LaForge v. Gets Down et al
Filing
36
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; It is ordered that LaForge's Motion to File Evidence 32 is construed as a motion to amend LaForge's Complaint and is granted; It is further ordered that Defendant Natasha Morton's Request for Dismissal With Prejudice 34 is granted. Signed by Judge Brian Morris on 6/18/2018. Copy sent via US Mail to plaintiff. (JEC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
MICHAEL F. LAFORGE,
CV-17-48-BLG-BMM-TJC
Plaintiff,
vs.
ORDER
JANICE GETS DOWN, NATASHA J.
MORTON, LEROY NOT AFRAID,
SHEILA WILKINSON NOT
AFRAID,
Defendants.
Plaintiff Michael LaForge, proceeding pro se, filed his Complaint on May 5,
2017. LaForge seeks relief against defendants for a divorce decree entered by the
Crow Tribal Court. The divorce decree divides property between LaForge and his
ex-wife, Defendant Janice Gets Down. Defendant Natasha Morton served as
attorney for Gets Down in the underlying divorce action.
Morton filed a motion to dismiss for failure to state a claim (Doc. 11) and a
motion to dismiss for lack of prosecution (Doc. 16). Leroy Not Afraid and Sheila
Wilkinson Not Afraid (collectively “Judicial Defendants”) serve as Crow Tribal
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Court Judges. Judicial Defendants filed a motion to dismiss for lack of subject
matter jurisdiction and failure to state a claim (Doc. 20).
United States Magistrate Judge Timothy Cavan entered Findings and
Recommendations on December 28, 2017, recommending that the Court grant the
defendants’ motions to dismiss without prejudice. (Doc. 30.) The Court adopted
the Findings and Recommendations in all respects, except the Judicial Defendants
were granted dismissal with prejudice. (Doc. 33.) The Court warned LaForge “that
failure to correct the deficiencies identified in Judge Cavan’s Findings and
Recommendations in any amended pleadings will result in dismissal with prejudice
of the remainder of his claims.” Id. at 6.
On February 2, 2018, well after entry of the initial Findings and
Recommendations but before the Court’s order, LaForge filed a Motion to File
Evidence (Doc. 32). Morton timely filed a response to the motion and request for
dismissal with prejudice on February 9, 2018 (Doc. 34).
Judge Cavan entered Findings and Recommendations in this matter on May
4, 2018. (Doc. 35.) Neither party filed objections. When a party makes no
objections, the Court need not review de novo the proposed Findings and
Recommendations. Thomas v. Arn, 474 U.S. 140, 149-52 (1986). The Court will
review Judge Cavan’s Findings and Recommendations, however, for clear error.
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McDonnell Douglas Corp. v. Commodore Bus. Machs. Inc., 656 F.2d 1309, 1313
(9th Cir. 1981).
I.
Amendment of Complaint
Judge Cavan determined that LaForge’s amended complaint fails to state a
claim for violation of any due process right. (Doc. 35 at 8.) In order to state a claim
for damages under 42 U.S.C. § 1983, a complaint must allege that (1) a person
acting under the color of state law committed the conduct complained of, and (2)
this conduct deprived a person of rights, privileges, or immunities secured by the
Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535
(1981) (overruled on other grounds). The Court previously determined that
Morton, serving as counsel for a private party, never acted under the color of state
or federal law. (Doc. 33 at 2-3.) Judge Cavan correctly determined that LaForge
has failed to provide any basis for the Court to reconsider that conclusion. (Doc. 35
at 8.) LaForge cannot assert a § 1983 claim against Morton.
Judge Cavan further determined that LaForge’s allegations prove
insufficient to satisfy the standard for stating a viable conspiracy claim. Id. at 9. A
private individual may “be liable under § 1983 if she conspired or entered joint
action with a state actor.” Crowe v. County of San Diego, 608 F.3d 406, 440 (9th
Cir. 2010) (quoting Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002)). Conclusory
allegations of a conspiracy fail to support a claim for state action and a violation of
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constitutional rights under § 1983. Woodrum v. Woodward County, Oklahoma, 866
F.2d 1121, 1126 (9th Cir. 1989).
Judge Cavan determined that LaForge did not plead any specific supporting
factual matters that make it plausible to believe that a conspiracy existed. (Doc. 35
at 9.) The Court agrees. LaForge fails to plead any facts to support his conclusory
assertions. Like the original Complaint, the amended complaint fails to set forth
any facts that would support a determination that Morton could be liable for any
claim LaForge has alleged. The Court dismisses the amended complaint with
prejudice and without leave to amend a second time.
II.
Dismissal under Rule 41(b)
Judge Cavan determined that dismissal with prejudice would be appropriate
under Fed. R. Civ. P. 41(b). Id. at 10. As explained above, the Court warned
LaForge that failure to file a sufficient amended complaint would result in the
dismissal with prejudice of his remaining claims. Judge Cavan determined that the
Court may dismiss the amended complaint with prejudice under Rule 41(b) for
LaForge’s failure to comply with the Court’s previous order. Id. at 11.
In considering dismissal under Rule 41(b), a court must weigh five factors:
“(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need
to manage its docket; (3) the risk of prejudice to defendants; (4) the availability of
less drastic alternatives; and (5) the public policy favoring disposition of cases on
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their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing
Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). Judge Cavan
determined that all five factors weighed in favor of dismissal. (Doc. 35 at 11-13.)
The Court agrees.
Regarding the first two factors, LaForge has provided no basis for the Court
to conclude that he will be able to allege any viable claim against Morton. The
Court has given LaForge ample time to correct the deficiencies in his prior
complaint. He has failed to do so.
The Court further agrees that it would result in undue prejudice to force
Morton to remain in this case, simply awaiting the unlikely result that LaForge
eventually files a sufficient claim against her. Id. at 12. Regarding the fourth factor,
the Court attempted the less-drastic measure of dismissing LaForge’s claims
against Morton without prejudice. The Court provided LaForge a second
opportunity to file a sufficient complaint, and he has failed to do so. Finally, the
fifth factor also weighs in favor of dismissal. Dismissal for failure to state a claim
upon which relief may be granted constitutes a disposition on the merits. Stewart v.
U.S. Bancorp, 297 F.3d 953, 957 (9th Cir. 2002).
III.
Conclusion
The Court has reviewed Judge Cavan’s Findings and Recommendations for
clear error. The Court will adopt Judge Cavan’s Findings and Recommendations.
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IT IS ORDERED that Judge Cavan’s Findings and Recommendations (Doc.
35), are ADOPTED IN FULL.
IT IS ORDERED that LaForge’s Motion to File Evidence (Doc. 32), is
construed as a motion to amend LaForge’s Complaint. This motion is GRANTED.
IT IS FURTHER ORDERED that Defendant Natasha Morton’s Request for
Dismissal With Prejudice (Doc. 34) is GRANTED.
DATED this 18th day of June, 2018.
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