Sullivan v. Ortley et al

Filing 4

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Billy Budd Sullivan, FINDINGS AND RECOMMENDATIONS re 2 Complaint IFP/Prisoner filed by Billy Budd Sullivan. ( Objections to F&R due by 10/31/2011) Signed by Jeremiah C. Lynch on 10/13/2011. (TCL, ) Modified on 10/13/2011 to reflect copy mailed to Sullivan (APP, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
BILLY BUDD SULLIVAN,

CV 11-131-M-DWM-JCL

Plaintiff,
vs.

FINDINGS AND
RECOMMENDATION

DAVID ORTLEY, Justice of the Peace;
TED LYMPUS, District Court Judge;
SUPREME COURT JUDGE;
FLATHEAD JUSTICE & DISTRICT COURTS;
SUPREME COURT OF MONTANA; and
STATE OF MONTANA,
Defendants.
_____________________________________________
I.

INTRODUCTION
Plaintiff Billy Sullivan, proceeding pro se, has filed a Motion to Proceed In

Forma Pauperis. Sullivan submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). Because it appears he lacks sufficient funds to prosecute
this action IT IS HEREBY ORDERED that Sullivan’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 Sullivan’s lodged
Complaint as of the filing date of his request to proceed in forma pauperis.

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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
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 Sullivan’s pleading 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).

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II.

PLAINTIFF’S ALLEGATIONS
Plaintiff Billy Sullivan commenced this action to address what he perceives

as injustices that occurred during the course of unspecified legal proceedings in
the courts of the State of Montana. Sullivan alleges the state courts and judges
have displayed favoritism towards Kate List — an apparent opposing litigant —
and her attorney. Specifically, Sullivan alleges the judges or courts ignored
evidence he presented, disregarded the fact that Ms. List committed perjury,
engaged in “stonewalling” and delays, and mocked him as a pro se litigant. He
believes the state court system is plagued with dishonesty and corruption. He
alleges his right to have a different judge preside over his case was violated, and
that he cannot obtain a fair and honest trial in an impartial court. Finally, Sullivan
alleges the Montana Supreme Court issued a decision without considering the
evidence in the case. Sullivan does not, however, provide any details of the
referenced legal proceedings, and he does not present any factual allegations to
substantiate his conclusory assertions.
Sullivan requests monetary compensation for damages he allegedly suffered
as a result of the referenced state-court proceedings. He seeks compensation for
his time, and reimbursement for his expenses or damages. He also asserts “all the
people involved” should apologize to him, and they should be prosecuted.
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III.

