IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA GREAT FALLS DIVISION

CHARLES FOURSTAR, Cause No. CV 20-99-GF-SPW-TJC

Plaintiff, vs. ORDER DAVID BERKEBILE, et al., Defendants.

Plaintiffs Fourstar and Mitchell submitted a complaint on October 15, 2020. Plaintiff Fourstar, proponent of the bulk of the allegations, moved to proceed in forma pauperis. Plaintiff Mitchell signed the complaint, see Compl. (Doc. ^[2]) at 9, but he did not pay the filing fee and did not move to proceed in forma pauperis. On February 9, 2021, the Court reserved ruling on Fourstar’s motion to proceed in forma pauperis and ordered either that Mitchell also move to proceed in forma pauperis or that Fourstar and Mitchell tender the full filing fee of $400.00. Mitchell was advised that failure to timely respond to the order would result in his dismissal. See Order (Doc. 8) at 2 [J 1-3. Mitchell did not respond to the Order. Fourstar, therefore, is the sole plaintiff.

I. Motion to Proceed In Forma Pauperis Fourstar has had at least three actions dismissed as frivolous or for failure to

state a claim. Asa result, he is not permitted to proceed in forma pauperis unless he shows that he was in imminent danger of serious physical injury when he filed his pleading. See Andrews v. Cervantes, 493 F.3d 1047, 1053-54 (9th Cir. 2007); 28 U.S.C. § 1915(e)(2)(B)(ii), (g)-(h). Although Fourstar’s allegations are conclusory, they raise serious claims about his health, and the danger to him was ongoing, as he was still held at Crossroads when he filed on September 14, 2020. He meets the exception outlined in § 1915(g). The Court will grant the motion to proceed in forma pauperis. See Account Statement (Doc. 1-1). II. Analysis Fourstar alleges wrongs occurring between “mid-July 2020” through the time he filed his complaint on October 10, 2020. See Compl. (Doc. ^[2]) at 8

. TII(A)(2); id. at 16. Throughout that time period, Fourstar was in federal custody. On July 2, 2020, United States Magistrate Judge John Johnston ordered him detained pending a final hearing on a petition to revoke his federal supervised release. See Minutes (Doc. 341), United States v. Fourstar, No. CR 02-52-GF DLC-JTJ (D. Mont. July 2, 2020). On July 21, 2020, United States District Judge Dana L. Christensen

revoked Fourstar’s supervised release and sentenced him to serve four months in custody. See Judgment on Fifth Revocation (Doc. 356) at 2, Fourstar, No. CR 02- 52-GF-DLC (D. Mont. July 21, 2020). Fourstar was held at Crossroads Correctional Center (“CCC”) in Shelby, Montana, a private prison. Fourstar asserts a right to relief under several provisions of law. The Court will address each. A. First Amendment Again, Fourstar “must seek a remedy under state tort law.” Minneci, 565 U.S. at 131. To the extent his allegations might support claims under the Fifth Amendment, those claims are dismissed. D. Fourteenth Amendment Fourstar invokes the Fourteenth Amendment. See Compl. (Doc. ^[2]) at 8 III(A)(1). The Equal Protection Clause of the Fourteenth Amendment applies to the federal government. See Bolling v. Sharpe, 347 U.S. 497, 499-500 (1957); United States v. Ayala-Bello, 995 F.3d 710, 714 (9th Cir. 2021). Fourstar seems to allege that staff at CCC were required to “differentiat[e] between ‘non-prisoners’

... and ‘prisoners,’” Compl. at 8 III(A)(4), or to treat him as a “technical supervised release violator” rather than a “supervised release violator,” id. at 5 I(A). The Court is not aware of any provision of law that required Fourstar to be treated differently than other persons in federal pretrial custody or serving a federal

sentence at CCC. This claim is denied. E. 18 U.S.C. §§ 666 and 1343 Fourstar claims the defendants violated one or both of these criminal

statutes. “[P]rivate rights of action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). The Racketeer- Influenced and Corrupt Organizations Act (“RICO”) provides a private right of action where some violations of federal criminal statutes are concerned.

