Fourstar v. Bullock
| Decision Date | 06 December 2018 |
| Docket Number | Cause No. CV 18-36-GF-SPW |
| Parties | VICTOR CHARLES FOURSTAR, JR., Plaintiff, v. MONTANA GOVERNOR STEVE BULLOCK, et al., Defendants. |
| Court | U.S. District Court — District of Montana |
Plaintiff Fourstar filed a complaint in this matter on February 13, 2018. At that time, he was a prisoner. See Compl. (Doc. 2) at 5 ¶ I. He is also proceeding in forma pauperis. See Mot. to Proceed In Forma Pauperis (Doc. 1); Order (Doc. 17). The Court must review the complaint to determine whether it fails to state a claim on which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(a).
Fourstar is also self-represented. "A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks and citation omitted). Courts must briefly explain deficiencies that may be cured by amendment, see Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012), but if a claim cannot be cured by amendment, "the court shall dismiss" it, 28 U.S.C. § 1915(e)(2) (emphasis added).
The complaint names over 33 defendants and scatters allegations over a wide variety of situations. The Court will address its claims seriatim.
Fourstar claims Governor Bullock and others "discriminatorily targeted non-Caucasian Italian-American Studies course at College of Missoula (consolidated with Paralegal Studies Program and Culinary Arts Program) for termination through a cut in . . . funding . . . without authority." As a result, he says, he is not able to attend the Paralegal Studies Program, enjoy vocational rehabilitation, or enjoy his full share of the Cobell settlement. See Compl. (Doc. 2) at 13 ¶ III(A)(4), 14 ¶ IV, 16.
There was no "Italian-American Paralegal Studies Program." Fourstar links the two because funding for each was cut. This does not support an inference that a defendant engaged in invidious ethnic discrimination in violation of federal law. Further, a prospective student's interest in attending a particular degree program does not confer "a legitimate claim of entitlement" to the continuation of that program, see Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972),so Fourstar cannot claim he was deprived of a property interest without due process.
A complaint's allegations must "permit the court to infer more than the mere possibility of misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (emphasis added). These allegations do not permit an inference of any misconduct. They fail to state a claim on which relief may be granted.
Fourstar purports to make claims on behalf of two other persons. See Compl. at 23-26, 32-36. He is not admitted to the Bar of this Court and is not an attorney at law. He cannot litigate a claim for another person. See 28 U.S.C. § 1654; D. Mont. L.R. 83.8(a) (Dec. 1, 2017). These allegations fail to state a claim on which relief may be granted.
The following allegations arise from two separate, brief periods of detention on two serial petitions to revoke Fourstar's federal supervised release. Pending hearings and disposition, he was held at Crossroads Correctional Center in May 2017 and again in November 2017. He asserts violations of his rights under the "1st, 5th, 8th, 10th, and 14th Amendments of United States and Montana Constitutions." See Compl. at 17.
Fourstar alleges that Corrections Corporation of America and other individual defendants are liable for failing to meet his medical needs for surgery on both knees; knee braces and a cane; psychiatric counseling; a Wellbutrin prescription; and tuberculosis screening and treatment for his "TB exposure & symptoms." He also contends defendants failed to provide care "for Fourstar's severe dental needs and pain." Compl. at 17-20.
As persons responsible for Fourstar's custody under the authority of a federal warrant and a federal judge's order of detention, all defendants were acting under color of federal law. If Fourstar has a cause of action at all, it arises under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the federal sometime-analogue to 42 U.S.C. § 1983. But unlike the alleged conduct in violation of the Fourth Amendment in Bivens, the defendants' alleged conduct here is "of a kind that typically falls within the scope of traditional state tort law." Minecci v. Pollard, 565 U.S. 118, 131 (2012). Bivens does not provide a remedy. See id. at 125-26; Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70-73 (2001); see also Ziglar v. Abbasi, ___ U.S. ___, 137 S. Ct. 1843, 1857-58 (2017). These allegations fail to state a claim on which relief may be granted.
Fourstar alleges Defendant Bush failed to provide "confidential attorney-client communications/phone calls to his attorney," Dwight Schulte, resulting in denial of his right to a full and fair defense. Compl. at 20. The Court will assume, for present purposes, that a Bivens remedy is available.
