United States District Court, D. Montana, Helena Division
ORDER AND FINDINGS AND RECOMMENDATION OF U.S.
JOHNSTON UNITED STATES MAGISTRATE JUDGE.
Daniel and Valery O'Connell filed this action on July 17,
2019. They seek trial and injunctive relief against orders
entered in courts of the State of Montana as well as
declaratory relief holding that the Montana Supreme Court
violated their federal constitutional rights. See
Compl. (Doc. 1) at 1.
Motion to Proceed In Forma Pauperis
O'Connells' motion is irregular and unpersuasive. To
support their declaration of their monthly income, they
attach a letter from the Department of Veterans Affairs. The
letter is dated September 28, 2015, and someone blacked out
the letter's report of their monthly income and wrote in
a figure that matches the O'Connells' self-report.
See Mot. Ex. VA Letter (Doc. 1-1) at 1.
there is no reason to delay resolution of this action. The
$400.00 filing fee will be waived.
O'Connells are proceeding in forma pauperis. The Court
must review the complaint to determine whether it fails to
state a claim on which relief may be granted. See 28
U.S.C. § 1915(e)(2)(B)(ii).
O'Connells are also self-represented. “A document
filed pro se is to be liberally construed, and a
pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam) (internal quotation marks and
citation omitted). Courts must briefly explain deficiencies
that may be cured by amendment, see Akhtar v. Mesa,
698 F.3d 1202, 1212 (9th Cir. 2012), but if a claim cannot be
cured by amendment, “the court shall
dismiss” it, 28 U.S.C. § 1915(e)(2) (emphasis
of fee status or self-representation, “[i]f the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
The O'Connells' Allegations
fall of 2017, the district court in Montana's Sixth
Judicial District, Park County, granted a temporary
protective order against the O'Connells. A permanent
order was issued in June 2018. The O'Connells are
prohibited from contacting members of the Board of Directors
of the Glastonbury Landowners Association (“GLA”)
and must maintain a specific physical distance as well.
See Compl. at 3, 7, 15; Compl. Ex. Final Order of
Protection (Doc. 2-1 at 2-3). The O'Connells appealed to
the Montana Supreme Court. On May 28, 2019, the Montana
Supreme Court affirmed the district court, and on June 25,
2019, it denied rehearing. See Compl. Ex. Orders
(Doc. 2-1 at 4-17).
O'Connells assert that the protective orders were not
entered in accordance with applicable laws and procedures.
They assert violations of their First Amendment right to free
speech, their Fifth Amendment right to due process, and their
Sixth Amendment right to present a defense. See
Compl. (Doc. 2) at 2-6. They state:
O'Connells' appeal to Montana Supreme Court said all
this above; yet Montana Supreme Court refused to correct
these first amendment free speech rights violations cited in
the appeal and lower court; and fifth amendment due process
right violations cited in the appeal and lower court; and