Duane Belanus v. Phil Clark

I. Background

On August 3, 2008, Belanus returned to his home to find the police searching his home. Belanus was detained and later arrested. Belanus was charged “with kidnapping [his girlfriend], raping her, inflicting bodily injury upon her in the course of the rape, unlawfully tampering with physical evidence of the rape, burglarizing [the girlfriend’s] residence, and committing a theft therein.” State v. Belanus, 240 P.3d 1021, 1022–23 (Mont. 2010). Belanus was tried in June 2009, convicted, and, in August 2009, sentenced to life without the possibility of parole. Belanus appealed to the Montana Supreme Court, which affirmed his conviction. Id. at 1025.

On June 5, 2012, Belanus, proceeding pro se, filed a civil complaint in the United States District Court of the District of

BELANUS V. CLARK

Montana. He alleged that the police had conducted warrantless searches of his home, his shed, and his workplace between August 3 and August 8, 2008, in violation of his rights under the United States and Montana constitutions. He named as defendants officers with the Lewis and Clark County Sheriff’s Department and attorneys with the County. He paid the filing…

Opinion by Judge CALLAHAN; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

OPINION

Montana state prisoner Duane Ronald Belanus filed this § 1983 action asserting claims based on the alleged violation of his rights under the United States and Montana constitutions as a result of searches of his home, storage shed, and workplace in 2008, that were made in connection with his criminal prosecution. The district court dismissed his complaint with prejudice at the screening stage and held that Belanus’s complaint constituted a “strike” against him pursuant to 28 U.S.C. § 1915 (g). We affirm, holding that Bela-nus cannot assert a cognizable claim for equitable tolling of the statute of limitations, and that the district court could determine that his complaint constitutes a “strike.”

I. Background

On August 3, 2008, Belanus returned to his home to find the police searching his home. Belanus was detained and later arrested. Belanus was charged “with kidnapping [his girlfriend], raping her, inflicting bodily injury upon her in the course of the rape, unlawfully tampering with physical evidence of the rape, burglarizing [the girlfriend’s] residence, and committing a theft…

concurring in part and dissenting in part:

I agree with much of what the majority says. I specifically agree with parts I, II and III of the majority opinion. The parts with which I do not entirely agree are IV, V and VI.

A. As to part IV, I think it is fair to assume that we all agree that “[a] district *1031 court should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.’ ” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.2012).

So where do I diverge from my colleagues? Well, the district court did not consider the fact that Montana allows equitable tolling “where a plaintiff is substantially prejudiced by a defendant’s concealment of a claim, despite the exercise of diligence by the plaintiff.” Schoof v. Nesbit, 316 P.3d 831, 841 , 373 Mont. 226, 239 (2014); see also Hardin v. Straub, 490 U.S. 536, 539 , 109 S.Ct. 1998, 2000-01 , 104 L.Ed.2d 582 (1989); cf. Wallace v. Kato, 549 U.S. 384, 391-95 , 127 S.Ct. 1091, 1097-99 , 166 L.Ed.2d 973 (2007). Belanus’ pleading does suggest that he was unable to determine the…