Hartsoe v. Heisel et al

Filing 9

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 , 7 in full. Hartsoe's request for counsel is DENIED. This matter is DISMISSED for failure to state a claim. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g); the court certifies that any appeal of this decision would not be taken in good faith. Signed by Judge Donald W. Molloy on 5/23/2011. Mailed to Hartsoe. (TAG, )

FILED
MAY 2 3 2011
PATRICK E, DUFFY, CLERK

ByNoe;;;;;PU"'TY;V;;;;CL-;;;E~;;;;K'-, SOU"'""lA,­
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IN TIIE UNITED STATES DISTRICT COURT

FOR TIIE DISTRICT OF MONTANA

MISSOULA DIVISION

JOHNL. HARTSOE,

)
)
Plaintiff,
)
v,
)
)
DONNA HEISEL, MIKE GEHL, LUCKY )
LARSON, DEBRA CHRISTOPHER,
)
CHUCK WALL, MARK RUSSELL,
)
KENNETII MAUGHAN, OFFICER
)
TODD, DERRICK TIlRODEN, SANDY )
VAN SKYOCK, and JOHN DOES 1-3,
)
)
Defendants.
)

CV 11-17-M-DWM-JCL

ORDER

John L. Hartsoe, a state prison proceeding pro se, brought this action
alleging a wide assortment of claims under 42 U,S,C. § 1983. Pursuant to 28
U.S.C. § 636(b), the matter was referred to Magistrate Judge Lynch. Judge Lynch
issued an Order and Findings and Recommendation on March 3, 2011, finding the

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Complaint failed to state a claim. He recommended some ofthe claims be
dismissed outright because they could not be cured through amendment, and
simultaneously gave Hartsoe an opportunity to amend the others. On March 21,
2011, Hartsoe filed an Amended Complaint that included objections to the
recommendation that certain claims be dismissed outright.
On April 29, 2011, Judge Lynch issued a second Findings and
Recommendation. He found the Amended Complaint also failed to state a claim
upon which relief may be granted, and accordingly recommended the matter be
dismissed. Hartsoe timely filed objections to that recommendation on May 17,
2011.
Hartsoe is entitled to de novo review of the specified findings or
recommendations to which he objects. 28 U.S.C. § 636(b)(1). The portions ofthe
Findings and Recommendation not specifically objected to will be reviewed for
clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach .. Inc., 656 F.2d
1309, 1313 (9th Cir. 1981). Despite his objections, I agree with Judge Lynch's
analysis and conclusions. Because the parties are familiar with the factual and
procedural background, it will not be restated here.
Hartsoe first objects to Judge Lynch's finding that Judge Christopher and
Justice of the Peace Wall are immune from the claims alleged against them.
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Hartsoe insists they broke several laws as well as the Constitution during the
course of the criminal proceedings against him. The objection misses the mark.
Hartsoe's claims against Judge Christopher and Justice of the Peace Wall are
based on actions they took in their judicial capacity for which they had
jurisdiction. As such, they are immune from the claims. See Mireles v. Waco, 502
U.S. 9,11-12 (1991).
Judge Lynch also found County Attorney Russell to have prosecutorial
immunity for the claims alleged against him. Hartsoe "hopes" the Court sees
Russell's actions as falling outside of his functions associated with the judicial
phase of the criminal process. Hartsoe does not, however, identify how or why
Judge Lynch's finding was incorrect. Despite Hartsoe's hope to the contrary,
upon de novo review I agree with Judge Lynch that the allegations against Russell,
such as presenting photos during the arraignment, fall within the ambit of
prosecutorial immunity. See Imbler v. Pachtmill!, 424 U.S. 409, 430 (1976).
Hartsoe claims Defendants Maughan and Todd illegally arrested him. Judge
Lynch found the arrest not improper based on the fact that they arrested Hartsoe
pursuant to Judge Christopher's orders to do so for contempt of court. Hartsoe
objects that Judge Christopher sent him a written statement in which the Judge
admitted his arrest was the result of a misunderstanding. The objection is
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unavailing. Hartsoe's Complaint alleges Judge Christopher "had [him] arrested
for contempt of court." Compl.

