Glick v. Molloy et al

Filing 15

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 3 Order, Findings and Recommendations. IT IS FURTHER ORDERED that Glick's claims against Defendant Dave Edwards alleging violation of his rights under the First and Fourteenth Amendments to t he United States Constitution based on Edward's alleged retaliatory conduct and his alleged unlawful search and seizure of Glick's laptop computer will go forward. All of Glick's other claims, and all other Defendants named by Glick in this action are DISMISSED with prejudice. Signed by Judge Donald W. Molloy on 4/5/2012. (APP, ) Copy mailed to Glick this date.

FILED

APR 0:' 2012
IN THE UNITED STATES DISTRICT COURT

PATRICK E. DUFFY, CLERK
By=oe=PIJTY=C=lER""'K';-:.MI'"'SO;;:SO\.JlA:';-::-;:­

FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
RON GLICK,

Plaintiff,

vs.

)
)
)
)
)

CV 11-168-M-DWM-JCL

ORDER

)

)
DONALD MOLLOY, JEREMIAH )
LYNCH, KEITH STRONG,
)
UNITED STATES DISTRICT
)
COURT - MONTANA DISTRICT, )
ELEVENTH JUDICIAL DISTRICT )
COURT OF MONTANA, PEG
)
ALLISON, STUART STADLER,
)
KATHERINE CURTIS, TED
)
LYMPUS, MARA NEZA TSKI, aka )
Mara Pelton, TIM HARRIS, RAY
)
EVERT, SPECIAL FRIENDS
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ADVOCACY PROGRAM, GAY)
MODRELL, GREGORY PASKELL, )
MONTANA SUPREME COURT,
)
MONTANA OFFICE OF
)
DISCIPLINARY COUNSEL, DAVE )
EDWARDS, HEIDI ULBRICHT,
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and DOES ONE through FIFTY,
)
)
Defendants.
)

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Plaintiff Ron Glick, proceeding pro se, filed this action on December 15,
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2011. United States Magistrate Judge Jeremiah C. Lynch recommends dismissing
all of Glick's claims, except certain specified claims against Defendant Dave
Edwards. The Court agrees and adopts Judge Lynch's Findings and
Recommendations in full.
BACKGROUND

This matter was referred to Magistrate Judge Lynch under 28 U.S.C. §
636(b). Judge Lynch found that most of Glick's claims are subject to dismissal
because they either seek relief from certain Defendants who are immune from
liability, or fail to state a claim on which relief may be granted. 28 U.S.C. §
1915(e)(2)(B)(ii) & (iii). Judge Lynch did find, however, that two of Glick's
claims advanced against Defendant Dave Edwards required a response from
Edwards. Although Glick filed his objections past the 28 U.S.c. § 636(b)
deadline, the Court grants Glick's motion to extend his filing deadline (doc. 12).
Construing Glick's objections liberally, the Court finds that Glick objected
to all of Judge Lynch's findings and recommendations and is thus entitled to de
novo review of those findings and recommendations. 28 U.S.C. § 636(b)(1).

Because the parties are familiar with the facts of this case, they are restated here
only as necessary to explain the Court's decision.
Al'IALYSIS

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Glick raises eight claims in his 3D-page complaint. His first claim asserts
that the Defendants generally violated his rights under the First, Fourth, and
Fourteenth Amendments to the United States Constitution. His second through
sixth claims assert that the Defendants conspired to violate Glick's rights under
the First, Fourth, and Fourteenth Amendments either through a criminal
racketeering enterprise or under the color of state law. His seventh claim seeks an
injunction to prevent Defendants from tampering with witnesses in his legal
proceedings and an injunction to transfer all his pending and future legal
proceedings to this Court. Finally, in his eighth claim, Glick seeks to reserve his
right to add claims and parties as they come to light during the discovery process.

I.