1]

RICO does not extend to alleged violations of 18 U.S.C. § 666. See 18 U.S.C. §§ 1961(1), 1964(c). RICO does extend to violations of 18 U.S.C. § 1343. See 18 U.S.C. § 1961(1). Fourstar alleges that Defendant Berkebile “committed fraud upon the United States by providing orders and agreements to his subordinates . . . to give new COVID-19 testing procedures . . . without differentiating between ‘non- prisoners’ .. . and ‘prisoners.’” Compl. at 8; see also id. at 11. The dates on which Fourstar alleges this “fraud” occurred fall between September 9, 2020, and October 9, 2020, see id. at 8, 11, when he was a prisoner, see Judgment on Fifth Revocation (Doc. 356) at 2, Fourstar, No. CR 02-52-GF-DLC (D. Mont. July 21, 2020). To whatever extent pretrial detainees and prisoners should have been treated differently, see, e.g., Gordon v. County of Orange, 888 F.3d 1118, 1122-24 (9th Cir. 2018), Fourstar would not benefit from the distinction. Failure to make it could not have caused him personal injury or caused him to be “injured in his business or property.” 18 U.S.C. § 1964(c). These claims are dismissed. F. Americans with Disabilities Act Title II of the Americans with Disabilities Act, see Compl. at 8 TII(A)(1), prohibits public entities from discriminating against persons with disabilities. The Act’s definition of a public entity does not include private persons or entities. See 42 U.S.C. § 12131(1). This claim is dismissed. G. Rehabilitation Act Fourstar cites § 504 of the Rehabilitation Act, 29 U.S.C. § 794. See Compl. at 8 J I(A)(1). Assuming the Act applies to CCC’s parent company, see, e.g., 29 U.S.C. § 794(b)(3)(A), (B), Fourstar’s allegations suggest he had several medical conditions or concerns. Cf 29 U.S.C. § 705(9)(A), (B); 42 U.S.C. § 12102(1), (2) (defining “disability”). They do not, however, suggest the existence of “any program or activity,” see id. § 794(a), (b), that was generally available to others but from which he was excluded “by reason of” his disability, as the Act requires, 29 U.S.C. § 794(a). This claim is dismissed. H. EMTALA The Emergency Medical Treatment and Labor Act provides a private cause of action against certain hospitals. The Act prohibits hospitals from transferring patients in need of care to another emergency medical provider before examining and stabilizing their conditions. See, e.g., 42 U.S.C. § 1395dd(d)(2)(A); Bryant v. Adventist Health Sys./West, 289 F.3d 1162, 1165 (9th Cir. 2002); Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1256-57 (9th Cir. 1995); Brooker v. Desert Hosp. Corp., 947 F.2d 412, 414-15 (9th Cir. 1991). Fourstar does not allege any facts that could support a claim under the Act. As he makes a claim regarding CCC under the same Act and over the same time period in another case, see Compl. (Doc. ^[2]) at 4, 7, Fourstar v. Bludworth, No. CV 21-13-GF-SPW (D. Mont. filed Feb. ^[5], 2021), there is no need to permit amendment in this case. This claim is dismissed. I. “Bad Men” Clause Fourstar does not explain what right he believes he holds under the 1868 or 1851 Fort Laramie Treaties. The “bad men” provision of the 1868 Fort Laramie Treaty does not confer a right against arrest or trial or revocation by a federal court. See United States v. Drapeau, 414 F.3d 869, 877-78 (8th Cir. 2005); see also, @.g., Order (Doc. 38) at 6, Fourstar v. Eliason, No. 4:16-CV-113-SPW (D. Mont. Dec. ^[6], 2018). To the extent Fourstar can be understood to make a claim under the treaties, the claim is dismissed. J. Medical Immunity Act The Court is not aware of a “Medical Immunity Act.” See Compl. at 8 III(A)(1). This claim is dismissed. K. First Step Act and Administrative Procedures Act Fourstar claims he was entitled to “Team services,” “gratuities, rent & deposit, home-confinement, pre-release,” see Compl. at 9-10, “transfer to a facility within 500 driving miles of his residence,” id. at 13, “recalculation of good time credits,” id. at 13 n.1, and a “right to access the administrative remedy program,” id. at 13, all under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (Dec. 21, 2018). As noted above, Fourstar was sentenced on July 21, 2020, to serve four months in custody, followed by 29 months’ supervised release. See Judgment on Fifth Revocation (Doc. 356) at 2-3, Fourstar, No. CR 02-52-GF-DLC (D. Mont. July 21, 2020). Good-time credits may accrue to prisoners serving “more than | year.” See 18 U.S.C. § 3624(b)(1). The Court is not aware of a law entitling an inmate to earn good-time credits on a four-month custodial sentence or to have prior credits “carry over” from already-discharged original sentences or prior revocation sentences. Consequently, Fourstar was not eligible to be considered for placement on home confinement or in a pre-release center or to receive rent or other funds to facilitate such placements. See id. § 3624(g)(1)(A). These allegations are dismissed. To provide relief on Fourstar’s other claims to the benefits of the First Step Act, a declaratory judgment might clarify that Fourstar should have been placed at the facility closest to his home, received whatever “gratuities” the Act entitled him to, and obtained forms to file administrative grievances for rights or benefits under the First Step Act, all during the three to four months he was held at CCC in the middle of the COVID-19 global pandemic. But, in determining whether a request for declaratory relief? is moot, the question is “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Preiser v. Newkirk, 422 U.S. 395, 402 (1975). Fourstar now resides, not at CCC, but at Englewood Federal Correctional Institution in Colorado. See Inmate Locator, https://www.bop.gov/inmateloc (accessed June 17, 2021). He is serving a new custodial judgment following a sixth revocation of his supervised release in December 2020. He will not serve a

