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Rothing v. Lambert

United States District Court, D. Montana, Butte Division

March 24, 2014



CAROLYN S. OSTBY, Magistrate Judge.

Plaintiff Peter Rothing ("Rothing") claims that Defendants conspired to violate his civil and constitutional rights during state court litigation. ECF 1-Complaint. [1]

The following motions are pending:

(1) Defendants Holly Brown and John Brown's Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim ( ECF 5 );
(2) Defendants Lambert, Skinner and White's Motion to Dismiss for Insufficient Service of Process ( ECF 7 );
(3) Rothing's Motion for Request for Counsel pursuant to Fed.R.Civ.P. 83.6(4)(b)(1) ( ECF 11 );
(4) Rothing's Motion for Entry of Default ( ECF 12 );
(5) Rothing's "Combined Motion to Seek Determination and/or Declaration of Legal Rights, Status or other Legal Relations" (ECF 23) ; and
(6) Rothing's Motion to Supplement Pleadings pursuant to Fed.R.Civ.P. Rule 15(d) ( ECF 28 ).

Having considered the parties' arguments and submissions, the motions to dismiss and motion to supplement will be granted; the motions for request of counsel, for entry of default judgment, and for declaration of rights will be denied.[2]


Rothing moves pursuant to Rule 15(d) of the Federal Rules of Civil Procedure to supplement his pleadings in order to set out transactions and events that occurred after his initial pleading. ECF 28-Motion to Supplement. Although all the information in the motion to supplement appears to have occurred prior to the filing of the original Complaint, the Court will grant the motion to supplement. See Fed.R.Civ.P. 15(a). In ruling on the other pending motions, the Court has considered the supplemental information.


Rothing filed a number of cases in state district court in Gallatin County in 2011 and 2012. His lawsuit in this Court concerns the dismissal of four of those state court actions between June 2013 and November 2013. ECF 1-Complaint at 9. Rothing filed one case in Judge Holly Brown's court and three, somewhat related, cases in Judge John Brown's court. After both courts denied requests for hearings on procedure, Rothing sent letters to the courts questioning whether he was being treated fairly. He questioned Judge Holly Brown because there had been a 15-month delay in deciding a motion to dismiss. Rothing alleges this delay gave the appearance of impropriety, bias, and prejudice. ECF 1-Complaint at 11. Rothing's letter to Judge John Brown questioned whether Rothing was being denied fairness and due process. ECF 1-Complaint at 11.

Within five days of Rothing sending these letters, Judge Holly Brown filed a 32-page Order which Rothing contends was filled with errors, illegal, malicious, arbitrary, and capricious. He alleges she "regurgitated" every misleading, wrongful, illegal, unconstitutional, and malicious "spoliation of the evidence" which the County Attorney and County Commissioners had supplied. Rothing alleges that despite contrary evidence in his state court filings, Judge Holly Brown "parroted" back the County's evidence as justification for her ruling that Rothing was not entitled to access to the judicial system, thus denying him his Fifth and Fourteenth Amendment rights to due process. ECF 1-Complaint at 11.

Rothing alleges the Commissioners and the County Attorney showed their culpability with their constant "spoliation of the evidence" through their dishonest, malicious, and misleading claims which the Judges chose to accept. He provides the following examples of what he calls "spoliation of evidence": (1) the County argued that Rothing failed to exhaust his administrative remedies by not applying for a variance when the court record showed that he had applied for such a variance ( ECF 1-Complaint at 12; ECF 28-Supplement at 2 ); (2) the County asserted that Rothing's Complaint was about him paying his property taxes ( ECF 28-Supplement at 2 ); (3) that Skinner, White and Lambert made the false assertion that all of Rothing's complaints revolved around an adverse decision of the flood plain administrator in 2009 and were therefore time barred when his claims were actually constitutional claims ( ECF 28-Supplement at 3 ); and (4) that Skinner, White and Lambert made false assertions that Rothing had no inverse condemnation claim because he had no protected property interest requiring compensation under the Fifth Amendment. ECF 28-Supplement at 4. Rothing argues these assertions can be proven false by his complaints and the supporting evidence. ECF 28-Supplement at 2, 4.

Rothing alleges Judge John Brown maliciously connived and conspired with the other Defendants in rendering a predetermined ruling to attempt to deny Rothing his First Amendment right to access the judicial system. Judge John Brown allegedly made the arbitrary and capricious decision to dismiss Rothing's cases based on the arbitrary and capricious decisions of Judge Holly Brown. Judge John Brown also allegedly "parroted" back the maliciously false and misleading assertions submitted by the Gallatin County defendants. ECF 1-Complaint at 12.

Rothing alleges Defendants violated his constitutional rights under the First, Fifth, and Fourteenth Amendments. He alleges he was discriminated against due to his status as a self-represented litigant. He alleges that the Defendants committed violations of 18 U.S.C. § 2381 - treason, 18 U.S.C. § 2382 - misprision of treason, 18 U.S.C. § 2383 - rebellion or insurrection, 18 U.S.C. § 1503 and 18 U.S.C. § 1505 - protection of government processes - omnibus clause, 18 U.S.C. § 241 - civil rights conspiracy statute, 18 U.S.C. § 242 - deprivation of rights under color of law, 42 U.S.C. § 1983 - civil rights violations by government employee, 42 U.S.C. § 1985 - conspiracy to interfere with civil rights, and 42 U.S.C. § 1986 - action for neglect to prevent conspiracy. He alleges Defendants connived "to make a predetermined ruling against me, in the underlying cases, such that I would be prevented access to the judicial system and/or put in a situation wherein, due to the known propensity of a guild mentality amongst the judiciary, if remanded, would preclude me from getting a fair trial on the merits of the underlying cases." ECF 1-Complaint at 9.

For his relief, Rothing requests that all his underlying cases be settled against the defendants and that he be granted the payment of damages he requested in the underlying suits. He also asks for the imposition of fines, prison terms, and punitive damages. ECF 1-Complaint at 16.


A. Parties' Arguments

Judge Holly Brown and Judge John Brown argue this Court does not have subject matter jurisdiction over Rothing's challenges to state court decisions based upon the Rooker-Feldman doctrine. ECF 6-Mtn to Dismiss. In response, Rothing argues that his claims in this case are completely separate from the issues in his underlying state cases because they allege a conspiracy on the part of the defendants. ECF 16-Response to Mtn to Dismiss at 2. He argues that the underlying cases are based on different issues. He argues that his alleged conspiracy charge, committed after the fact, is not part of the original cases. ECF 16-Response to Mtn to Dismiss at 3.

B. Legal Standard

Judges Holly Brown and John Brown move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) which authorizes a court to dismiss claims over which it lacks proper subject matter jurisdiction. When a defendant challenges jurisdiction "facially, " all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). However, courts do not accept ...

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