarily imply the invalidity of his conviction or sentence."
512 U.S. 477, 487 (1994). If it would imply the invalidity, "the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated." Id.
At the center of McAlpin's Complaint is his assertion that he is not a violent
offender (doc. 2 at 5), which he also argued in his motion to dismiss in district
court (Anders Br. 2). The district court concluded McAlpin was a violent offender
as defined in Montana Code Annotated § 46-23-502. Anders Br. 5. This
4

determination has not been overturned or otherwise declared invalid. The Montana
Supreme Court's dismissal of McAlpin's appeal constitutes an appeal despite
McAlpin's argument that "essentially there was no appeal." (Doc. 6 at 6.)
McAlpin's allegations imply the invalidity of his conviction. Any
determination about McAlpin's status as a violent offender, including a
determination on the dismissed Count I of the Information, is Heck-barred. The
only way for him to bring these claims is through post-conviction or habeas relief.
The Defendant asserts he has brought habeas petitions in state and federal court,
which are pending. (Doc. 6 at 4; McAlpin v. Leete, et al., Cause No. CV 12-143­
M-DLC-JCL (Aug. 28,2012)).
IV.

Younger Doctrine

To the extent McAlpin is challenging his probation revocation, his claim is
barred by the Younger doctrine. Younger v. Harris and "its progeny espouse a
strong federal policy against federal-court interference with pending state judicial
proceedings absent extraordinary circumstances." Middlesex Co. Ethics Comm. v.
Garden St. Bar Assn., 457 U.S. 423,431 (1982). Abstention is appropriate where:
(1) there is an ongoing state judicial proceeding; (2) the proceedings implicate
important state interests; and (3) there is adequate opportunity in the state
proceedings to raise constitutional challenges. Id. at 432. To these threshold
requirements, the Ninth Circuit "recently articulated an implied fourth requirement
5

that (4) the federal court action would 'enjoin the proceeding, or have the practical
effect of doing so. '" Potrero Hills Landfill, Inc. v. Co. ofSolano, 657 F.3d 876,
882 (9th Cir. 2011) (quoting AmerisourceBergen Corp. v. Roden, 495 F.3d 1143,
1148-49 (9th Cir. 2007)).
The four requirements for abstention are met here. Though a violent
offender act may be a civil regulatory program, an offender who fails to comply
with the act may be criminally prosecuted for that failure. Smith v. Doe, 538 U.S.
84, 102, 105 (2003). Moreover, the Younger doctrine sometimes applies to
ongoing civil proceedings. Huffman v. Pursue, 420 U.S. 592, 607 (1975)
(concluding the district court should have applied Younger in determining whether
to proceed in nuisance proceeding).
The state has an important interest in enforcing state and local laws. The
Younger doctrine "stemmed from the fear that interference with a state criminal

prosecution would disrupt the exercise of a basic state function, 'prohibiting the
State from carrying out the important and necessary task of enforcing these laws
against socially harmful conduct that the State believes in good faith to be
punishable under its laws and Constitution. '" Miofsky v. Super. Ct. ofSt. ofCal.,
in andfor Sacramento Co., 703 F.2d 332,336 (9th Cir. 1983) (quoting Younger v.
Harris, 401 U.S. 37, 51-52 (1971)). McAlpin could still file an appeal regarding

his current incarceration and could raise his constitutional challenges in that
6

proceeding. Action by this Court would practically enjoin the state proceeding.
McAlpin's claim challenging his probation revocation is barred by Younger, and
abstention is appropriate.
V.

False Arrest, False Imprisonment Claim

McAlpin alleges that no warrant could be issued against him since he is not
a legally registered violent offender. (Doc. 6 at 3.) He further alleges Defendants
unlawfully and falsely arrested and imprisoned him. (Doc. 6 at 3,5.)
A false imprisonment claim based upon an arrest without a warrant requires
allegations of an arrest without process, imprisonment, and damages. Garcia v.

City o/Merced, 637 F.Supp.2d 731, 752 (E.D.Cal. 2008). To prevail on a claim
for false arrest and imprisonment, a plaintiff must demonstrate that there was no
probable cause to arrest him. Cabera v. City o/Huntington Park, 159 F.3d 374,
380 (9th Cir. 1998). "[A] warrantless arrest by a law officer is reasonable under
the Fourth Amendment where there is probable cause to believe that a criminal
offense has been or is being committed." Devenpeck v. Alford, 543 U.S. 146, 152
(2004). The arresting officer's "subjective reason for making the arrest need not
be the criminal offense as to which the known facts provide probable cause." Id. at
153.
The district court determined there was probable cause for the arrest of
McAlpin as to Count II. The existence of probable cause defeats McAlpin's
7

claims of false arrest and imprisonment. These claims are also Heck-barred
because any determination on whether or not McAlpin is a violent offender would
imply the invalidity of his conviction.
VI.

