United States District Court, D. Montana, Missoula Division
L. Christensen, United States District Court Chief Judge
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
STATEMENT OF THE CASE
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.
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.)
MOTIONS TO DISMISS
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."
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).
Defendants Koepke and Pabst's Motion to Dismiss
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 ...