United States District Court, D. Montana, Missoula Division
JOSHUA MAN OF GOD, HOROWITZ FAMILY, and DAVID MAN OF GOD, HOROWITZ FAMILY Plaintiffs,
STATE OF MONTANA (PRINCIPAL), a Public Corporation/Statutory Trust; and STATE OF MONTANA (ALL AGENTS) ALL PUBLIC TRUSTEES/SERVANTS EMPLOYEES of above Corporation, Defendants.
L. Christensen, Chief District Judge.
States Magistrate Judge Jeremiah C. Lynch entered his
Findings and Recommendations on May 31, 2017, recommending
dismissal of Plaintiffs' Complaint, filed May 17, 2017
(Doc. 1), without leave to amend. Plaintiffs, appearing pro
se, timely filed an objection and are therefore entitled to
de novo review of those findings and recommendations to which
they specifically objected. 28 U.S.C. § 636(b)(1)(C).
This Court reviews for clear error those findings and
recommendations to which no party objects. See McDonnell
Douglas Corp. v. Commodore Bus. Mack, Inc., 656 F.2d
1309, 1313 (9th Cir. 1981); Thomas v. Am, 474 U.S.
140, 149 (1985). "Clear error exists if the Court is
left with a definite and firm conviction that a mistake has
been committed." United States v. Syrax, 235
F.3d 422, 427 (9th Cir. 2000).
filed a two-page Complaint on May 17, 2017, asserting 18
causes of action against Defendants, including "ACTING
under 'Color of Law'" and "Un-Law-Full
Arrest/Kidnapping." (Doc. 1 at 1.) This Complaint failed
to provide any factual information supporting the action.
Based upon this threadbare pleading, Judge Lynch issued
Findings and Recommendations recommending the matter be
dismissed. In particular, because the Complaint asserted that
every employee employed by the State of Montana committed
each of the 18 offenses against the Plaintiffs, a factual
impossibility, Judge Lynch found that pleading was frivolous
and failed to invoke the Court's jurisdiction. Thus, the
Findings and Recommendations recommend dismissal of the
matter without leave to amend.
the issuance of the Findings and Recommendations, Plaintiffs
filed an Amended Complaint (Doc. 7), a Second Amended
Complaint (Doc. 11), and an objection (Doc. 13). The filing
of these documents, and in particular the 31 page Second
Amended Complaint, arguably moot Judge Lynch's Findings
and Recommendations. The Second Amended Complaint lists close
to 30 additional "Public Servant" Defendants, some
by name and some by title. (Doc. 11 at 3-5.) This Complaint
also provides some additional facts which may support a
colorable cause of action in a properly pled complaint.
Specifically, the Second Amended Complaint refers to an event
where Plaintiffs were allegedly falsely arrested by officers
with the Montana Highway Patrol and the Missoula County
Sheriffs' Department. Properly pled, this allegation
could support a claim that the Plaintiffs' constitutional
rights were violated. However, at present, the allegations in
the Second Amended Complaint are vague and conclusory, and
fail to allege a viable a claim for relief. Litmon v.
Harris, 768 F.3d 1237, 1241 (9th Cir. 2014) ("Vague
and conclusory allegations of... civil rights
violations" are insufficient to are not sufficient to
withstand a motion to dismiss.").
example, Plaintiffs' Second Amended Complaint alleges
that Montana Highway Patrol officer "Nicholas Navarro 
and at least three (3) other MONTANA HIGHWAY PATROL OFFICERS
and at least three (3) MISSOULA SHERIFF DEPUTIES acting under
'Color of Law' and in a Conspiracy against Rights,
unlawfully detained I, David, from traveling in private
conveyance and threatened force." (Doc. 11 at 8.)
However, the Second Amended Complaint fails to provide any
additional details supporting this broad allegation. The
remaining allegations are equally vague and conclusory and
fail to state a cognizant claim for relief. See Fed.
Rule Civ. P. 8(a)(2) ("A pleading that states a claim
for relief must contain ... a short and plain statement of
the claim showing that the pleader is entitled to
relief."); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) ("[T]he pleading standard Rule 8
announces does not require detailed factual allegations, but
it demands more than an unadorned,
(citation and internal quotation marks omitted).
because Plaintiffs' Second Amended Complaint provides
only vague and conclusory allegations of Defendants'
alleged unlawful conduct, the Court will modify Judge
Lynch's Findings and Recommendations, and dismiss
Plaintiffs' Second Amended Complaint for "failure to
state a claim upon which relief can be granted."
Fed.R.Civ.P. 12(b)(6); see also Omar v. Sea-Land
Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (district
may sua sponte dismiss a complaint for failure to state a
because of Plaintiffs are proceeding pro se in this matter,
the Court is required to allow them to amend their pleadings
before dismissing this action. Eldridge v. Block,
832 F.2d 1132, 1135-1136 (9th Cir. 1987) ("[P]ro se
litigant bringing a civil rights suit must have an
opportunity to amend the complaint to overcome deficiencies
unless it is clear that they cannot be overcome by
amendment."). Thus, thus the Court will allow Plaintiffs
21 days to cure the deficiencies in its Second Amended
Complaint and file an amended pleading. This pleading must
provide sufficient facts to state a viable claim for relief.
The Court cautions Plaintiffs that failure to allege a
cognizable claim upon which relief may be granted will result
in dismissal of this matter with prejudice.
after the Findings and Recommendations were issued,
Plaintiffs filed a "MOTION FOR EMERGENCY INJUNCTIVE
RELIEF HEARING." (Doc. 15.) This motion requests that
the Court issue an order preventing "AGENTS" of the
"STATE OF MONTANA" from detaining Plaintiffs until
their claims have been adjudicated in this Court. Read
liberally, Plaintiffs are requesting preliminary injunctive
relief from this Court. However, as stated above,
Plaintiffs' Second Amended Complaint fails to meet the
pleading standards established under the Federal Rules of
Civil Procedure. Thus, the Court will deny the motion because
the Second Amended Complaint does not state a claim for
relief and, therefore, Plaintiffs cannot possibility succeed
on the merits of this litigation. See Winter v. Nat.
Resources Def. Council, Inc., 555 U.S. 7, 20 (2008) (in
order to grant preliminary relief, plaintiff "must
establish that he is likely to succeed on the merits").
IT IS ORDERED that:
Judge Lynch's Findings and Recommendations (Doc. 5) are
MODIFIED IN PART and REJECTED IN PART;
Plaintiffs' Second Amended Complaint (Doc. 11) is
DISMISSED without prejudice. Plaintiffs are hereby given
leave to filed an amended pleading in accordance with the
above Order. This ...