Poulson v. Bullock et al

Filing 10

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Kermit Ty Poulson. Motions terminated: 1 MOTION for Leave to Proceed in forma pauperis filed by Kermit Ty Poulson. FINDINGS AND RECOMMENDATIONS re 2 Complaint IFP/Prisoner filed by Kermit Ty Poulson. Order Setting: (, Amended Pleadings due by 12/4/2017.) Signed by Magistrate Judge Jeremiah C. Lynch on 11/7/2017. (TCL) Modified on 11/7/2017 copy mailed to Poulson (APP).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
KERMIT TY POULSON,

CV 17-140-M-DLC-JCL

Plaintiff,
ORDER, and FINDINGS
AND RECOMMENDATION

vs.

GOVERNOR STEVE BULLOCK, TIM
FOX, et al.,
Defendants.

I.

Introduction
Plaintiff Kermit Poulson, appearing pro se, filed a Motion to Proceed In

Forma Pauperis. Poulson submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). Because it appears he lacks sufficient funds to prosecute
this action IT IS HEREBY ORDERED that Poulson’s Motion to Proceed In Forma
Pauperis is GRANTED. This action may proceed without prepayment of the filing
fee, and the Clerk of Court is directed to file Poulson’s lodged Complaint as of the
filing date of his request to proceed in forma pauperis.
The federal statute under which leave to proceed in forma pauperis is
permitted — 28 U.S.C. § 1915 — also requires the Court to conduct a preliminary
screening of the allegations set forth in the litigant’s pleading. The applicable
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provisions of section 1915(e)(2) state as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
that–
(A) the allegation of poverty is untrue; or
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
The Court will review Poulson’s pleading to consider whether any of
Poulson’s claims can survive dismissal under the provisions of section 1915(e)(2),
or any other provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136,
1138, 1142 (9th Cir. 2005).
II.

Background
Invoking federal question jurisdiction under 28 U.S.C. § 1331, Poulson

commenced this action on September 28, 2017, alleging the numerous Defendants
violated various of his federal constitutional rights – he presumably seeks relief
under 42 U.S.C. § 1983. Poulson also advances a claim under the Americans with
Disabilities Act (“ADA”). Finally, he asserts he was subjected to libel and slander
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by some of the Defendants, thus invoking supplemental jurisdiction under 28
U.S.C. § 1367 over these claims which are grounded in Montana law.
Review of the complaint reflects that Poulson’s claims have their genesis in
two legal proceedings prosecuted against him in the Montana Eleventh Judicial
District Court, Flathead County. The first was a civil proceeding, Cause No. DN09-053, which culminated in the termination of Poulson’s parental rights with
respect to minor child M.M.F. See, In re M.M.F., 272 P.3d 125 (Table) (Mont.
2011).1 The second was a criminal proceeding which culminated in Poulson
entering a guilty plea on August 9, 2012, to felony criminal possession of
dangerous drugs in Cause No. DC 11-014A. See, State of Montana v. Poulson,
363 P.3d 1146 (Table) (Mont. 2015).2 Poulson is not currently in custody on that
conviction.
The Court reviews Poulson’s claims in the context of the referenced
proceedings.
III.

Discussion
Because Poulson is proceeding pro se the Court must construe his pleading

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The Court takes judicial notice of the existence of the Montana Supreme
Court’s opinion, that is not subject to reasonable dispute over its authenticity.
Fed. R. Evid. 201; Lee v. City of Los Angeles, 250 F.3d 668, 688-90 (9th Cir.
2001).
2