Legal Standards
Because Glick is proceeding pro se, the Court construes his complaint

liberally, holding it "to less stringent standards than formal pleadings drafted by
lawyers[.]" Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the Court
must conduct a preliminary screening to ensure that Glick's complaint states a
claim upon which relief may be granted, does not seek monetary relief against a
defendant who is immune from such relief, and is not frivolous or malicious. 28
U.S.C. § 1915(e)(2)(B).
A complaint must comply with Rule 8(a)(2) of the Federal Rules of Civil
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Procedure-the requirement that a complaint contain a "short and plain statement
of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556
U.S. 662, 129 S. Ct. 1937, 1949 (2009). It must "contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face.'" Id.
(citation omitted). While the "plausibility standard" does not require "detailed
factual allegations" to state a claim, it does require more than a bare, "the­
defendant-unlawfully-harmed-me accusation" before "unlock[ing] the doors of
discovery" to the plaintiff. Id. at 1949-1950. The Court may not add factual
content that was not pled, and "[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice." Id. at 1949.

II.

Recusal of Judge Lynch and Judge Molloy
A judge "shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Typically, this
includes cases in which the judge is named as a defendant. 28 U.S.C. §
455(b)(5)(i). However, many courts have recognized practical exceptions to this
rule, including the Ninth Circuit. United States v. Studley, 783 F.2d 934,940 (9th
Cir. 1986) ("A judge is not disqualified by a litigant's suit or threatened suit
against him [in the context of scurrilous attacks.]"). The alleged bias must stem
from an "extrajudicial source" unless "opinions formed by the judge on the basis
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offacts introduced or events occurring in the course of the prior proceedings ...
display a deep-seated favoritism or antagonism that would make fair judgment
impossible." Liteky v. United States, 510 U.S. 540, 554-56 (1994).
The crux of Glick's complaint against us is that we ruled against him in his
prior lawsuits regarding the same subject matter that is presented in this case.
After this Court dismissed his last lawsuit, Glick moved to amend his complaint to
include Judge Lynch and the undersigned as Defendants. As Glick acknowledges,
it was our rulings that prompted him to add us as defendants (doc. 5 at 4).
However, as is evident in my previous orders, I have never demonstrated any
antagonism toward Glick or deep-seated favoritism to other parties. Accordingly,
the motion to disqualify me is denied.

III.

Judicial Immunity
Glick objects to Judge Lynch's finding that judicial immunity bars his

lawsuit against United States Magistrate Judge Strong, United States Magistrate
Judge Lynch, and the undersigned. Glick's complaint alleges that we have
engaged in a "racketeering enterprise" by dismissing the six lawsuits he has filed
since 2005, in defiance of well-established precedent.
Since 1872, federal law has recognized judges' absolute immunity for their
"judicial acts." Stump v. Sparkman, 435 U.S. 349, 355 (1978). This "well­
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established" principle reflects that it is ofthe "highest importance" that a judge
carry out his or her authority without apprehension of personal consequences. !d.;
see also Bradley v. Fisher, 80 U.S. 335, 347 (1872). The Supreme Court has
articulated two exceptions to this general rule of immunity: (I) where the judge is
not performing a "judicial act" (e.g., negligently causing a car accident) or (2)
where the judge has acted "in the complete absence of all jurisdiction." Mireles v.
Waco, 502 U.S. 9,11-12 (1991) (per curiam). A judge is liable only for actions
taken in the "clear absence of all jurisdiction over the subject matter," and is not
liable for actions taken only in "excess ofjurisdiction." Bradley, 80 U.S. at 351
(emphasis added). Here, our prior rulings are quintessential "judicial acts."
Therefore, in order to pierce judicial immunity, Glick must plead facts that, taken
as true, demonstrate that we acted in complete absence of subject-matter
jurisdiction.
Here, 28 U.S.c. § 1331 confers subject-matter jurisdiction to this Court
because RICO, the federal Constitution, and 42 U.S.C. § 1983 raise questions of
federal law. Glick alleges we defied well-established precedent in ruling against
him, but that does not establish lack of subject-matter jurisdiction, and those
alleged errors oflaw could be corrected on appeal. Pierson v. Ray, 386 U.S. 547,
554 (1967) (reasoning that under the principles ofjudicial immunity, the proper
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remedy for an unlawful ruling is an appeal).
Judge Lynch correctly found that injunctive and declaratory relief cannot be
granted against the federal judge Defendants because Glick does not seek
prospective relief. Though "judicial immunity is not a bar to prospective
injunctive relief against a judicial officer acting in her capacity," Pulliam v. Allen,
466 U.S. 522, 541-542 (1984), Glick is seeking retroactive relief-namely, to
"have the subject matter of the prior cases reviewed and overturned." (Doc. 5 at
4.) Prospective injunctive relief could not be granted with respect to those closed
cases.

