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O'Connell v. Montana Supreme Court

United States District Court, D. Montana, Helena Division

October 17, 2019

DANIEL and VALERY O'CONNELL, Plaintiffs,
v.
MONTANA SUPREME COURT, Defendant.

          ORDER AND FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE.

         Plaintiffs 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.

         I. Motion to Proceed In Forma Pauperis

         The 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.

         But there is no reason to delay resolution of this action. The $400.00 filing fee will be waived.

         II. Screening Requirement

         The 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).

         The 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 added).

         Regardless 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.” Fed.R.Civ.P. 12(h)(3).

         III. The O'Connells' Allegations

         In the 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).

         The 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[1] 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 ...

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