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Gopher v. Cascade County

United States District Court, Ninth Circuit

October 18, 2013

MELINDA GOPHER, President of Ahontoays Band and Heir to Robert & Dorothy Gopher's Estate, Plaintiff,
v.
CASCADE COUNTY, CAREY ANN SHANNON, GERALD BOLAND, MIKE GOPHER, PHYLLIS PARKER, and MARCUS RED THUNDER OF THE BEAR CLAW TRIBE, INC., Defendants.

ORDER

DONALD W. MOLLOY, District Judge.

Pending is Plaintiff Melinda Gopher's Motion to Proceed in Forma Pauperis and Complaint and Petition for Emergency Injunction. (Does. 1-2). Ms. Gopher seeks to enjoin a November 2, 2012 order issued in a state court probate action. To the extent a final decision has been rendered in the state court action, this matter is barred by res judicata and the Rooker-Feldman doctrine. To the extent the state court probate action is ongoing, the Court must abstain pursuant to the Younger doctrine. The motion to proceed in forma pauperis will be granted but the emergency injunction will be denied and the complaint dismissed.

I. Motion to Proceed in Forma Pauperis

Ms. Gopher submitted a declaration sufficient to make the showing required by 28 U.S.C. §1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).

II. 28 U.S.C. § 1915(e)(2) Review

Ms. Gopher is proceeding in forma pauperis so her Complaint is reviewed under 28 U.S.C. § 1915. Section 1915(e)(2)(B) allows for the dismissal of a complaint filed in forma pauperis before it is served upon the defendants if it is frivolous, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.

A complaint is frivolous if it "lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted if a plaintiff fails to allege the "grounds" of her "entitlement to relief" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted). Rule 8(a)(2) requires a complaint to "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted).

"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); Cf. Fed.R.Civ.P. 8(f) ("All pleadings shall be so construed as to do substantial justice").

Although the statute requires a dismissal for the reasons stated, it does not deprive a district court of its discretion to grant or deny leave to amend. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). A court can decline to grant leave to amend if "it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez, 203 F.3d. at 1127 ( quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). Leave to amend is liberally granted to pro se litigants unless it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) ( citing Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980)).

III. Analysis

Ms. Gopher seeks the return of a 13-star peace flag bundle and its contents. She contends that Cascade County has exercised illegal control over the Gopher family's artifacts. She seeks an immediate injunction barring the effect of a November 12, 2012 state court order, the return of her family's property which was subject to a probate action which commenced in Cascade County on July 22, 2010, and a stay of all state court proceedings.

According to a December 18, 2012 Order of the Montana Supreme Court, this matter arises from an Eighth Judicial District Court probate action. Ms. Gopher filed a petition for extraordinary writ and supervisory control in the Montana Supreme Court seeking to challenge the Eighth Judicial District Court's exercise of subject matter jurisdiction over the peace flag bundle. See generally In re: Estate of Gopher, Cause No. OP-12-0718 (Mont. Dec. 18, 2012). Ms. Gopher asked the Montana Supreme Court for relief similar to that sought here. In the Montana Supreme Court, Ms. Gopher sought to void the November 2, 2012 Findings of Fact, Conclusions of Law issued by the Eighth Judicial District Court and dismiss the case for lack of subject matter jurisdiction. She also sought a temporary injunction for relinquishment of the flag bundle and its contents to the Blackfeet Tribal Court. The Montana Supreme Court found that an appeal would offer Ms. Gopher an adequate remedy and therefore she was not entitled to any relief by way of supervisory control. Id.

This action has been and is being litigated in state court. To the extent there is a final judgment on the merits regarding the probate action, this case is barred by res judicata. Res judicata provides that a final judgment on the merits bars a subsequent action between the same parties over the same cause of action. In re Imperial Corp. of America, 92 F.3d 1503, 1506 (9th Cir. 1996). "[A] final judgment on the merits of an action precludes the parties or the privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94 (1980). Res judicata bars a later suit where the previous suit (1) involved the same "claim" as the later suit, (2) reached a final judgment on the merits, and (3) involved the same parties or their privies. Nordhorn v. Ladish Co., Inc., 9 F.3d 1402, 1404 (9th Cir. 1993).

Ms. Gopher appears to be raising the same claims she brought in state court. Even if Ms. Gopher is attempting to raise different claims regarding this same issue, claim preclusion "bar(s) all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties... on the same cause of action." Ross v. IBEW, 634 F.2d 453, 457 (9th Cir. 1980); see ...


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