United States District Court, D. Montana, Billings Division
DANIEL K. O'CONNELL, VALERY A. O'CONNELL, CHRISTAL O'CONNELL, SHANNON O'CONNELL, VESTA O'CONNELL Petitioners,
GLASTONBURY LANDOWNERS ASSOCIATION INCORPORATED, GLASTONBURY LANDOWNERS BOARD OF DIRECTORS, Respondents.
ORDER AND FINDINGS AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE
Daniel K. O'Connell, Valery A. O'Connell, Christal
O'Connell, Shannon O'Connell, and Vesta O'Connell
filed a Motion for Leave to Proceed in Forma Pauperis (Doc.
1), and a proposed Complaint alleging constitutional
violations stemming from their state court proceedings. (Doc.
2.) The motion to proceed in forma pauperis will be granted,
but the Complaint should be dismissed for lack of subject
Motion To Proceed In Forma Pauperis
O'Connells filed their motion to proceed in forma
pauperis and submitted an account statement sufficient to
make the showing required by 28 U.S.C. §1915(a). (Docs.
1 &1-1.) Because it appears the O'Connells lack
sufficient funds to prosecute this action, the motion to
proceed in forma pauperis will be granted.
explained below, the O'Connells' complaint should be
dismissed for lack of subject matter
State Court Proceedings
O'Connells have been engaged in protracted litigation
with the Glastonbury Landowners Association and its Board of
Directors. On May 8, 2017, judgment was entered against
Daniel and Valery O'Connell in Montana's Sixth
Judicial District Court, Park County. (Doc. 2 at 31-33.)
Defendant Glastonbury Landowners Association, Inc. was
awarded its attorney's fees in the amount of $18, 128.75,
for which Daniel and Valery were held jointly and severally
liable. Id. at 32. In addition, Valery, Daniel, and
their children, Christal, Shannon, and Vesta, were all
declared to be vexatious litigants, and were ordered to
obtain approval from a Montana State court prior to making
future filings. Id.
post-judgment proceedings, the O'Connells filed a motion
for an out-of-time appeal with the Montana Supreme Court.
First, the O'Connells challenged the Montana Supreme
Court's prior determination that their appeal was
untimely. Next, the O'Connells asserted an out-of-time
appeal was warranted for the children because they were not
properly served prior to the district court's
determination that the children were vexatious litigants.
See, O'Connell, et. al. v. Glastonbury Landowners
Ass'n, et. al., DA 18-0483, Or. at 2 (filed Sep. 4,
2018);see also (Doc. 2 at 15-28.)
Montana Supreme Court did not find the first issue advanced
by the O'Connells to be persuasive. Id. The
Court did, however, grant an out-of-time appeal relative to
the issue surrounding the children and specifically limited
the appeal to the following claim: Whether the District Court
properly entered the vexatious litigant order against the
O'Connell Children in DV-2011-114. Id. at 3
(emphasis in original). That matter is currently pending; the
O'Connell children were directed to file a notice of
appeal, through counsel, by November 5, 2018. Id. at
The O'Connells' Allegations
O'Connells claim their 5th Amendment right to Due Process
and 6th Amendment right to a fair trial and hearing have been
violated by the state district court and the Montana Supreme
Court as a result of the actions outlined above. (Doc. 2 at
10, ¶ (A)(1)). In support of the claims, the
O'Connells have attached the bulk of the appellate brief
they filed with the Montana Supreme Court in support of their
motion for an out-of-time appeal. Cf., (Doc. 2 at 15-28) with
O 'Connell, et. al. v. Glastonbury Landowners
Ass'n, et. al., DA 18-0483, Motion (filed Aug. 15,
2018). The O'Connells allege these constitutional
violations have resulted in monetary injury in the amount of
$18, 128.75 - the amount of attorney's fees awarded to
the Glastonbury Landowners Association, Inc. in the
underlying state court case, Cause No. DV-2011-114. (Doc. 2
at 11, ¶ (V)); see also, (Doc. 2 at 32, ¶ 3.)
O'Connells ask this Court to: reverse the constitutional
violations; reverse the state court judgment entered against
them; allow punitive damages and costs against the
Glastonbury Landowners Association; and assume jurisdiction
of O'Connell, et. al. v. Glastonbury Landowners
Association, et. al., Cause No. DV-2011-114. (Doc. 2 at
11, ¶ (VI)).
Screening Pursuant to 28 ...