II.

Defendants That Were Dismissed with Prejudice in Glick I
Glick is now suing many of the same Defendants he sued in Glick v.

Eleventh Judicial District Court, 2010 WL 4392549, at *3 (D. Mont. Mar. 26,
2010) (hereinafter Glick I). In that case, the claims against Stuart Stadler,
Katherine Curtis, Ted Lympus, Heidi Ulbricht, the Montana Supreme Court, the
Eleventh Judicial District of Montana, the Montana Office of Disciplinary
Counsel, and Peg Allison were dismissed with prejudice. Glick now objects to
Judge Lynch's finding that the doctrine of res judicata bars him from suing these
defendants in the above-captioned action.
The doctrine of res judicata "relieve[s] parties of the cost and vexation of
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multiple lawsuits," by preventing parties from relitigating issues that were raised
in a previous action where there had been a final judgement on the merits. Allen v.

McCurry, 449 U.S. 90, 94 (1980). Res judicata applies when there is "(1) an
identity of claims, (2) a final judgment on the merits, and (3) identity or privity
between parties." Stewart v. Us. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002).
The Court agrees with Judge Lynch that the claims here and in Glick I are
the same. See ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d 960 (9th
Cir. 1010)(describing four-factor test for finding an identity of claims). A review
of Glick's complaint and objections confirm that this case involves identical
subject matter, arising from the same nucleus of facts. The repose the Court
awarded to the Defendants through dismissal would be destroyed if these claims
were to proceed. Additionally, Glick is seeking to vindicate the same rights
involved in Glick 1.

Glick I was also a final judgment on the merits as to the claims against the
eight Defendants mentioned above. The Ninth Circuit therefore considers a
dismissal with prejudice a final judgment on the merits. Stewart, 297 F.3d at 956;

see also A. Wright et aI., Federal Practice and Procedure § 2372 (2011). Thus,
Glick I was a final judgment on the merits of the claims against the eight
Defendants identified above.
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In sum, Glick is making the same allegations he made in Glick I and is suing
the same parties. A final judgment was issued on the merits of these claims in
Glick I. Thus, the doctrine of res judicata bars Glick from raising them again here.

IV.

Glick's Claims Against Dave Edwards
Glick objects to Judge Lynch's finding that the claim against Defendant

Edwards, his probation officer, for imposing unlawful conditions on his probation
is barred by Hudson v. Palmer, 468 U.S. 517 (1984). The Court agrees with Judge
Lynch that Glick's claim implicates the Due Process Clause ofthe Fourteenth
Amendment. U.S. Const. Amend. XIV, § L However, an unauthorized
deprivation of property or liberty "by a state employee does not constitute a
violation of the procedural requirements of the Due Process Clause if a meaningful
postdeprivation remedy for the loss is available." Hudson, 468 U.S. at 533;
Zinermon v. Burch, 494 U.S. 113, 132 (1990).
Glick's complaint is barred because Montana law provides Glick adequate
postdeprivation remedies. See e.g. The Montana Tort Claims Act.] Glick asserts
that Hudson is inapposite because there the plaintiff was seeking reimbursement
for lost property whereas he is seeking reimbursement for the violation of his
constitutional rights. (Doc. 5 at 8.) Glick misreads Hudwn. Like Glick, the