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49 (dkt #2). There is no allegation that

Defendants' arrest of him was not in accordance with the Judge's instruction, or
that they did not release him once the Judge explained that he should not be
detained. I thus agree with Judge Lynch that there is no false arrest claim here
because Hartsoe was detained with legal process. See Wallace v. Kato, 549 U.S.
384, 389 (2007).
Hartsoe also claims Defendant Throden unconstitutionally put him in an
isolation cell and forced him to eat. Judge Lynch found one day of isolation and
requiring him to eat was neither punishment nor excessive. In objection, Hartsoe
insists to the contrary. I agree with Judge Lynch's conclusion that being placed in
isolation for one day in attempt to get a pretrial detainee to eat does not rise to the
level of a due process violation.
Hartsoe next objects to Judge Lynch's finding that the allegations that
Defendant Van Skyock, a probation officer, violated his right to counsel should be
dismissed. Hartsoe argues that she denied him legal counsel by giving him legal
advice. The argument fails. Even if Van Skyock gave Hartsoe legal advice, this
does not constitute a deprivation of any right to counsel. Hartsoe also objects that
he requested an application for a public defender in March 20 I 0, but the county
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jail refused to provide him one. Liberally construed, this could potentially state a
claim for denial of access to the courts. That, however, would require a showing
ofan "actual injury," see Sandsv. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989),
which Hartsoe cannot do. The Montana Supreme Court's docket shows that in
March 2010 Hartsoe requested and the next month he was appointed counseL
State v. Hartsoe, DA 10-0160. 1
Hartsoe also challenges Judge Lynch's fmding that he did not allege facts
supporting a claim of excessive force. Hartsoe insists that there was no
justification for force because his former wife was not present at the time ofhis
arrest and the police arrested him without speaking to her first. Even if true, these
facts do not negate a justification for the use of force or otherwise support a claim
for excessive force.
Finally, Hartsoe requests the Court appoint counsel to represent him in this
matter. There is no right to counsel in a § 1983 action. Rand v. Rowland, 113
F3d 1520, 1525 (9th Cir. 1997), withdrawn on other grounds, 154 F 3d 952, 962
(9th Cir. 1998). The Court may request counsel to represent an indigent litigant

but only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015,

IThe Court may take judicial notice ofrecords in other eourts. United States v. Wilson,
631 F.2d 118, 119 (9th Cir. 1980).
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10 17 (9th Cir. 1991). The existence of exceptional circumstances turns on "the
likelihood of success on the merits as well as the ability of the petitioner to
articulate his claims pro se in light of the complexity of the legal issues involved."
Palmer v. Valdez, 560 F.3d 965,970 (9th Cir. 2009) (quoting Weygandt v. Look,
718 F.2d 952, 954 (9th Cir. 1983)).
Hartsoe's pleadings fail to state a claim; thus there is no chance of success
on the merits. At the same time, through his multiple filings, Hartsoe has
demonstrated sufficient ability to plead his case. His case fails not due to his
inability to articulate it but rather because it fails as a matter of law. There are no
exceptional circumstances justifYing the appointment of counsel.
I find no clear error in Judge Lynch's remaining findings and
recommendations.
Accordingly, the Court issues the following:
ORDER

1. The Findings and Recommendations (dkt ## 4, 7) are adopted in full.
2. This matter is DISMISSED for failure to state a claim upon which relief
may be granted. The Clerk of Court shall close this case and enter judgment
pursuant to Rule 58 of the Federal Rules of Civil Procedure.
3. Hartsoe's request for counsel is DENIED.
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4. The docket shall reflect that this dismissal counts as a strike pursuant to
28 U.S.C. § 1915(g).
5. The docket shall reflect that the Court certifies pursuant to Fed.R.App.P.
24 (a)(3)(A) that any appeal of this decision would not be taken in good faith.

Dot'" th~ A -:(y of May, 2011.

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