See footnote 1.
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liberally, and the pleading is held “to less stringent standards than formal
pleadings drafted by lawyers[.]” Haines v. Keener, 404 U.S. 519, 520 (1972). See
also Nusku v. Williams, 490 U.S. 319, 330 n.9 (1989). Although the Court has
authority to dismiss a defective pleading pursuant to 28 U.S.C. § 1915(e)(2),
a district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly
be cured by the allegation of other facts.
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995)).
A. In re M.M.F.
Based upon Poulson’s allegations, and gleaning facts from the above cited
cases, the Court understands Poulson’s claims to be as follows:
Defendant Stacy Boman was the deputy county attorney who prosecuted the
Youth in Need of Care (“YNC”) proceedings on behalf of M.M.F. and the State.
Defendant Leonard Smith was Poulson’s attorney in the YNC proceedings.
Defendant Kaon Mercer was one of Poulson’s appellate attorneys in the YNC
proceedings. Defendant Ted O. Lympus was the trial judge in the YNC
proceedings.3 Defendant Steve Bullock was the Montana Attorney General at the
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It appears from the referenced appellate opinions that Judge Lympus
actually presided over the criminal proceedings discussed, and that Judge Stewart
F. Stadler presided over the YNC proceedings. But for purposes of discussion it
will be presumed Judge Lympus was the presiding judge.
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time of the YNC proceedings.
Poulson alleges Boman slandered him in open court by stating “you cannot
be a good father because you drag your feet” apparently in reference to Poulson’s
claimed paraplegia. He also contends his attorney Smith, trial Judge Lympus,
appellate attorney Mercer and Attorney General Bullock are all liable for Boman’s
purported slanderous statement for allowing Boman to make the statement and not
otherwise seeking to purge the statement from the appellate record in the Montana
Supreme Court. For relief on his claim of slander, Poulson asks for affirmative
relief in the form of a written apology. (Doc. 2 at 9.)
Accepting Poulson’s allegations as true, his claims are nonetheless barred
by the two year statute of limitations applicable to the tort of slander in Montana.
See, Mont. Code Ann. § 27-2-204(3). As noted, Poulson’s parental rights were
terminated by the trial court in March 2011 – a judgment upheld on appeal by
opinion filed September 20, 2011. The alleged slanderous statement by Boman
and related conduct of the other Defendants necessarily occurred prior to
September 20, 2011, over six years prior to the filing of the complaint at hand.
It is noted that Poulson’s complaint as against Boman, Smith, Lympus,
Mercer and Bullock is periodically laced with references to the First and
Fourteenth Amendments. To the extent these references can be read to state a

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plausible claim under 42 U.S.C. § 1983 or the ADA, those claims would likewise
be barred by the three year period of limitations applicable to § 1983 claims. See,
Wilson v. Garcia, 471 U.S. 261, 269 (1985); Mont. Code Ann. § 27-2-401 (three
year period of limitations for personal injury actions).
Consequently, Poulson’s complaint, as plead, fails to state a claim on which
relief may be granted within the meaning of 28 U.S.C. § 1915(e)(2)(B)(ii) as
against Defendants Boman, Smith, Lympus, Mercer and Bullock. See, Von Saber
v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010)
(“A claim may be dismissed [for failing to state a claim] on the ground that it is
barred by the applicable statute of limitations [...] when ‘the running of the statute
is apparent on the face of the complaint.’”); see also, Tahoe-Sierra Preservation
Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764, 788 (9th Cir.
2000) (court may raise statute of limitations defense sua sponte).
Alternatively, Defendants Lympus, Boman and Bullock are entitled to
absolute immunity because the conduct of which Poulson complains – by his own
allegations – was undertaken in relation to the performance of these individuals’
judicial and prosecutorial duties respectively. See, Pierson v. Ray, 386 U.S. 547,
553-54 (1967) (Judges carrying out their judicial functions enjoy broad absolute
immunity); Gray v. Poole, 243 F.3d 572, 577 (D.C. Cir. 2001) (Government

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attorneys who prosecute child neglect actions perform “functions analogous to
those of a prosecutor [and] should be able to claim absolute immunity with respect
to such acts.”).
Finally, with respect to his parental rights, Poulson complains that the YNC
legal proceedings in In re M.M.F. resulted in the unlawful termination of his
parental rights. (Doc. 2 at 9.) In his prayer for relief, Poulson requests the Court
reinstate such rights. (Id.) But for the reasons discussed, this Court cannot
address that issue.
Poulson’s claims challenging the termination of his parental rights are
barred by the Rooker-Feldman doctrine. This doctrine, which derives its name
from two United States Supreme Court Cases – Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1983) – “stands for the relatively straightforward principle that federal
district courts do not have jurisdiction to hear de facto appeals from state court
judgments.” Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010).
Restated, “[i]f a federal [litigant] asserts as a legal wrong an allegedly erroneous
decision by a state court, and seeks relief from a state court judgment based on that
decision, Rooker-Feldman bars subject matter jurisdiction in federal district
court.” Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003). When a case is a

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forbidden “de facto appeal” the district court also lacks jurisdiction over all issues
which are “inextricably intertwined” with an issue resolved by the predicate
decision of the state court. Id., 341 F.3d at 1158.
Here, Poulson’s pleading seeks to, in substance, appeal and overturn a
decision of the Montana Supreme Court which upheld the termination of his
parental rights. Poulson’s allegations suggest the result of the YNC legal
proceedings in the state court and the Montana Supreme Court’s decision was
improper, and he seeks relief from that decision – reinstatement of his parental
rights. Therefore, his pleading is precisely the type of direct appeal or “de facto
appeal” of a state court decision that is barred by Rooker-Feldman. Poulson’s
claim is barred and subject to dismissal for lack of jurisdiction.
B. The Criminal Conviction
1.

