Payne v. Crowley et al

Filing 12

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 4/20/2018. Mailed to Payne (TAG)

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

APR 2 0 2018
Clef'!<, y.s. District Court
District Of Montana
Missoula

TYRONE EVERETT PAYNE,
CV 17-166-M-DLC-JCL

Plaintiff,
vs.

ORDER
KRISTIN CROWLEY, individual
capacity only and T.J. MCDERMOTT,
individual and official capacity,
Defendants.
United States Magistrate Judge Jeremiah C. Lynch entered Findings and
Recommendations in this case on December 14, 2017, recommending that Plaintiff
Tyrone Everett Payne's ("Payne") claims should be dismissed for failure to state a
claim.

Payne timely filed objections to the findings and recommendations.

Consequently, he is entitled to a de novo review of those findings and
recommendations to which he specifically objects.

28 U.S.C. § 636(b )(1 )(C).

This Court reviews for clear error those findings and recommendations to which no
party objects.

See McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,

656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 149 (1985).
Clear error exists if the Court is left with a "definite and firm conviction that a
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mistake has been committed."

United States v. Syrax, 235 F.3d 422, 427 (9th Cir.

2000) (citations omitted).
Judge Lynch found that Payne's claim for false arrest and imprisonment fails
because he was legitimately arrested for indecent exposure while he was on
probation.

After he was arrested, a petition was filed to revoke his probation, bail

was set, and he was sentenced to three years in prison with credit for time served.
Pursuant to Heckv. Humprey, 512 U.S. 477, 486-487 (1994), a§ 1983 claim is
without merit unless the plaintiff can show that his revocation violation has been
invalidated.

Here, Payne is unable to establish that his revocation has been

invalidated because it is still on appeal to the Montana Supreme Court.
In regards to Payne's claim regarding an improper urine test, Judge Lynch
found that this claim fails because his conditions of release that he agreed to
subjected him to urine testing.

The Court agrees with Judge Lynch's analysis on

both claims.
Payne objects and first argues that (1) Judge Lynch did not adequately
address his Swift v. California, 384 F.3d 1184, 1191-1192 (9th Cir. 2004) claim,
and (2) he was not on parole and was only on probation and thus could not have
been on a "parole hold."

(Doc. 6 at 2-9.)

Payne also contends that the parole

field warrant was not delivered to the detention facility within 12 hours following
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his arrest.

(Doc. 6 at 11.)

The Court finds that these arguments were already

made before and properly rejected by Judge Lynch.

Ramirez v. United States,

898 F.Supp.2d 659, 663 (S.D.N.Y.2012).
Next, Payne objects to Judge Lynch's finding that Payne's distinction
between parole and probation is "frivolous."

(Doc. 6 at 12.) Payne contends

that if "any officer wanted a violation of probation charge instead, they could have,
but did not, move the county attorney for Payne's return to custody, under § 4623-1012(1 ), after Payne's parole release, under§ 46-23-1023(2)." (Doc. 6 and
14.)

He argues that confining a person without a valid warrant is cognizable

under§ 1983.

The Court concludes that Judge Lynch properly found that even

though the arresting officers may have put him on a "parole hold," the distinction
between the words "parole" and "probation" does not warrant a § 1983 claim.
Moreover, Payne was being held due to his arrest for indecent exposure and open
container, and he does not dispute that there was probable cause to arrest him for
those offenses.
Finally, Payne objects that Judge Lynch did not analyze his claim against
Defendant McDermott and instead found that his urine test claim was meritless.
(Doc. 6 at 19.) The Court finds that Judge Lynch properly analyzed Payne's
claim regarding a violation of his due process rights for taking a urine test in its
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entirety, and that analysis included Defendant McDermott's alleged actions in the
Complaint.

The Court agrees with Judge Lynch that Payne's conditions of

probation included urine testing.
Payne further submitted five supplements to his objections.

(Docs. 7, 8, 9,

10, and 11.) The Court reviewed those supplements and finds no error in Judge
Lynch's findings.
Accordingly, IT IS ORDERED that Judge Lynch's Findings and
Recommendations (Doc. 4) are ADOPTED IN FULL.
1.

This matter is DISMISSED. The Clerk of Court is directed

to close this matter and enter judgment pursuant to Rule 58 of the Federal Rules of
Civil Procedure.
2.

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. The
record makes plain that the Complaint filed in this case is frivolous as it lacks
arguable substance in law or fact.
3.

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). Payne failed to state
a claim upon which relief may be granted and his pleadings present an "obvious
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bar to securing relief."
DATED this

1..0#,day of April, 2018.

Dana L. Christensen, Chief Judge
United States District Court

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