Flesch v. Moody

Filing 3

ORDER DISMISSING CASE. This dismissal counts as a strike pursuant to 28 U.S.C. 1915(g). Any appeal would nto be taken in good faith. Signed by Judge Dana L. Christensen on 3/10/2025. Transmitted electronically to prison for delivery to inmate. (TAG)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
CODY J. V. FLESCH,

Cause No. CV 25-14-H-DLC

Plaintiff,
vs.

ORDER

PATRICK MOODY,
Defendant.
On February 14, 2025, Plaintiff Cody Flesch filed a 42 U.S.C. § 1983
Complaint. (Doc. 1.) The Complaint as drafted fails to state a claim that entitles
Flesch to relief, and is not proper for federal intervention. The Complaint is
dismissed.
I. STATEMENT OF THE CASE
A.

Parties

Flesch is an inmate at Montana State Prison. He names Powell County
Deputy County Attorney Patrick Moody, as defendant. (Doc. 1 at 2.)
B. Allegations
On March 4, 2023, Flesch got into an altercation with another inmate,
Bates, in the chow hall at Montana State Prison. Staff members used pepper spray
and stopped the fight. Both parties were sent to the infirmary, where pictures were
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taken of both, and then taken to restricted housing for prehearing confinement.
(Doc. 1-1 at 1.) Flesch was searched, and three weapons were supposedly found in
special pockets he had made in his shorts. He and Bates were both written up for
fighting and refusing a direct order, and Flesch was also written up for possession
of a weapon. Several officers wrote reports related to the incident. A nurse wrote a
report about Bates, and stated he had no open injuries. Id. At his disciplinary
hearing on March 7, 2023, Flesch was found not guilty of fighting, because he had
been assaulted by Bates. He was, however, found guilty of possession of a weapon
and was given 30 days in the hole. (Doc. 1-1 at 2.)
On July 24, 2023, Defendant Moody filed a motion in state district court for
leave to file a felony information charging Flesch with one count of assault with a
weapon, and one count of possession of a deadly weapon by a prisoner in a facility,
including an affidavit in support. (Doc. 1-1 at 2.) In the affidavit, Moody stated,
under oath, that he had information from law enforcement that Flesch had stabbed
Bates repeatedly. (Doc. 1-1 at 2.) The affidavit also describes a video from the
chow hall that shows Flesch sneaking up on Bates and stabbing him. Moody
asserts there were photos taken of Bates that reveal slashes on him “consistent with
a weapon,” which led Moody to conclude there were sufficient facts to support the
Information. Id.
That same day, leave was granted. Four months later, on November 28,
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2023, Moody moved to dismiss the assault with a weapon charge, with prejudice.
Flesch went to trial on the possession of a deadly weapon charge and was
convicted.
Flesch’s Complaint describes the content of the several investigative reports
compiled by MSP staff. None of them describes any stabbing. Flesch’s claim is
that Moody fabricated the claim regarding a stabbing in his affidavit in order to file
the Information, in violation of Flesch’s Fourteenth Amendment due process
rights. (Doc. 1-1 at 5.) Flesch alleges that being subject to the assault charge was a
deprivation of his liberty. (Doc. 1-1 at 7.)
II. SCREENING PURSUANT TO 28 U.S.C. §1915A
Flesch is an inmate suing a governmental defendant, so the Court must
review his Complaint under 28 U.S.C. §1915A. Section 1915A(b) requires the
Court to dismiss a complaint filed in forma pauperis and/or by a prisoner against a
governmental defendant if it is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief. A complaint is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “A case is
malicious if it was filed with the intention or desire to harm another.” Andrews v.
King, 398 F.3d 1113, 1121 (9th Cir. 2005). A complaint fails to state a claim upon
which relief may be granted if a plaintiff fails to allege the “grounds” of his
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“entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quotation omitted).
Rule 8 of the Federal Rules of Civil Procedure provides that a complaint
“that states a claim for relief must contain . . . a short and plain statement of the
claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
complaint must “contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotations omitted). A complaint’s allegations must cross “the line from
conceivable to plausible.” Iqbal, 556 U.S. at 680.
There is a two-step procedure to determine whether a complaint’s
allegations cross that line. See Twombly, 550 U.S. at 556; Iqbal, 556 U.S. 662.
First, the Court must identify “the allegations in the complaint that are not entitled
to the assumption of truth.” Iqbal, 556 U.S. at 679, 680. Factual allegations are not
entitled to the assumption of truth if they are “merely consistent with liability,” or
“amount to nothing more than a ‘formulaic recitation of the elements’ of a
constitutional” claim. Id. at 679, 681. A complaint stops short of the line between
probability and the possibility of relief where the facts pled are merely consistent
with a defendant’s liability. Id. at 678.
Second, the Court must determine whether the complaint states a “plausible”
claim for relief. Iqbal, 556 U.S. at 679. A claim is “plausible” if the factual
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allegations, which are accepted as true, “allow[ ] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. at 678. This
inquiry is “a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679 (citation omitted). If the factual
allegations, which are accepted as true, “do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. (citing Fed. R. Civ. P.