term of supervised release when he discharges the current judgment. See Judgment on Sixth Revocation (Doc. 394) at 2, Fourstar, No. CR 02-52-GF-DLC (D. Mont. Dec. 10, 2020). Finally, pursuant to an executive order, federal prisoners are unlikely to be held at private prisons such as CCC. Thus, there is no “reasonable expectation that [Fourstar] would be subjected to the same action again.” Murphy v. Hunt, 455 U.S. 478, 482 (1982); see also Public Utils. Comm’n v. FERC, 100 F.3d 1451, 59-61 (9th Cir. 1996). His claims concerning the First Step Act, whatever their merits, lack “immediacy and reality” under these circumstances. They are moot. Fourstar’s allegations under the First Step Act and the Administrative

5 U.S.C. § 702; Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1233-36 (10th Cir. 2005), it is not available now. Fourstar’s allegations do not fairly implicate the validity of the judgment that underlay his custody at the time he filed the complaint. See Part A(1), supra.

Procedures Act, see Compl. at 8 ¥ III(A)(1), are dismissed. Ill. Amendment The Court has considered whether any of Fourstar’s claims could be cured by amendment. But the defects in his complaint do not involve omission of important elements. Fourstar would have to allege different facts, not merely additional ones, to cure the defects of his claims. An opportunity to amend would

amount to an opportunity to file a different complaint. That is not the purpose of the amendment requirement. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), quoted in Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Although many of Fourstar’s allegations are conclusory, those allegations that are specific clearly show that he cannot state a claim on which relief may be granted. Fourstar may have claims under state law. But, as all of his federal claims

are dismissed for failure to state a claim, the Court will not exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c)(3). IV. Certification Under Fed. R. App. P. 24 While the Court finds that all of Fourstar’s allegations fail to state a claim, it declines to certify that an appeal would not be taken in good faith.

Accordingly, IT IS ORDERED: 1. Plaintiff Mitchell is DISMISSED.

GRANTED. A collection order accompanies this Order.