United States District Court, D. Montana, Billings Division
MICHAEL F. LAFORGE, Plaintiff,
JANICE GETS DOWN, NATASHA S. MORTON, LEROY NOT AFRAID, SHELIA WILKENSON NOT AFRAID, Defendants.
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE
Michael LaForge, proceeding pro se, filed this action on May
5, 2017. (Doc. 9.) Plaintiff sought relief against several
defendants relating to a divorce decree entered by the Crow
Tribal Court. Plaintiff sued his ex-wife, Janice Gets Down,
Gets Down's attorney, Natasha Morton, and Crow Tribal
Court Judges, Leroy Not Afraid and Sheila Wilkinson Not
Afraid (the “Judicial Defendants”).
(Id.) The Judicial Defendants and Morton have been
dismissed from this action with prejudice. (See
Docs. 33, 36.)
it did not appear that Plaintiff had ever served Gets Down,
the Court ordered Plaintiff to show cause, in writing why
this case should not be dismissed for failure to effect
service as required by Fed.R.Civ.P. 4. (Doc. 37.) In
response, Plaintiff filed a “Motion to File Evidence,
” which consists of photocopies of envelopes addressed
to Gets Down. (Doc. 38.) The envelopes indicate that the
letters were returned to Plaintiff as undeliverable on June
6, 2017 and November 30, 2017, respectively. (Id.)
Plaintiff does not explain whether any other efforts were
made to locate or serve Gets Down. Based on the information
before the Court, it does not appear that Plaintiff effected
valid service on Gets Down. See Fed.R.Civ.P. 4(c),
(e). Nevertheless, because Plaintiff is proceeding in forma
pauperis pursuant to 28 U.S.C. § 1915, the Court must
assist with service. See 28 U.S.C. § 1915(d);
Puett v. Blandford, 912 F.2d 270, 275 (9th Cir.
1990). Before the Court directs service, however, the Court
finds it prudent to consider the adequacy of the claims
against Gets Down.
trial court may act on its own initiative to note the
inadequacy of a complaint and dismiss it for failure to state
a claim . . . .'” Sparling v. Hoffman Const.
Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988) (quoting
Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981).
The Court may dismiss a claim sua sponte under
Fed.R.Civ.P. 12(b)(6) without notice where the plaintiff
cannot possibly obtain relief. Sparling, 864 F.2d at
638; Omar v. Sea-Land Service, Inc., 813 F.2d 986,
991 (9th Cir. 1987). “Dismissal under Rule 12(b)(6) is
proper when the complaint either (1) lacks a cognizable legal
theory or (2) fails to allege sufficient facts to support a
cognizable legal theory.” Zixiang Li v. Kerry,
710 F.3d 995, 999 (9th Cir. 2013) (quoting Mendiondo v.
Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.
original Complaint was dismissed for failure to state a
33.) The dismissal was with prejudice as to the Judicial
Defendants and without prejudice as to Morton. (Id.)
Plaintiff was permitted leave to amend, and on February 2,
2018, Plaintiff filed a “Motion to File Evidence”
which was construed as an Amended Complaint. (Docs. 32, 35.)
The filing consisted of a letter from the Regional Director
of the BIA to the Crow Tribal Chairman, an attached report
regarding the Crow Tribal Court's compliance with a P.L.
93-638 contract, and Plaintiff's handwritten statement
consisting of a single paragraph:
So much corruption going on in the tribal system. [T]he
Judges favor lawyers that they choose, [I] was not given due
process of the law, they all conspired in the illegal removal
of my home that sits on my trust land.
Court determined the Amended Complaint again failed state a
claim for relief, and therefore, dismissed the claims against
Morton with prejudice. (Doc. 36.) The Court did not consider
whether the Amended Complaint was sufficient to state a claim
against Gets Down because she had not appeared in the case.
Court now finds the Amended Complaint fails to state a claim
against Gets Down. Construing the Amended Complaint
liberally, the Court finds Plaintiff has asserted the
following potential claims against Gets Down: (1) a claim for
violation of due process under 42 U.S.C. § 1983 and (2)
a conspiracy claim.
§ 1983 Claim
Plaintiff alleges he was not given due process of law.
Section 1983 “creates a civil cause of action against a
person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State deprives another
person of any of their rights, privileges, or immunities
secured by the Constitution and laws.” Gates v.
Alameda County Sheriff's Dept., 2012 WL 3537040, *3
(N.D. Cal. Aug. 14, 2012). “In order to state a claim
for damages under § 1983, a complaint must allege that
(1) ‘the conduct complained of was committed by a
person acting under color of state law,' and that (2)
‘this conduct deprived a person of rights, privileges,
or immunities secured by the Constitution or laws of the
United States.'” Id. (quoting Parratt
v. Taylor, 451 U.S. 527, 535, (1981) (overruled on other
present case, Gets Down, a private party, was not, by mere
virtue of being a party to a divorce proceeding in tribal
court, acting under color of state or federal law.
Accordingly, she is not a person against whom Plaintiff can
assert a § 1983 claim for deprivation of any due process
right. See e.g., Price v. Hawaii, 939 F.2d 702,
707-08 (9th Cir. 1991) (private parties generally do not act
under color of state law for § 1983 purposes);
Briscoe v. LaHue, 460 U.S. 325, 329-30 (1983)
(private party's testimony in court is not an act
performed under color of state law); Read v. Klein,
1 Fed.Appx. 866, 871-872 (10th Cir. Jan. 9, 2001) (holding
the plaintiff's ex-wife was not a state actor merely
because she obtained orders from a state court judge in a
divorce proceeding); Harvey v. Harvey, 949 F.2d
1127, 1133-34 (11th Cir. 1992) (“Use of courts by
private parties does not constitute an act under color of
state law.”); Kilat v. Kilat, 2010 WL 3860643
at *2 (N.D. Ohio Sept. 28, 2010) (dismissing the
plaintiff's § 1983 due process claim against his
ex-wife arising out of a divorce proceeding because she was
“a private party and could not have been acting under
color of state law”).
Court therefore finds Plaintiff cannot state a viable claim
for violation of any ...