Poulson v. Bullock

• Decision Date: 07 November 2017
• Docket Number: CV 17-140-M-DLC-JCL
• Parties: KERMIT TY POULSON, Plaintiff, v. GOVERNOR STEVE BULLOCK, TIM FOX, et al., Defendants.
• Court: U.S. District Court — District of Montana

KERMIT TY POULSON, Plaintiff, v. GOVERNOR STEVE BULLOCK, TIM FOX, et al., Defendants.

CV 17-140-M-DLC-JCL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

November 7, 2017

ORDER, and FINDINGS AND RECOMMENDATION

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 applicableprovisions 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 (9^th 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 slanderby 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. DN-09-053, 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 pleadingliberally, 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 (9^th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9^th 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 thetime 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 aplausible 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 (9^th 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 (9^th 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) (Governmentattorneys 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 (9^th 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 (9^th Cir. 2003). When a case is aforbidden "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 lawenforcement - specifically Defendant...