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Fournier v. Lepage

United States District Court, D. Maine

February 17, 2015

FRANK D. FOURNIER, Plaintiff
v.
PAUL LEPAGE, et al., Defendants

FRANK DANIEL FOURNIER, Plaintiff, Pro se, WARREN, ME.

For PAUL LEPAGE, individually and in his official capacity, DR JOSEPH FITZPATRICK, individually and in his official capacity, JOSEPH PONTE, individually and in his official capacity, RODNEY BOUFFARD, individually and in his official capacity, MIKE TAUSEK, individually and in his official capacity, TROY ROSS, individually and in his official capacity, ROBERT COSTIGAN, individually and in his official capacity, SCOTT MCCAFFERY, individually and in his official capacity, STEVEN MAXWELL, individually and in his official capacity, JOANNE SYLVESTER, individually and in her official capacity, PRISCILLA BARTLETT, individually and in her official capacity, PATSY JACOBSON, individually and in her official capacity, JANET MILLS, individually and in her official capacity, JODY BRETON, individually and in her official capacity, MARTIN MAGNUSSON, individually and in his official capacity, DONALD ALLEN, individually and in his official capacity, ERNIE HARRINGTON, individually and in his official capacity, T GRANT, individually and in his official capacity, MARY JONES, individually and in her official capacity, SCOTT JONES, individually and in his official capacity, PATRICIA MULLENS, individually and in her official capacity, CAROLE GEEL, individually and in her official capacity, DIANE SLEEK, individually and in her official capacity, Defendants: DIANE SLEEK, LEAD ATTORNEY, ASSISTANT ATTORNEY GENERAL, AUGUSTA, ME.

OPINION

John C. Nivison, United States Magistrate Judge.

RECOMMENDED DECISION

In this action, Plaintiff Frank D. Fournier, proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983, based on his contention that he remains in custody despite the fact that he was to be released in June 2010. (Compl., ECF No. 1, at 3, ¶ IV.) The matter is before the Court on Plaintiff's three motions to " expedite immediate release" (ECF Nos. 17 - 19), Plaintiff's motion for writ of habeas corpus ad testificandum (ECF No. 23), and Defendants' Motion to Dismiss (ECF Nos. 26 & 30).[1]

As explained below, following a review of the pleadings, and after consideration of the parties' arguments, the recommendation is that the Court grant Defendants' Motion to Dismiss, which would moot Plaintiff's motions for expedited release and Plaintiff's motion for a writ of habeas corpus ad testificandum. Additionally, the recommendation is that the Court grant Plaintiff an opportunity to file an amended pleading to assert his habeas claim on the proper form, if Plaintiff determines that such a filing is appropriate.[2]

Background

In March 1988, the Maine Superior Court sentenced Plaintiff to 50 years in prison following a conviction of murder. (PageID # 5.) The Superior Court also sentenced Plaintiff to five years concurrent on a conviction for the illegal possession (as a felon) of a firearm. (Id.) On appeal, the Maine Supreme Judicial Court affirmed the convictions. State v. Fournier, 554 A.2d 1184 (Me. 1989).

According to Plaintiff, the proper application of Maine good time law should have resulted in his release in June 2010. (PageID # 3.) Plaintiff also alleges that Defendants (1) have converted his concurrent sentences into consecutive sentences, (2) have inserted and refused to remove false information in his classification files, and (3) improperly changed the method of calculating good time in 1994, which change resulted in the loss of more than 2000 days of good time credit. (PageID # 6.) Although he initially requested an award of money damages (PageID # 4), in a subsequent filing, Plaintiff represented that he intended to withdraw the request for damages and seek only " an entry of an ORDER instructing IMMEDIATE RELEASE." (ECF No. 9, PageID # 49.) Plaintiff also appears to request summary judgment in his favor based on his current filings. (PageID # 12.)[3]

Citing the federal Declaratory Judgments Act, 28 U.S.C. § 2201, Plaintiff has filed three motions to " expedite immediate release by default." (ECF Nos. 17 - 19.) Plaintiff asserts that a review of " the 1983 sentencing code of laws, " and basic math, make it clear that he " will win on the merits of the case." (PageID ## 59, 68.) Defendants oppose the motions, which Defendants have interpreted as a motion for entry of judgment by default. (Responses to Motions for Immediate Release, ECF No. 20.) A review of the docket reveals no grounds to support the entry of default.

On December 4, 2014, Plaintiff filed a motion requesting that he be transported to the courthouse to testify in support of his action. (Draft Writ of Habeas Corpus Ad Testificandum, ECF No. 23.) In connection with that filing, Plaintiff asserts that the warden at the prison is responsible for due process violations and has failed to conduct a reasonable investigation into Plaintiff's claims. Plaintiff argues that " the court should grant partial summary judgment on liability to the plaintiff on his due process claims, " with damages to be determined at trial. (PageID # 82.)

On December 23, 2014, Defendants filed their Motion to Dismiss[4] (ECF No. 26).[5] As part of his opposition to the motion, Plaintiff filed documents which suggest that as of April 7, 2010, the Maine Department of Corrections calculated his release date as February 7, 2019 (PageID # 118), and that, as of April 29, 2014, the release date calculated by the Department was November 5, 2018 (PageID # 119).

On January 29, 2015, Plaintiff filed a letter that the court characterized as Plaintiff's Sur-Reply to Defendants' Motion to Dismiss. (ECF No. 31.) In his Sur-Reply, Plaintiff asserted that new evidence has come to his attention that ...


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