Poulson v. Starnes et al

Filing 9

ORDER DISMISSING CASE. This dismissal counts as a strike pursuant to 28 U.S.C. 1915(g). Any appeal would not be taken in good faith. Signed by Judge Brian Morris on 3/5/2025. Mailed to Poulson at SEATAC address given on BOP website (TAG) Modified on 3/5/2025: forwarded to John Rhodes as directed (TAG).

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

CV-25-6-M-BMM

Plaintiff,
ORDER
vs.
STARNES, ET AL.,
Defendants.

Plaintiff Kermit Ty Poulson, proceeding without counsel, filed a Bivens
Complaint regarding his current criminal prosecution. (Doc. 2.) The Complaint
fails to state a claim for relief for two independent reasons and is dismissed.
Poulson is currently a defendant in a criminal action in the District of
Montana. U.S. v. Poulson, CR 23-56-M-DLC. The claims in his Complaint arise
entirely out of the indictment entered in his criminal case, and the evidence used to
obtain the indictment. (Doc. 2 at 4 – 5.) The Complaint fails to state a claim.
First, Poulson has named only immune defendants. (Doc. 2 at 2 – 3.)
Prosecutors, judges, and grand jurors are all immune from civil liability for the
actions taken when undertaking their duties. Lacey v. Maricopa Cnty., 693 F.3d
896, 913 (9th Cir. 2012) (prosecutors are immune); Simmons v. Sacramento
County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (judges are immune);
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Imbler v. Pachtman, 424 U.S. 409, 422-23 (1976) (grand jurors are immune).
Poulson has named no defendant who is liable for any violation of his rights.
Second, this Court cannot hear a civil claim related to Poulson’s ongoing
criminal prosecution. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme
Court held “that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been” previously invalidated. Id at 486 87. Though Heck involved a claim under 42 U.S.C. § 1983, and Poulson has
brought a Bivens action, “[a]ctions under § 1983 and those under Bivens are
identical save for the replacement of a state actor under § 1983 by a federal actor
under Bivens.” Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996). Any claim
Poulson has about the conduct of his ongoing prosecution must be raised in that
proceeding or on appeal.
Accordingly, IT IS HEREBY ORDERED:
1.

The Clerk of Court is directed to close this case and enter judgment.

2.

The Clerk of Court is directed to have the docket reflect that the filing

of this action is a strike against Poulson within the meaning of 28 U.S.C. § 1915A.
Any appeal would not be taken in good faith.

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3.

The Clerk of Court shall provide a copy of this Order to Poulson’s

attorney in his ongoing criminal matter.
DATED this 5th day of March, 2025.

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