Armstrong v. Tescher et al

Filing 3

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Muiria Armstrong, FINDINGS AND RECOMMENDATIONS re 2 Complaint IFP/Prisoner filed by Muiria Armstrong. () Signed by Magistrate Judge Jeremiah C. Lynch on 4/10/2014. (TCL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
MUIRIA ARMSTRONG,
A.A., biological daughter and minor child,
Plaintiff,

CV 14-24-BU-DWM-JCL

ORDER, and FINDINGS
AND RECOMMENDATION

vs.
JOLYNE TESCHER, et al.,
Defendants.

I.

INTRODUCTION
Plaintiff Muiria Armstrong, proceeding pro se, filed a Motion to Proceed In

Forma Pauperis. Armstrong submitted a declaration that makes the showing
required by 28 U.S.C. § 1915(a). Because it appears she lacks sufficient funds to
prosecute this action IT IS HEREBY ORDERED that Armstrong’s Motion to
Proceed In Forma Pauperis is GRANTED. This action may proceed without
prepayment of the filing fee, and the Clerk of Court is directed to file Armstrong’s
lodged Complaint as of the filing date of her request to proceed in forma pauperis.
The federal statute under which leave to proceed in forma pauperis is
permitted — 28 U.S.C. § 1915 — also requires the Court to conduct a preliminary
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screening of the allegations set forth in the litigant’s pleading. The applicable
provisions of section 1915(e)(2) state as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
that–
(A) the allegation of poverty is untrue; or
(B) the action or appeal–
(I) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
The Court will review Armstrong’s pleading to consider whether this action
can survive dismissal under either the provisions of section 1915(e)(2), or any
other provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142
(9th Cir. 2005).
II.

PLAINTIFF’S ALLEGATIONS
Armstrong commenced this action seeking relief with respect to what she

calls the “loss of [her] child”, and her custody of her daughter, A.A. (Doc. 2 at 7.)
Most of the individuals named as Defendants are sued in their capacities as

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employees of the State of Montana’s Department of Public Health and Human
Services, Child and Family Services Division and/or Child Protective Services
Division. Armstrong does not set forth any factual allegations on the face of her
pleading. Instead, she refers to documents attached to her pleading. She does,
however, allege the existence of a conspiracy, fraud, false claims, and extortion.
She also wrote the following on her pleading: “My 4th & 14th & 9th”. (Doc. 2 at 7.)
The Court presumes Armstrong purports to reference rights protected under the 4th,
14th, and 9th Amendments to the United States Constitution.
For her relief in this action Armstrong requests that the Court (1) declare
that “all” documents relative to her custody of her daughter are “inadmissib[le]”,
(2) award her punitive damages, (3) vacate any order issued regarding her parental
rights and custody of her daughter, and (4) return her daughter to her custody.
The documents attached to Armstrong’s pleading, and to which she refers,
are all related to a state court action, In the matter of [A.A.], Youth in Need of
Care, Cause No. DN-12-07 BN, filed in the Montana Second Judicial District
Court, Silver Bow County. The documents filed reflect that the subject of the
referenced state court action involves Armstrong’s legal custody of A.A. Further,
although the last docket entry in that case apparently was on November 29, 2013
(doc. 2-1 at 7), because Armstrong attached the court documents to her pleading it
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appears that her intent in filing this action is to challenge the proceedings which
occurred in the referenced state court action.
III.