[ Mont. Code Ann. §§2-9-301 to 318 (2011).
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plaintiff in Hudson was seeking reimbursement for a violation of his constitutional
rights. 468 U.S. at 520 (plaintiff suing under 42 U.S.C. § 1983). Therefore,

Hudson, as extended by Zinermon, bars Glick's claim.
Glick objects to Judge Lynch's findings on his First Amendment retaliation
claim and his Fourth Amendment claim because Judge Lynch is a Defendant in
this action and, therefore, lacks "jurisdiction" to analyze his complaint. (Doc. 5 at
13.) As discussed above, Judge Lynch properly refused to recuse himself.
Therefore, the Court need not address this objection.
V.

Private Party Defendants
Glick objects to Judge Lynch's finding that his complaint fails to state a

claim for 42 U.S.C. § 1983 and RICO violations as to Mara Nezatski, Tim Harris,
Ray Evert, Special Friends Advocacy Program, Gay Modrell, and Gregory Paskell
(collectively "Private Party Defendants") because the Private Party Defendants are
not state actors.2 The thrust of Glick's claim is that the private defendants
collectively conspired to deprive Glick of his personal property.
In order for a private individual to be liable under § 1983, that individual's
actions must be "fairly attributed to the State[.]" Rendell-Baker v. Kohn, 457 U.S.

2 All of these individuals are private individuals or entities that have allegedly prevented
Glick from recovering his personal property.

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830,838 (1982). While a private individual's action can rarely be attributed to the
state, Caviness v. Horizon Comm. Learning Ctr., 590 F.3d 806,812 (9th Cir.
2010), the Ninth Circuit has recognized four instances when private action
qualifies as state action: where there is a "(1) public function; (2) joint action; (3)
governmental compulsion or coercion; or (4) governmental nexus." Kirtley v.
Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (quotation marks omitted). Glick

bears the burden of establishing that a particular defendant was a state actor.
Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011).

I agree with Judge Lynch that Glick fails to make a sufficient showing
under any ofthe four tests that would nudge his "claim across the line from
conceivable to plausible ...." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). Glick makes conclusory statements, unsupported by sufficient factual
allegations, that the Private Party Defendants conspired with state officials to
deprive him of his constitutional rights. But the allged breadth of the entwinement
between Private Party Defendants and state actors "simply exceeds the limits of
plausibility." Glick I, at *2. Glick's claims with regard to the Private Party
Defendants are dismissed.

VI.

RICO Claims
Glick contends that all Defendants are liable for violating the Racketeer
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Influenced and Corrupt Organizations Act (RICO).3 The Ninth Circuit has
clarified that "[t]o state a claim for a RICO violation ... a plaintiff must show '(1)
conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. ",
Rezner v. Bayerische Hypo-Und Vereinsbank AG, 630 F.3d 866,873 (9th Cir.
2010) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)). Because
Glick fails to plead factual allegations establishing that it is plausible that all the
defendants were engaged in an "enterprise," the Court need not analyze the other
RICO elements.
Title 18 U.S.C. § 1961(4) defines "enterprise" as any entity, legal or illegal,
that is "associated in fact." The Supreme Court has clarified that the "associated
in fact" language requires that the defendants were "associated together for a
common purpose of engaging in a course of conduct." United States v. Turkette,
452 U.S. 576, 583 (1981). To establish the existence of such an enterprise, a
plaintiff must provide 'evidence of an ongoing organization, formal or informal,'
and 'evidence that the various associates function as a continuing unit.'" Odom v.
Microsoft Corp., 486 F.3d 541 (9th Cir. 2007) (quoting Turkette, 452 U.S. at 583).
Put simply, a party alleging a RICO enterprise must plead facts that make it
plausible that the defendants were acting together towards a common goal.

