City of Helena et al v. Brazington

Filing 5

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Deborah Brazington, FINDINGS AND RECOMMENDATIONS re 2 Notice of Removal filed by Deborah Brazington, re 3 MOTION filed by Deborah Brazington. ( Objections to F&R due by 6/13/2011), Order Setting: ( Objections to F&R due by 6/13/2011, Amended Pleadings due by 6/24/2011.) Signed by Jeremiah C. Lynch on 5/27/2011. (TCL, ) Modified on 5/27/2011 to reflect copy of order mailed to D. Brazington this date (APP, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
CITY OF HELENA,
STATE OF MONTANA,

CV 11-78-M-DWM-JCL
ORDER, and
FINDINGS AND
RECOMMENDATIONS

Plaintiff,
vs.
DEBORAH BRAZINGTON,

Defendant.
_____________________________________________
I. INTRODUCTION AND IN FORMA PAUPERIS APPLICATION
Defendant Deborah Brazington, proceeding pro se, has filed a Motion to
Proceed In Forma Pauperis. Brazington 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 Brazington’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
Brazington’s Notice of Removal and her Emergency Motion for Estoppel 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 Brazington’s pleadings to consider whether this
action can survive dismissal under 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. BRAZINGTON’S ALLEGATIONS
Brazington has submitted two documents for filing which are titled as
follows: (1) Notice of Removal, and (2) Emergency Motion for Estoppel. Review
of those documents reflects that the subject of this action stems from criminal
proceedings currently pending against Brazington in the Municipal Court of the
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City of Helena, Montana. Brazington explains that in October, 2009, she was
fined $280 for the offense of driving a motor vehicle when her driver’s license was
suspended. Brazington asserts she has been financially unable to pay the fine and,
consequently, in March, 2011, she was arrested for contempt of court apparently
for not paying the $280 fine. Brazington’s documents indicate she was later
released from that custody. A hearing in her case was scheduled for May 11,
2011. Brazington states that on the day of the scheduled hearing “a warrant of
some type” was issued for her.
In this action, Brazington asserts her Constitutional rights are being violated
in the criminal proceedings pending in Municipal Court in Helena. Specifically,
she claims she is being deprived of the rights secured her by the Fourth, Fifth,
Sixth, Seventh, Eighth, Ninth, Thirteenth and Fourteenth Amendments to the
United States Constitution. Brazington seeks to remove the Municipal Court
criminal proceedings to this Court. Further, for her relief — as stated in her
emergency motion — Brazington requests an order barring the Municipal Court
“from scheduling appearances, hearings, enforcing any wants [sic] or warrants,
and from issuing or attempting to enforce any new order, judgment, writ, or
warrant, and [...barring the court from] facilitat[ing] or initiat[ing] any document
or action of any type against, or regarding this defendant, civil or criminal.”

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III. DISCUSSION
Because Brazington is proceeding pro se the Court must construe her
pleadings liberally, and the pleadings, “however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). 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)).
Because Brazington’s claims, as framed, “aris[e] under the Constitution”,
the Court has subject matter jurisdiction under 28 U.S.C. § 1331. Despite
possessing federal question jurisdiction, the nature of Brazington’s claims are such
that the Court must abstain from exercising that jurisdiction.1
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Because Brazington commenced this action by filing a “Notice of Removal”,
the Court deems it appropriate to consider whether this matter falls within the
scope of the removal provisions set forth in 28 U.S.C. § 1443. Section 1443
provides, inter alia, for the removal of certain criminal prosecutions in state courts
where a petitioner is being deprived of “a right under any law providing for the
equal civil rights of citizens of the United States[.]” That removal procedure,
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There is a strong policy against federal intervention in pending state judicial
processes in the absence of extraordinary circumstances. Younger v. Harris, 401
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). Younger directs federal courts to
abstain from granting injunctive or declaratory relief that would interfere with
pending state or local criminal proceedings. Gilbertson, at 381 F.3d at 968.2
The Ninth Circuit has concluded that the federal courts must abstain under
Younger if the following four requirements are met:

however, may only be invoked in limited circumstances where (1) the removal
petitioner’s criminal defense is premised upon “rights that are given to [the
petitioner] by explicit statutory enactment protecting equal racial civil rights[,]”
and (2) as a matter of law, the state court will not enforce or protect the referenced
federal rights. State of California v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1971)
(citing Georgia v. Rachel, 384 U.S. 780 (1966) and Greenwood v. Peacock, 384
U.S. 808 (1966)). Brazington’s allegations in her pleadings do not present any
facts that invoke the provisions of 28 U.S.C. § 1443 under the limited
circumstances described. Thus, the Court will construe Brazington’s pleadings as
a civil action commenced under authority of Fed. R. Civ. P. 3.
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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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(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
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 are established in this case. First,
Brazington’s allegations establish that ongoing criminal proceedings are pending
against her in Municipal Court in the City of Helena.
Second, the referenced criminal proceedings implicate important state
interests. The State of Montana, through its state and local prosecuting offices,
has a significant state interest in prosecuting conduct that constitutes a criminal
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offense under the laws of Montana. This Court may not interfere with those
interests when that prosecutorial process is ongoing as alleged by Brazington.
Third, with regard to Brazington’s opportunity to raise any issue, or to assert
any Constitutional right in the Municipal Court — matters that she is attempting to
present to this Court — she bears the burden to establish “that state procedural law
bar[s] presentation of [her] claims[]” in the Municipal Court proceedings.
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987) (quoting Moore v. Sims, 442
U.S. 415, 432 (1979)). Brazington has not set forth any allegation suggesting she
will be barred from presenting any issues to the Municipal Court. And ultimately
prosecute an appeal with respect to any adverse judgment. Mont. Code Ann. §
110. To the contrary, she has opportunities under Montana law, and the laws and
rules of criminal procedure set forth in Title 46, Mont. Code Ann., to file motions,
or to request certain forms of relief from the Municipal Court to address the
alleged violations of her Constitutional rights as pled in this case. Mont. Code
Ann. §§ 46-1-103 and 46-17-401.
Fourth, Brazington seeks to have this Court enjoin the Municipal Court and
to bar it from taking any further action in the criminal matters currently pending
against her in that court. Thus, this federal court action would enjoin those

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proceedings, or have the practical effect of doing so, and would interfere with the
Municipal Court proceedings in a way that Younger disapproves.
Finally, Brazington has not identified any exceptional circumstances that
would render Younger abstention inapplicable. Therefore, IT IS HEREBY
RECOMMENDED that this action be DISMISSED without prejudice.
In view of her pro se status, however, the Court will afford Brazington an
opportunity to file an amended pleading that states claims for relief that may not
be barred under the doctrine of Younger abstention. Therefore, IT IS ORDERED
that Brazington may file an amended complaint setting forth short and plain
allegations against a specific defendant (or defendants), and she shall do so on or
before June 24, 2011. The Clerk of Court is directed to provide Brazington with a
form for filing her amended complaint.
At all times during the pendency of this action, Brazington SHALL
IMMEDIATELY ADVISE the Court of any change of address and its effective
date. Such notice shall be captioned “NOTICE OF CHANGE OF ADDRESS.”
Failure to file a NOTICE OF CHANGE OF ADDRESS may result in the dismissal
of this action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).
If Brazington fails to timely comply with the provisions of this Order the
Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963

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F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for
failure to comply with any order of the Court).
Also, if Brazington does not file an amended complaint as permitted above,
this action will be subject to dismissal under the doctrine of Younger abstention as
discussed above.
DATED this 27th day of May, 2011.

/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge

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