DaSilva v. City of Montana et al

Filing 62

ORDER ADOPTING 22 FINDINGS AND RECOMMENDATIONS; denying 19 Motion for Reconsideration ; denying 8 Motion to Add Joshua Ricki as a Defendant; denying Motion to Clarify 21 to the extent that it seeks to add Cascade County Detention Center as a Defendant. Signed by Judge Brian Morris on 4/5/2018. Mailed to DaSilva. (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

ROBERT AYRES DaSILVA, JR.,

CV-17-00115-GF-BMM-JTJ

Plaintiff,
vs.
ORDER
CASCADE COUNTY DETENTION
CENTER, COMMANDER
O’FALLEN, BOB EDWARDS, C/Os
BENNETT, LIGHT, VANZOUT,
TIBBETTS, GAMON, and
WALTERS,
Defendants.

Plaintiff Robert DaSilva filed a Motion to Amend/Compel, a Motion for
Reconsideration, and a Motion to Clarify. United States Magistrate Judge John
Johnston entered Findings and Recommendations in this matter on January 12,
2018. (Doc. 22) The Court granted DaSilva until March 2, 2018, to file any
objections to Judge Johnston’s Findings and Recommendations. (Doc. 36.)
DaSilva filed an objection on March 6, 2018. (Doc. 48.) Though not timely, the
Court will consider DaSilva’s objection in light of his status as a prisoner
proceeding in forma pauperis and without counsel. The Court reviews de novo
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Findings and Recommendations to which a party timely objects. 28 U.S.C. §
636(b)(1). The Court reviews portions of Judge Johnston’s Findings and
Recommendations not specifically objected to for clear error. McDonnell Douglas
Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
DaSilva’s objects to Joshua Racki not being named as a Defendant in this
matter. (Doc. 22 at 6.) DaSilva argues that Racki “is Cascade County’s Chief Law
Enforcement Officer and he should be added because he is employed by Cascade
County, who has been commissioned with the power to act or make decisions of
authority in judicial mandates as well as humanistic interests of the substandard
condition of confinement.” Id. at 7. Judge Johnston determined that DaSilva is a
state prisoner and Racki’s representations to the Bureau of Prisons and/or the
United States Marshals fail to be relevant to this matter. (Doc. 22 at 4.) The Court
agrees. The Court will deny DaSilva’s motion to amend to add Racki as a
Defendant.
DaSilva additionally objects to the motion for reconsideration regarding an
Article II, Section 36 (2017) Montana’s Constitution “Marsy’s Law” Violation.
DaSilva argues that the use of Marsy’s Law should be a new violation. (Doc. 48 at
1.) DaSilva argues that the State proceeded in charging him despite the Montana
Supreme Court’s ruling that Marsy’s Law violates the Montana Constitution. Id. at
2-3. DaSilva contends that the State’s actions are in “bad faith and in a harassing
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manner.” Id. Judge Johnston construed this as a motion for reconsideration to this
Court’s decision to abstain from hearing DaSilva’s claims regarding his ongoing
state court criminal prosecution pursuant to Younger v. Harris, 401 U.S. 37 (1971).
(Doc. 22 at 4.) Notwithstanding DaSilva’s failure to comply with Local Rule 7.3,
his allegations do not plausibly suggest exceptional circumstances that would
render Younger abstention inapplicable. DaSilva has not made a showing of bad
faith, harassment, or other extraordinary circumstances. The Court agrees that
DaSilva has the opportunity to litigate any federal constitutional challenge he may
have in state court.
The Court has reviewed Judge Johnston’s Findings and Recommendations
regarding the motion to amend and the motion for reconsideration de novo. The
Court has reviewed the remaining portions of Judge Johnston’s Findings and
Recommendations for clear error. The Court finds no error in Judge Johnston’s
Findings and Recommendations, and adopts them in full.
IT IS ORDERED that Judge Johnston’s Findings and Recommendations
(Doc. 22) are ADOPTED IN FULL.
IT IS ORDERED that DaSilva’s Motion to Add Joshua Ricki as a
Defendant (Doc. 18) is DENIED.
IT IS ORDERED that DaSilva’s Motion for Reconsideration (Doc. 19) is
DENIED.
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IT IS FURTHER ORDERED that DaSilva’s Motion to Clarify (Doc. 21)
to the extent that it seeks to add Cascade County Detention Center as a Defendant
is DENIED. Cascade County Detention Center will be terminated as a Defendant
on the docket.
DATED this 5th day of April, 2018.

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