Constitutional Validity of the Conviction

Based upon Poulson’s allegations and gleaning facts from State of Montana
v. Poulson, 363 P.3d 1146 (Table) (Mont. 2015), the Court understands Poulson’s
claims pertaining to his criminal conviction to be as follows:
Defendant Nick Aemissegger represented Poulson in his criminal
proceedings. Defendant Gabe Skibsrud is a private citizen who Poulson claims
framed him by planting marijuana in Poulson’s “bag” and then telephoned law

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enforcement – specifically Defendant Flathead County Sheriff Chuck Curry and
other unidentified members of Defendant Kalispell Police Department (also
referred to by Poulson as members of the Montana Drug Task Force) – that led to
Poulson’s arrest. Defendant Bullock was, at the time of Poulson’s convictions,
and remains, Governor of Montana.
At bottom, Poulson alleges Aemissegger provided him ineffective
assistance of counsel during the course of the criminal proceedings and ultimately
coerced Poulson to plead guilty, all in violation of his Sixth Amendment right to
counsel and Fourteenth Amendment right to due process. (Doc. 2 at 8.) As to
Skibsrud, Poulson asserts his conduct in framing Poulson for the drug charge
violated his right to due process. Sheriff Curry, in turn, is accused by Poulson of
violating his rights to due process and freedom from an illegal arrest by allowing
the prosecution of Poulson to proceed when Curry knew Poulson had been framed.
(Doc. 2 at 8.) For good measure, Poulson adds Governor Bullock as a defendant
asserting he is liable for not commuting Poulson’s sentence or granting him
clemency based upon the purported misconduct of Ken Parks, the deputy county
attorney who prosecuted the case against Poulson. (Doc. 2 at 9.)
Poulson does not seek monetary compensation against the referenced
individuals, which would be barred by the Heck doctrine because Poulson’s

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conviction has never been overturned. See, Heck v. Humphrey, 512 U.S. 477, 486
(1994). Rather, the relief he requests is in the nature of habeas corpus – he wants
his state criminal conviction vacated. (Doc. 2 at 9.) But habeas is the exclusive
vehicle for actions in the “core of habeas” and such claims may not be brought in a
§ 1983 action. Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016). And while a
habeas remedy is not available to Poulson because he is not in custody, see,
Carafas v. LaVallee, 391 U.S. 234, 238 (1968), his failure to diligently challenge
the constitutionality of his conviction under 28 U.S.C. § 2254 while he was in
custody does not allow him to now challenge the conviction by seeking
declaratory or injunctive relief under § 1983. This is so because the doctrine of
res judicata applies to actions brought under § 1983 challenging the validity of a
state court criminal judgment. Allen v. McCurry, 449 U.S. 90, 103-105 (1980).
Consequently, Poulson’s complaint fails to state a claim against Defendants
Aemissegger, Skibsrud, Curry, unidentified members of the Kalispell Police
Department or Bullock in relation to Poulson’s criminal conviction.
2.

The Straggling Claims
a.

Rick Hawk

Poulson states he hired private investigator Defendant Rick Hawk to find
out information regarding Defendant Skibsrud’s framing of Poulson on the

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referenced drug charge. (Doc. 2 at 8-9.) But the complaint fails to state any claim
whatsoever against Hawk. To the extent Poulson is suggesting Hawk may have
colluded with other Defendants in relation to Poulson’s arrest, Poulson would
again be improperly attempting to challenge the validity of his drug conviction via
§ 1983.
b.