DISCUSSION
Because Sullivan is proceeding pro se the Court must construe his 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)).
A. Judicial Immunity
Sullivan names District Court Judge Ted Lympus, Justice of the Peace
David Ortley, and an unidentified “Supreme Court Judge” as Defendants in this
action. These individuals are all Judges in the state courts of Montana. Sullivan
advances conclusory allegations against these Defendants asserting they have
improperly weighed evidence, issued adverse decisions, displayed favoritism,
delayed his court proceedings, and have deprived Sullivan of his ability to obtain
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impartial justice. Sullivan does not, however, present any factual allegations
describing the specific conduct he believes constitutes favoritism, stonewalling, or
partiality. For the reasons discussed below, and under the circumstances of
Sullivan’s allegations, the individual Defendants are immune from liability.
Liberally read, Sullivan’s allegations can be construed as being advanced
under 42 U.S.C. § 1983. Section 1983 is the vehicle through which a plaintiff can
present federal legal claims against a state official or employee if the plaintiff can
establish that “(1) that the conduct complained of was committed by a person
acting under color of state law; and (2) that the conduct deprived the plaintiff of a
constitutional right.” Harry A. v. Duncan, 351 F. Supp. 2d 1060, 1072 (D. Mont.
2005) (quoting Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.
1988)).
Although the Judges Sullivan identifies as Defendants are state actors for
purposes of liability under 42 U.S.C. § 1983, a plaintiff cannot pursue a claim
against a judicial officer under section 1983 “because [a] judge is absolutely
immune for judicial acts.” Simmons v. Sacramento County Superior Court, 318
F.3d 1156, 1161 (9th Cir. 2003). See also Mireles v. Waco, 502 U.S. 9, 11-12
(1991). Sullivan’s allegations indicate he is dissatisfied with the course his
unspecified judicial proceedings took, and the ultimate results of those
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proceedings. Thus, Sullivan’s allegations, on their face, merely describe judicial
rulings and actions that qualify as “judicial acts” committed by a judge in his or
her judicial capacity. See Simmons, 318 F.3d at 1161. A judge’s role in presiding
over judicial proceedings pending before the judge requires the judge to engage in
conduct “normally performed by a judge” with respect to parties who have “dealt
with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362
(1978). Sullivan’s allegations merely implicate conduct in which the Judges
engaged in presiding over judicial proceedings. Therefore, the individual Judges
Sullivan names as Defendants in this action are entitled to judicial immunity from
suit.
Additionally, section 1983 protects judicial officers against injunctive relief
requested by a plaintiff. The statute precludes injunctive relief as follows:
any action brought against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983. See Wolfe v. Strankman, 392 F.3d 358, 366 (9th Cir. 2004).
Thus, injunctive relief is not available to Sullivan to the extent his claims are
advanced under section 1983.
To the extent Sullivan’s allegations may be predicated upon provisions of
federal law other than 42 U.S.C. § 1983, the Court recognizes judicial immunity
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does not always extend to claims for injunctive or declaratory relief. “[J]udicial
immunity is not a bar to prospective injunctive relief against a judicial officer
acting in her judicial capacity.” Pulliam v. Allen, 466 U.S. 522, 541-42 (1984).
Therefore, the Court will consider whether Sullivan may otherwise be entitled to
declaratory or injunctive relief.
Sullivan does not, however, request any viable claim for injunctive relief,
and he does not expressly request any specific injunction be imposed directly
against Judge Lympus, Judge Ortley, or the unidentified Supreme Court Judge.
Sullivan’s request for an apology and that individuals be prosecuted are not forms
of relief this Court has authority to grant. The Court has no authority to direct any
prosecuting official to prosecute any claim or charge against any individual.
Sullivan also does not allege that any of the individual Judges continue to engage
in any ongoing conduct for which equitable relief could be obtained.
Based on the foregoing, Sullivan’s claims against the Judges named as
Defendants in this action should be dismissed.
B. Eleventh Amendment Immunity
Sullivan cannot maintain his legal claims advanced against Defendants
Flathead Justice & District Courts, the Supreme Court of Montana, and the

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State of Montana. Those entities are immune from suit in federal court under the
Eleventh Amendment to the United States Constitution.
“The Eleventh Amendment has been authoritatively construed to deprive
federal courts of jurisdiction over suits by private parties against unconsenting
States.” Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 952 (9th Cir. 2008)
(citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996)). Although
the amendment does not expressly prohibit suits brought against a state by its own
citizens, the Supreme Court has “consistently held that an unconsenting State is
immune from suits brought in federal courts by her own citizens as well as by
citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63 (1974).
Consequently, absent waiver of this Eleventh Amendment immunity, neither a
state, nor governmental entities which are considered “arms of the state,” may be
subject to suit in federal court. Will v. Michigan Department of State Police, 491
U.S. 58, 70 (1989). State courts are “arms of the state” for purposes of the
Eleventh Amendment. Simmons, 318 F.3d at 1161 (citing Greater Los Angeles
Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (1987)).
“In deciding whether a State has waived its constitutional protection under
the Eleventh Amendment, [a federal court] will find waiver only where stated ‘by
the most express language or by such overwhelming implications from the text as
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(will) leave no room for any other reasonable construction.’” Edelman, 415 U.S.
at 673 (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)).
Here, no express waiver of the State of Montana’s Eleventh Amendment
immunity exists in the law of Montana. Montana’s limited waiver of immunity for
tort actions in its own courts, as set forth in Article II, Section 18 of Montana’s
Constitution and Mont. Code Ann. §§ 2-9-101 et seq., does not constitute a waiver
of the State’s Eleventh Amendment Immunity. State of Montana v. Peretti, 661
F.2d 756, 758 (9th Cir. 1981) and Ward v. Montana State Prison, 2008 WL
564692, *3 (D. Mont. 2008).
In accordance with the foregoing legal authority, the Montana Supreme
Court, and the Flathead Justice & District Courts are “arms of the state.”
Therefore, the immunity established by the Eleventh Amendment bars Sullivan’s
claims against those entities, and also his claims against the State of Montana.
IV.

CONCLUSION
Based on the conclusions stated above, IT IS HEREBY

RECOMMENDED that Sullivan’s Complaint be DISMISSED.
DATED this 13th day of October, 2011.

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