8(a)(2)).
“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. Pardu, 551 U.S. 89, 94 (2007);
cf. Fed. Rule Civ. Proc. 8(e) (“Pleadings must be construed so as to do justice”).
1. Immunity
Prosecuting attorneys who act within the scope of their duties are absolutely
immune from a suit brought for damages under 42 U.S.C. § 1983 “insofar as that
conduct is ‘intimately associated with the judicial phase of the criminal process.’ ”
Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v. Pachtman, 424 U.S.
409, 431 (1976)); see also Ashelman v. Pope, 793 F.2d 1072, 1076, 1078 (9th Cir.
1986). This is so even if the prosecutor has violated a plaintiff's constitutional
rights or acts with malicious intent. Broam v. Bogan, 320 F.3d 1023, 1028-29 (9th
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Cir. 2003); Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005). Prosecutors
are absolutely immune from suit when they function as advocates. Imbler, 424
U.S. at 430–31. “Prosecutors are absolutely immune from liability for the
consequences of their advocacy, however inept or malicious, because it is filtered
through a neutral and detached judicial body[.]” Lacey v. Maricopa Cnty., 693 F.3d
896, 913 (9th Cir. 2012).
Flesch asserts that Moody does not enjoy this immunity for the statements
made in his sworn affidavit in support of his motion for leave to file an
information, because those were testimonial. (Doc. 1-1 at 7 – 8.) Flesch’s assertion
is incorrect. There is no doubt that the act of submitting the motion itself is a
prosecutorial act, an attempt to initiate a prosecution, and thus, Moody is entitled
to immunity for that. Briscoe v. LaHue, 460 U.S. 325, 334 (1983). It would pose a
peculiar conundrum to grant a prosecutor immunity for filing a motion, but not for
the contents of a document appended to it. But that issue need not be reached. The
initiation of a prosecution is a prosecutorial act for which Moody has immunity.
Even if the affidavit itself were considered a testimonial rather than
prosecutorial act, § 1983 does not provide a cause of action for false testimonial
statements. Witnesses in judicial proceedings enjoy common law immunities that
were not abrogated by § 1983. Even a state actor’s testimony is covered.
“Subjecting government officials, such as police officers, to damages liability
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under § 1983 for their testimony might undermine not only their contribution to the
judicial process but also the effective performance of their other public duties.”
Briscoe, at 343. “Nothing in the language of [§ 1983] suggests that such a
[governmental] witness belongs in a narrow, special category lacking protection
against damages suits.” Id., at 335–36.
Moody is absolutely immune from Flesch’s claims regarding his
prosecution, and thus, Flesch’s Complaint fails to state a claim that entitles him to
relief. The Complaint must be dismissed.
2. Malicious Prosecution
In addition, Flesch’s Complaint claim of malicious prosecution must be left
for the state courts. “In general, a claim of malicious prosecution is not cognizable
under § 1983 if process is available within the state judicial systems to provide a
remedy, although we have also held that an exception exists ... when a malicious
prosecution is conducted with the intent to ... subject a person to a denial of
constitutional rights.” Lacey v. Maricopa Cnty., 693 F.3d 896, 919 (9th Cir. 2012)
(internal citations and quotations omitted).
Montana law recognizes the common law tort of malicious prosecution.
Reece v. Pierce Flooring, 194 Mont. 91, 100, 634 P.2d 640, 645-46 (1981). Flesch
could file a state court action. Flesch is also pursuing a direct appeal of his state
convictions in the Montana Supreme Court. State v. Flesch¸ DA 24-0608 (filed
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Nov. 26, 2024.) He has not yet filed his opening brief in that appeal. Because
Flesch has available state remedies, his federal prosecutorial misconduct claim
necessarily fails. Because Flesch has not stated a claim against a viable defendant
and does not otherwise state a federal claim, the Court declines to exercise its
supplemental jurisdiction and leaves Flesch’s malicious prosecution claim to the
Montana courts.
III. CONCLUSION
The Court has screened Flesch’s Complaint and determined that it fails to
state a claim. 28 U.S.C. § 1915A requires a court to dismiss a complaint that fails
to state a claim upon which relief may be granted, but does not deprive the district
court of its discretion to grant or deny leave to amend. Lopez v. Smith, 203 F.3d
1122, 1127 (9th Cir. 2000). The Court can decline to grant leave to amend if “it
determines that the pleading could not possibly be cured by the allegation of other
facts.” Lopez, 203 F.3d. at 1127 (quoting Doe v. United States, 58 F.3d 494, 497
(9th Cir. 1995)). Here, amendment is not feasible.
Accordingly, it is HEREBY ORDERED:
1. This matter is DISMISSED. The Clerk of Court is directed to close this
matter and enter judgment pursuant to Rule 58 of the Federal Rules of Civil
Procedure.
2. The Clerk of Court is directed to have the docket reflect, pursuant to Rule
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24(a)(3)(A) of the Federal Rules of Appellate Procedure, the Court certifies that
any appeal of this decision would not be taken in good faith.
3. The Clerk of Court is directed to have the docket reflect that, pursuant to
28 U.S.C. § 1915(g), this dismissal counts as a strike because the Complaint fails
to state a federal claim upon which relief may be granted.
DATED this 10th day of March, 2025.

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