United States District Court, D. Montana, Billings Division
MICHAEL F. LAFORGE, Plaintiff,
JANICE GETS DOWN, NATASHA J. MORTON, LEROY NOT AFRAID, SHEILA WILKINSON NOT AFRAID, Defendants.
MORRIS UNITED STATES DISTRICT COURT JUDGE
Michael LaForge, proceeding pro se, filed his Complaint on
May 5, 2017. LaForge seeks relief against defendants for a
divorce decree entered by the Crow Tribal Court. The divorce
decree divides property between LaForge and his ex-wife,
Defendant Janice Gets Down. Defendant Natasha Morton served
as attorney for Gets Down in the underlying divorce action.
filed a motion to dismiss for failure to state a claim (Doc.
11) and a motion to dismiss for lack of prosecution (Doc.
16). Leroy Not Afraid and Sheila Wilkinson Not Afraid
(collectively “Judicial Defendants”) serve as
Crow Tribal Court Judges. Judicial Defendants filed a motion
to dismiss for lack of subject matter jurisdiction and
failure to state a claim (Doc. 20).
States Magistrate Judge Timothy Cavan entered Findings and
Recommendations on December 28, 2017, recommending that the
Court grant the defendants' motions to dismiss without
prejudice. (Doc. 30.) The Court adopted the Findings and
Recommendations in all respects, except the Judicial
Defendants were granted dismissal with prejudice. (Doc. 33.)
The Court warned LaForge “that failure to correct the
deficiencies identified in Judge Cavan's Findings and
Recommendations in any amended pleadings will result in
dismissal with prejudice of the remainder of his
claims.” Id. at 6.
February 2, 2018, well after entry of the initial Findings
and Recommendations but before the Court's order, LaForge
filed a Motion to File Evidence (Doc. 32). Morton timely
filed a response to the motion and request for dismissal with
prejudice on February 9, 2018 (Doc. 34).
Cavan entered Findings and Recommendations in this matter on
May 4, 2018. (Doc. 35.) Neither party filed objections. When
a party makes no objections, the Court need not review de
novo the proposed Findings and Recommendations.
Thomas v. Arn, 474 U.S. 140, 149-52 (1986). The
Court will review Judge Cavan's Findings and
Recommendations, however, for clear error. McDonnell
Douglas Corp. v. Commodore Bus. Machs. Inc., 656 F.2d
1309, 1313 (9th Cir. 1981).
Amendment of Complaint
Cavan determined that LaForge's amended complaint fails
to state a claim for violation of any due process right.
(Doc. 35 at 8.) In order to state a claim for damages under
42 U.S.C. § 1983, a complaint must allege that (1) a
person acting under the color of state law committed the
conduct complained of, and (2) this conduct deprived a person
of rights, privileges, or immunities secured by the
Constitution or laws of the United States. Parratt v.
Taylor, 451 U.S. 527, 535 (1981) (overruled on other
grounds). The Court previously determined that Morton,
serving as counsel for a private party, never acted under the
color of state or federal law. (Doc. 33 at 2-3.) Judge Cavan
correctly determined that LaForge has failed to provide any
basis for the Court to reconsider that conclusion. (Doc. 35
at 8.) LaForge cannot assert a § 1983 claim against
Cavan further determined that LaForge's allegations prove
insufficient to satisfy the standard for stating a viable
conspiracy claim. Id. at 9. A private individual may
“be liable under § 1983 if she conspired or
entered joint action with a state actor.” Crowe v.
County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010)
(quoting Franklin v. Fox, 312 F.3d 423, 441
(9th Cir. 2002)). Conclusory allegations of a
conspiracy fail to support a claim for state action and a
violation of constitutional rights under § 1983.
Woodrum v. Woodward County, Oklahoma, 866 F.2d 1121,
1126 (9th Cir. 1989).
Cavan determined that LaForge did not plead any specific
supporting factual matters that make it plausible to believe
that a conspiracy existed. (Doc. 35 at 9.) The Court agrees.
LaForge fails to plead any facts to support his conclusory
assertions. Like the original Complaint, the amended
complaint fails to set forth any facts that would support a
determination that Morton could be liable for any claim
LaForge has alleged. The Court dismisses the amended
complaint with prejudice and without leave to amend a second
Dismissal under Rule 41(b)
Cavan determined that dismissal with prejudice would be
appropriate under Fed.R.Civ.P. 41(b). Id. at 10. As
explained above, the Court warned LaForge that failure to
file a sufficient amended complaint would result in the
dismissal with prejudice of his remaining claims. Judge Cavan
determined that the Court may dismiss the amended complaint
with prejudice under Rule 41(b) for LaForge's failure to
comply with the Court's previous order. Id. at
considering dismissal under Rule 41(b), a court must weigh
five factors: “(1) the public's interest in
expeditious resolution of litigation; (2) the court's
need to manage its docket; (3) the risk of prejudice to
defendants; (4) the availability of less drastic
alternatives; and (5) the public policy favoring disposition
of cases on their merits.” Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing
Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
1992)). Judge Cavan determined that all five factors weighed
in favor of dismissal. (Doc. 35 at 11-13.) The Court agrees.
the first two factors, LaForge has provided no basis for the
Court to conclude that he will be able to allege any viable
claim against Morton. The Court has given LaForge ample time
to correct ...