DISCUSSION
Because Armstrong is proceeding pro se the Court must construe her

pleading liberally, and the pleading is held “to less stringent standards than formal
pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972). See
also Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Although the Court has
authority to dismiss a defective pleading pursuant to 28 U.S.C. § 1915(e)(2),
a district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly
be cured by the allegation of other facts.
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995)).
Since Armstrong’s claims, as framed in her pleading, purportedly assert
rights which “aris[e] under the Constitution[,]” the Court has subject matter
jurisdiction over this action pursuant to 28 U.S.C. § 1331. Nonetheless, despite
possessing federal question jurisdiction, the nature of Armstrong’s claims are such
that the Court must abstain from exercising that jurisdiction.
There is a strong policy against federal intervention in pending state judicial
processes in the absence of extraordinary circumstances. Younger v. Harris, 401
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U.S. 37, 43-45 (1971). See also Gilbertson v. Albright, 381 F.3d 965, 973 (9th Cir.
2004) (quoting Middlesex County Ethics Committee v. Garden State Bar
Association, 457 U.S. 423, 431 (1982)). “Younger abstention is a jurisprudential
doctrine rooted in overlapping principles of equity, comity, and federalism.” San
Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of
San Jose, 546 F.3d 1087, 1091 (9th Cir. 2008). The Younger doctrine directs
federal courts to abstain from granting injunctive or declaratory relief that would
interfere with pending state or local proceedings. Gilbertson, at 381 F.3d at 968.1
The Ninth Circuit has concluded that the federal courts must abstain under
Younger if the following four requirements are met:
(1) a state-initiated proceeding is ongoing; (2) the proceeding implicates
important state interests; (3) the federal plaintiff is not barred from litigating
federal constitutional issues in the state proceeding; and (4) the federal court
action would enjoin the proceeding or have the practical effect of doing so,
i.e., would interfere with the state proceeding in a way that Younger
disapproves.
City of San Jose, 546 F.3d at 1092 (citing Gilbertson, 381 F.3d at 978, and
AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1149 (9th Cir.2007)).
Where applicable, Younger abstention is mandatory. Absent exceptional

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Federal courts may raise the issue of Younger abstention sua sponte. See
Bellotti v. Baird, 428 U.S. 132, 143-44 n.10 (1976) and The San Remo Hotel v.
City and County of San Francisco, 145 F.3d 1095, 1103 n.5 (9th Cir. 1998).
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circumstances, the district courts do not have discretion to avoid the doctrine if the
elements of Younger abstention exist in a particular case. City of San Jose, 546
F.3d at 1092 (citation omitted). The recognized exceptional circumstances are
limited to “a ‘showing of bad faith, harassment, or some other extraordinary
circumstance that would make abstention inappropriate.’” Id., (quoting Middlesex
County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 435
(1982)).
All of the elements of Younger abstention exist under the circumstances of
this case as presented by Armstrong. First, her allegations and the attached
documents reference youth-in-need-of-care proceedings regarding her daughter,
A.A., prosecuted in the Montana Second Judicial District Court, Silver Bow
County.
Second, the referenced state court proceedings implicate important state
interests. The State of Montana, through its executive agencies, has a significant
state interest in providing protective services for children, and seeking and
obtaining assistance in protecting those interests through the state court system.
“Family relations are a traditional area of state concern.” H.C. ex rel. Gordon v.
Koppel, 203 F.3d 610, 613 (9th Cir. 2000) (citation and quotation omitted).
Additionally, the state has an interest in protecting the authority of its judicial
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system. Id. This Court may not interfere with those interests when the child
protective proceedings are ongoing as indicated by Armstrong.
Third, with regard to Armstrong’s opportunity to raise any issue, or to assert
any Constitutional right in the state court, she bears the burden to establish “that
state procedural law bar[s] presentation of [her] claims[]” in those proceedings.
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987) (quoting Moore v. Sims, 442
U.S. 415, 432 (1979)). Armstrong has not set forth any allegation suggesting she
will be barred from presenting any issues in the state proceedings.
Fourth, Armstrong’s apparent objective in this action is to obtain custody of
A.A., and to have this Court vacate orders issued in the referenced state court
action pertaining to A.A. Thus, this federal court action would interfere with or
enjoin the state court proceedings, or have the practical effect of doing so, and
would interfere with those proceedings in a way that Younger disapproves. Where
injunctive and declaratory relief is sought a dismissal of those claims is
appropriate. Gilbertson, 381 F.3d at 981.
Finally, Armstrong has not identified any exceptional circumstances that
would render Younger abstention inapplicable.
IV.

CONCLUSION
Based on the foregoing, IT IS HEREBY RECOMMENDED that this action
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be DISMISSED without prejudice.
DATED this 10th day of April, 2014.

Jeremiah C. Lynch
United States Magistrate Judge

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