Request for Attorney

No one, including incarcerated prisoners, has a constitutional right to be
represented by appointed counsel when they choose to bring a civil lawsuit under
42 U.S.C. § 1983. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997),
withdrawn on other grounds, 154 F.3d 952, 962 (9th Cir. 1998). In fact, unlike in
criminal cases, a court does not have the power to simply appoint an attorney. 28
U.S.C.§ 1915 only allows a court to "request" counsel to represent a litigant who is
proceeding in forma pauperis. 28 U.S.C. § 1915(e)(1); Mallard v. U.S. Dist. Court,
490 U.S. 296, 310 (1989). Further, a judge may only request counsel for an
indigent plaintiff under "exceptional circumstances." 28 U.S.C. § 1915(e)(1)
(formerly 28 U.S.C. § 1915(d)); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
1991). A finding of exceptional circumstances requires an evaluation of both "the
likelihood of success on the merits and the ability of the petitioner to articulate his
claims pro se in light of the complexity of the legal issues involved." Neither of
these factors is dispositive and both must be viewed together before reaching a
decision. Terrell, 935 F.2d at 1017 (citing Wilborn v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986) (citations omitted)).
8

McAlpin has not yet made adequate showings of a likelihood of success on
the merits or of his inability to articulate his claims to warrant a request of counsel.
Since his claims are dismissed by the Court, this request is denied as moot.
VII.

Claims of Reprisal

Rule IS of the Federal Rules of Civil Procedure provides that a party may
amend his pleading once as a matter of course at any time before being served with
a responsive pleading. Fed. R. Civ. P. lS(a)(1). The Court will construe Plaintiffs
September 20, 2012, submission (doc. 6) as his first motion to amend his
Complaint. That motion will be denied because McAlpin cannot amend his
Complaint to bring new, unrelated claims.
Accordingly, Plaintiff may now only amend by leave of court or by written
consent of the opposing party. "The court should freely give leave when justice so
requires." Fed. R. Civ. P. IS(a); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
2000) (en banc). "The grant or denial of an opportunity to amend is within the
discretion of the District Court." Farnan v. Davis, 371 U.S. 178, 182 (1962).
While leave to amend should be freely granted, the United States Supreme Court
has also noted times where such an amendment might not be allowed, "such as
undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of the amendments, futility of amendment, etc."
9

"Futility alone can justify the denial ofa motion to amend." Nunes v. Ashcroft,
375 F.3d 805, 808 (9th Cir. 2004) (citing Bonin v. Calderon, 59 F.3d 815, 845 (9th
Cir. 1995)).
In his Claims of Reprisal dated September 20,2012, November 5, 2012, and
November 8, 2012, McAlpin seeks to bring new claims unrelated to the allegations
brought in his original complaint. This is improper under the Federal Rules of Civil
Procedure and will not be allowed. As one court has noted, "where, however, the
complaint, as amended, would radically alter the scope and nature of the case and
bears no more than a tangential relationship to the original action, leave to amend
should be denied." Miss. Assoc. o/Coops. v. Farmers Home Admin., 139 F.R.D.
542,544 (D.D.C. 1991). McAlpin's allegations in the Claims of Reprisal would
radically alter the scope and nature of the case and are only tangentially related to
the Complaint. Any allegations or evidence about McAlpin's treatment at the
Montana State Prison must be brought in a new Complaint. McAlpin fails to name
any defendants in the original Complaint who are directly involved with his
treatment at the Montana State Prison.
McAlpin fails to state a claim upon which relief may be granted. His claims
are barred by the Heck and Younger doctrines. Amendment will not cure the
defects in McAlpin's Complaint.

10

There is no clear error in Judge Lynch's remaining analysis. Accordingly,
IT IS HEREBY ORDERED:
l.

Judge Lynch's Findings and Recommendations (doc. 5) are adopted in

full.
2.

McAlpin's Complaint (doc. I) is dismissed without prejudice for

failure to state a claim upon which relief may be granted. 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.

McAlpin's Motion to Amend (doc. 8) is DENIED.

4.

McAlpin's Motion to Appoint Counsel (doc. 10) is DENIED.

5.

The docket shall reflect that this dismissal counts as a strike pursuant

to 28 U.S.C. § 1915(g) for failure to state a claim.
6.

The docket shall 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.

DATED this

15~ day of November, 2

1 .

Dana L. Christensen, Distric Judge
United States District Court
11