United States District Court, D. Montana, Great Falls Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES OF MAGISTRATE JUDGE
Johnston United States Magistrate Judge.
Robert Holguin, a prisoner proceeding in forma pauperis and
without counsel, has filed what has been construed as three
motions to amend his Complaint. (Docs. 6, 7, 10.) Rule 15(a)
of the Federal Rules of Civil Procedure provides:
A party may amend its pleading once as a matter of course
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.
Fed.R.Civ.P. 15(a)(1). The Complaint was directed to be
served upon Defendants by Order dated February 27, 2018.
(Doc. 4.) Counsel for Defendants waived service on March 29,
2018 (Doc. 8) and Defendants filed an Answer on April 30,
2018 (Doc. 12). Mr. Holguin's motions to amend were filed
within 21 days of waiver of service of the Complaint,
accordingly the motions to amend will be granted. However,
since Mr. Holguin is a prisoner proceeding in forma pauperis,
the Court must review his amendments to the Complaint under
28 U.S.C. §§ 1915, 1915A. Sections 1915A(b) and
1915(e)(2)(B) require the Court to dismiss a complaint filed
in forma pauperis and/or by a prisoner against a governmental
defendant before it is served if it is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief.
Court finds that the claims which Mr. Holguin seeks to amend
are frivolous and should be dismissed.
Holguin seeks to amend his Complaint to raise a racial
discrimination claim against Defendants Cascade County,
Cascade County Attorney's Office, Cascade County
Attorney's Office Employees Joshua A. Racki, Valerie M.
Winfield, Stephanie L. Fueller, Cascade County Sheriff's,
Cascade County Sheriff's Department, Correctional Officer
Warner, and Attorney Sam Harris. He specifically asks to add
Defendants Warner and Harris.
Holguin first argues that his criminal defense lawyer, Scott
Harris, has belittled, disrespected, insulted, prejudiced,
racially profiled, and made bigotory remarks to Mr. Holguin.
To state a claim under 42 U.S.C. § 1983, a plaintiff
must allege two elements: (1) that a right secured by the
Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person
acting under color of state law. West v. Atkins, 487
U.S. 42, 48 (1988). In Polk County v. Dodson, 454
U.S. 312 (1981), the United States Supreme Court held that
public defenders do not act “under color of state
law” when performing traditional lawyer duties.
Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir.
2003)(en banc). Whether Mr. Harris is a public defender or an
appointed private attorney, Mr. Holguin cannot state a
federal claim against Mr. Harris because he is not a state
Holguin's only allegation against Office Warner is that
he was present during a conversation between Mr. Holguin and
Mr. Harris and laughed when they were talking. This is
insufficient to state a federal constitutional claim for
relief. Mere verbal harassment or abuse, including the use of
racial epithets, does not violate the Constitution and, thus,
does not give rise to a claim for relief under 42 U.S.C.
§ 1983. Oltarzewski v. Ruggiero, 830 F.2d 136,
139 (9th Cir. 1987); Gaut v. Sunn, 810 F.2d 923, 925
(9th Cir. 1987). Mr. Holguin's allegations that Officer
Warner laughed during the course of a conversation which he
alleges was racial in nature, is insufficient to state a
extent Mr. Holguin's raises racial discrimination claims
against Cascade County, Cascade County Attorney's Office,
Cascade County Attorney's Office Employees Joshua A.
Racki, Valerie M. Winfield, Stephanie L. Fueller, Cascade
County Sheriff's, Cascade County Sheriff's Department
the Court should abstain from hearing those claims for the
reasons Mr. Holguin cannot otherwise challenge his state
court criminal proceedings in this Court.
is a strong policy against federal intervention in pending
state judicial processes in the absence of extraordinary
circumstances. Younger v. Harris, 401 U.S. 37, 43-45
(1971); see also Gilbertson v. Albright, 381 F.3d
965, 973 (9th Cir. 2004) (quoting Middlesex County Ethics
Committee v. Garden State Bar Association, 457 U.S. 423,
431 (1982)). “Younger abstention is a jurisprudential
doctrine rooted in overlapping principles of equity, comity,
and federalism.” San Jose Silicon Valley Chamber of
Commerce Political Action Committee v. City of San Jose,
546 F.3d 1087, 1091 (9th Cir. 2008). Specifically, Younger
directs federal courts to abstain from granting injunctive or
declaratory relief that would interfere with pending state or
local criminal proceedings. Gilbertson, at 381 F.3d at 968.
abstention also applies to federal civil actions under §
1983 requesting money damages. Gilbertson v.
Albright,381 F.3d 965, 979 (9th Cir. 2004). Claims for
damages which turn on alleged violations of constitutional
rights caused by ongoing criminal prosecutions implicate the
same grounds for abstention as are ...