318 U.S.C. §§ 1961-1968 (2006).
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Glick's complaint in this regard falls short of the plausibility standard set
forth in Iqbal and Bell Atlantic. First, as this Court previously noted: "Glick's
claim that multiple judges, governmental agencies, his probation officer, and the
clerk of court are involved in a massive conspiracy against him simply exceeds the
limits of plausibility." Glick J, 2010 WL 4392549, at *2. In his present complaint,
Glick has compounded that implausibility by adding three federal judges and the
United States District Court-Montana District to the list of conspirators.
Second, Glick pleads no facts establishing that Defendants were working as
a "continuing unit" or in conjunction with another. Instead, Glick simply makes
conclusory statements to the effect that Defendant's are involved in a coordinated
"crusade" against him. (See e.g. doc. 2 at 6.) The Court agrees with Judge Lynch
that Glick's complaint makes "conclusory and bare allegations" that assert conduct
that is merely consistent with a RICO enterprise, instead of pleading sufficient
facts that would show that a RICO enterprise indeed existed. The complaint's
deficiency makes it incompatible with the plausibility standard set forth in Iqbal
and Bell Atlantic. Thus, Glick's RICO claims are dismissed.

VII. Retroactive Injnnctive Relief
Glick seeks an injunction to prohibit the Defendants from controlling or
influencing any witnesses from his cases, and an injunction to remand all of his
[3

cases, active and future, to this Court. As to Glick's first request, Judge Lynch
correctly noted, witness tampering is a crime under Montana and federal law.
Mont. Code Ann. §§ 45-7-206 (2011) and 45-2-101 (2011); 18 U.S.C. § 1512
(2006). Injunctions that "broadly order the enjoined party simply to obey the law"
are generally impermissible. NL.R.B. v.

u.s. Postal Service, 486 F.3d 683,691

(10th Cir. 2007) (Tymkovich, J., concurring and collecting cases); see also Int'l

Rectifier Corp. v. IXYS Corp., 383 F.3d 1312, 1316 (Fed. Cir. 2004) (reasoning
that the "Supreme Court has denounced" such broad injunctions). Simply put, this
Court cannot grant an injunction of the type Glick seeks.
As to his second request, the Court agrees with Judge Lynch that the Court
lacks the equitable power to require all other courts to "remand" Glick's
proceedings to this Court. Because both of Glick's requests for injunctive relief
exceed the authority of this Court, they are denied.

VIII. Reservation to add additional claims in the future
Finally, Glick requests that he be allowed to reserve the right to add future
claims to this lawsuit. As Judge Lynch correctly noted, this request is
unnecessary. Rule 15(a) and (d) of the Federal Rules of Civil Procedure governs
amendments and permits a litigant to amend his complaint to include new claims
under certain circumstances. Glick points to no authority in his objection to Judge
14

Lynch's finding that would permit a litigant to plead around the rules of civil
procedure. To the extent that Glick is dissatisfied with the delays attendant with
the amendment process, he fails to state a claim for relief. Thus, the claim is
denied.
CONCLUSION

A de novo review of Glick's claims affirms Judge Lynch's
Recommendation. Consequently, all of Glick's claims, with the exception of his
First and Fourth Amendment claims against Defendant Edwards, are dismissed
without leave to amend. While the Court acknowledges that courts normally
should grant pro se litigants leeway to amend the complaint, Glick has failed to do
so numerous times in the past, and the Court is convinced that further amendments
cannot cure the identified defects.
ORDER

Accordingly, IT IS ORDERED that Judge Lynch's Findings and
Recommendations (doc. 3) are adopted in full;
IT IS FURTHER ORDERED that Glick's claims against Defendant Dave
Edwards alleging violation of his rights under the First and Fourteenth
Amendments to the United States Constitution based on Edward's alleged
retaliatory conduct and his alleged unlawful search and seizure of Glick's laptop
15

computer will go forward. All of Glick's other claims, and all other Defendants
//

named by Glick in this action are DISMISSED with prejudice.
Dated this ~ day of April 2012.

Hoy, District Judge
istrict Court

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