ADA Claim

Based upon Poulson’s allegations and gleaning facts from State of Montana
v. Poulson, 363 P.3d 1146 (Table) (Mont. 2015), the Court understands Poulson’s
ADA claim as follows:
Poulson contends Defendant Kalispell Regional Medical Center (“KRMC”)
and certain, but unidentified, employees of that facility violated Poulson’s rights
under the ADA by refusing Poulson admission to the facility. (Doc. 2 at 7-8.)
Poulson makes essentially the same cursory allegations against Defendant
Pathways, LLC and the executive director of that facility, Gene Haire. (Doc. 2 at
7-8.)
Based upon Poulson’s allegations against his attorney Defendant
Aemissegger – to the effect that Aemissegger failed to advise trial Judge Lympus
of the purported ADA violations by KRMC and Pathways (doc. 2 at 8) – it is
evident the alleged acts of these two of which Poulson complains occurred

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sometime before or during the course of the criminal prosecution in 2012. Thus,
Poulson’s claims would be barred by the three year statute of limitations
applicable to ADA claims in Montana. Mont. Code Ann. § 27-2-204; Shriner v.
Wild Jack’s Casino, 2011 WL 6020160, *2 (D. Mont. 2011) (citing Donoghue v.
City of Orange, 848 F.2d 926, 930 (9th Cir. 1987)). As such, Poulson’s complaint
fails to state a claim on which relief may be granted within the meaning of 28
U.S.C. § 1915(e)(2)(B)(ii) as against Defendants KRMC, Pathways, LLC or Haire.
C. Poulson’s Hand Cycle
Poulson alleges Defendant Sheriff Curry “stole” his hand cycle. (Doc. 2 at
10.) As best as can be ascertained from Poulson’s complaint, it appears the hand
cycle may have been seized in conjunction with Poulson’s arrest on the referenced
drug charge – to which he plead guilty in 2012. It is conceivable, however, that
the seizure occurred at some other point in time. Poulson asserts he asked Curry
to take the cycle to Poulson’s house, but instead Curry sold the cycle at auction.
(Doc. 2. at 10.)
Construing Poulson’s allegations liberally, he asserts Curry’s conduct
constitutes a taking of property without due process of law in violation of the
Fourteenth Amendment remediable under § 1983, as well as conversion under
Montana law. To the extent Poulson seeks relief under § 1983, his claim would be

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subject to a three year statute of limitations. Mont. Code Ann. § 27-2-401; Wilson,
471 U.S. at 269. With respect to Poulson’s claim of conversion, a two year statute
of limitations applies. Mont. Code Ann. § 27-2-207(2); Johnson Farms, Inc. v.
Halland, 291 P.3d 1096, 1102 (Mont. 2012).
Poulson’s complaint does not expressly state the dates when the alleged
seizure and auction occurred. Thus the Court cannot definitively state whether the
period of limitations has run. Poulson will, however, be given the opportunity to
amend his complaint with respect to the hand cycle claim and state the specific
dates of the alleged seizure and auction.
IV.

Conclusion
For the reasons discussed, and in view of Poulson’s pro se status, the Court

will afford him an opportunity to file an amended complaint only as to his claims
against Chuck Curry. Therefore, IT IS ORDERED that on or before December 4,
2017, Poulson shall file his amended complaint as permitted herein. Pursuant to
Fed. R. Civ. P. 8(a), Poulson’s amended complaint shall set forth a short and plain
statement of his claims against Chuck Curry showing that he is entitled to relief.
IT IS FURTHER RECOMMENDED that all of Poulson’s other claims
against all other Defendants be DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii)
and (iii) for failure to state a claim upon which relief can be granted, or because he

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seeks relief against defendants who are immune from liability.
At all times during the pendency of this action, Poulson shall immediately
advise the Court of any change of address and its effective date. Such notice shall
be captioned “NOTICE OF CHANGE OF ADDRESS.” Failure to file a NOTICE
OF CHANGE OF ADDRESS may result in the dismissal of the action for failure
to prosecute pursuant to Fed. R. Civ. P. 41(b), or for failure to state a claim for
relief.
Poulson is advised that his failure to prosecute this action, to comply with
the Court’s orders, or to comply with the Federal Rules of Civil Procedure may
also result in a recommendation that this case be dismissed with prejudice
pursuant to Fed. R. Civ. P. 41(b). The Court may dismiss this case under Rule
41(b) sua sponte under certain circumstances. See, e.g., Link v. Wabash Railroad
Co., 370 U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United
States Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005).
DATED this 7th day of November, 2017.

Jeremiah C. Lynch
United States Magistrate Judge

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