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Flynn v. Pabst

United States District Court, D. Montana, Missoula Division

September 30, 2019

KENNETH JAY FLYNN, Plaintiff,
v.
KIRSTEN PABST, et al., Defendants.

          ORDER

          Dana L. Christensen, United States District Court Chief Judge

         Plaintiff Kenneth Flynn has filed a Complaint and Amended Complaint under 42 U.S.C. § 1983 alleging constitutional violations with regard to his criminal prosecution in Missoula, Montana. (Docs. 1, 13.) Defendants have filed motions to dismiss (Docs. 47, 49, 52, 55, and 57) and Mr. Flynn has filed a motion to change venue and a motion requesting an explanation why Magistrate Judge DeSoto recused herself from this matter. (Docs. 76, 77). Defendants' Motions will be granted and this matter dismissed.[1]

         I. STATEMENT OF THE CASE

         A. Parties

         Mr. Flynn is proceeding without counsel. In his original Complaint, Mr. Flynn named the following Defendants: Missoula County Attorney Kirsten Pabst, Deputy County Attorney Selene Koepke, Judge Karen Townsend, Mark Fullerton Investigations, the Missoula Police Department and attorneys Hermon Chuck Watson, Colin Stephens, John Smith, Scott Albers, Watson Law, and Hermon Watson IV. In his Amended Complaint, Mr. Flynn also named Robert Thompson, an investigator with the Missoula Police Department and investigator Mark Fullerton. (Doc. 13 at 4-5.) Defendants Missoula Police Department and Robert Thompson have not been served.

         B. Allegations

         Mr. Flynn alleges that on October 15, 2016, he was alerted to an assault attempt from his warehouse next door. He initially stopped the attempted illegal entry but the alleged assailants came through his front door and assaulted him. (Complaint, Doc. 1 at 7.) On October 31, 2016, Deputy County Attorney Selene Koepke filed an Information against Mr. Flynn arising from this incident charging him with two counts of assault with a weapon. (Doc. 53-1.) Mr. Flynn alleges there was video surveillance of the incident which proved his innocence but it was not used by the prosecutors, the judge, or his criminal defense attorneys. He contends this was done in violation of his constitutional rights. (Complaint, Doc. 1 at 7.) The charges against Mr. Flynn were dismissed on January 8, 2019. (Doc. 53-9.)

         II. MOTIONS TO DISMISS

         A. Standard

         For purposes of this Order, the Court will only consider Defendants' Motions to Dismiss pursuant to Rule 12(b)(6). Dismissal under Fed.R.Civ.P. 12(b)(6) may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). A plaintiffs complaint must allege sufficient facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has "facial plausibility" when the party seeking relief "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

         Although the court must accept as true the plaintiffs well-pled facts, conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper 12(b)(6) motion to dismiss. Vazquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). "[A] plaintiffs obligation to provide the 'grounds' of his 4 entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl Corp, v. Twombly, 550 U.S. 544, 555 (2007) (citations and footnotes omitted).

         B. Analysis

         1. Defendants Koepke and Pabst's Motion to Dismiss

         Defendants Koepke and Pabst are prosecutors with the Missoula County Attorney's Office. Generally a prosecutor is absolutely immune when acting as an advocate for the state by engaging in conduct that is "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman,424 U.S. 409, 430-31 (1976); see also Van de Kamp v. Goldstein,555 U.S. 335 (2009). This means that "acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protection of absolute immunity." Buckley v. Fitzsimmom,509 U.S. 259, 273 (1993). "This immunity covers the knowing use of false testimony at trial, the suppression of exculpatory evidence, and malicious prosecution." Milstein v. Cooley,257 F.3d 1004, 1008 (9th Cir. 2001) (citingImbler, 424 U.S. at 416); see also Genzler v. Longanbach,410 F.3d 630, 637 (9th Cir. 2005) (noting that "prosecutor enjoys absolute immunity from a suit alleging that he maliciously initiated a prosecution, used perjured testimony at trial, or suppressed material evidence at trial," among other things); Reid v. New Hampshire,56 F.3d 332, 336 (1st Cir. 1995) (a prosecutor cannot be held personally liable for the knowing suppression of exculpatory information even if they fail to disclose exculpatory evidence specifically requested by the defense or mislead the trial court to conceal their failure to disclose ...


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