As noted, Fourstar claims he was held at Crossroads in May 2017. Schulte represented Fourstar from April 20, 2017, through the final revocation hearing on June 1, 2017. See Order (Doc. 200); Minutes (Doc. 205), United States v. Fourstar, No. 4:02-CR-52-DLC. During this period of time, the only violation alleged in the petition to revoke Fourstar's supervised release was his failure to register as a sex offender. See Pet. (Doc. 123) at 1-2, Fourstar, 4:02-CR-52-DLC. At the June 1 hearing, Fourstar's supervised release was revoked, but when he agreed to register as a sex offender, he was sentenced to time served and was released. See Minutes (Doc. 205); Revocation Judgment (Doc. 207) at 1, Fourstar, 4:02-CR-52-DLC.
The record in the criminal case defeats any inference that Fourstar did not have a full and fair defense. These allegations fail to state a claim.
Fourstar contends that Defendants Corrections Corporation of America and Bryan O'Keefe, the chaplain at Crossroads, denied him "weekly sweat lodges, weekly pipe ceremony, [and] weekly outside community spiritual advisor." Compl. at 18. He claims they caused him to suffer "a loss of identity as a NativeAmerican" and "severe emotional pain and duress" as well as impeding his rehabilitation. Id.
For three reasons, Fourstar cannot pursue this claim under Bivens. First, the Supreme Court has never recognized a First Amendment claim under Bivens. See Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012). Second, a roughly comparable and perhaps even superior remedy is likely available under state law. See, e.g., Walker v. State, 2003 MT 134 ¶¶ 72-75 (Nelson, J.); Mont. Const. Art. II, § 4; Dorwart v. Caraway, 2002 MT 240 ¶ 48.
Third, the Bivens Court perceived a need to provide a money-damages remedy for Fourth Amendment violations because Congress had not created one. See, e.g., Bivens, 403 U.S. at 395-97. Here, however, Congress has expressly provided a means of vindicating religious rights. The Religious Land Use and Institutionalized Persons Act (RLUIPA) provides a cause of action against state or federal officials as well as "any other person acting under color of Federal law." 42 U.S.C. § 2000cc-5(4)(B). The Supreme Court has long recognized that private parties may act under color of Federal or state law, and the Ninth Circuit holds that the phrase "acting under color of State law," see § 2000cc-5(4)(A)(iii), means the same thing under RLUIPA that it means under § 1983. See Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011). There is no apparent reason to conclude the phrase "acting under color of Federal law," see § 2000cc-5(4)(B), means something different under RLUIPA than it means under Bivens. Therefore, the concerns that persuaded the Bivens Court to create a remedy for Fourth Amendment violations are absent here. Congressional provision of a statutory remedy to vindicate religious exercise and religious freedom obviates the need for a judicially-created Bivens damages remedy to vindicate First Amendment rights.
These allegations fail to state a claim on which relief may be granted.
Fourstar alleges that Defendant Fey, the Crossroads librarian, discriminated against him by "refusing and failing to order" the Fort Peck Journal or other "Native American media" but routinely "providing" such "Caucasian media" as the Great Falls Tribune.1 Compl. at 20. As with his claim of religious discrimination, Fourstar claims Fey caused him to suffer "a loss of identity as a Native American" and "severe emotional pain and duress" as well as impeding his rehabilitation. Id.
The Court will assume, for present purposes, that a Bivens remedy might lie for violation, by private persons acting under color of Federal law, of pretrial detainees' First Amendment rights to free association, free speech or expression, orfree press, or of their Fifth Amendment rights to equal protection of the laws.
Even so, Fourstar does not say he ordered or was prevented from ordering delivery of the Fort Peck Journal. He alleges only that the librarian did not order it. The Court is not aware of any law requiring libraries in local jails to purchase newspapers for indigent inmates or to ensure that any available newspapers represent an appropriate mix of constituencies. And Fourstar's ethnic characterization of the respective newspapers is dubious. Magazines, for instance, tend to address particular interests, but local newspapers address interests shared by a geographical community. Fourstar's desire for hometown news is as understandable and as legitimate as any other inmate's, but it is not more legitimate. These allegations...
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