Talbot v. Cheevers et al

Filing 4

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Nancy Talbot, and FINDINGS AND RECOMMENDATIONS re 2 Complaint IFP/Prisoner filed by Nancy Talbot. ( Objections to F&R due by 6/8/2012) Signed by Jeremiah C. Lynch on 5/22/2012. (TCL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
NANCY TALBOT,

CV 12-48-M-DLC-JCL

Plaintiff,

ORDER, and
FINDINGS AND
RECOMMENDATIONS

vs.

JOE CHEEVERS; LINCOLN COUNTY
COMMISSIONERS; LINCOLN COUNTY
JUSTICE SYSTEM (JUSTICE AND
DISTRICT COURTS); LINCOLN COUNTY
SHERIFF’S DEPARTMENT; LINCOLN COUNTY
ATTORNEYS’ OFFICE; TOM HARMOND,
State Brand Inspector; STATE BRAND
INSPECTORS’ OFFICE; STORMY LANGSTON,
Justice Court Judge; TERRY UTTER,
former Justice Court Judge; JUDGE PREZEAU;
JUDGE WHEELIS; and MONTANA SUPREME COURT,
Defendants.
_____________________________________________
I. MOTION TO PROCEED IN FORMA PAUPERIS
Plaintiff Nancy Talbot, appearing pro se in this action, filed a Motion to
Proceed In Forma Pauperis. Talbot 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 Talbot’s Motion
to Proceed In Forma Pauperis is GRANTED. This action may proceed without
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prepayment of the filing fee, and the Clerk of Court is directed to file Talbot’s
lodged Complaint 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
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 Talbot’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. BACKGROUND
This 42 U.S.C. § 1983 action has its genesis in the purported 2003 theft and
abuse of Talbot’s horse by Defendant Joe Cheevers. Talbot also names as
defendants: the Lincoln County Commissioners, Courts, Sheriffs Department, and
County Attorneys Office, two Justices of the Peace, two Montana State District
Court Judges, the Montana Supreme Court, and last, but not least, the State Brand
Inspector’s Office. In short, Talbot charges the governmental defendants with
dereliction of their respective duties in failing to investigate and prosecute the
alleged horse thief Cheevers or to allow Talbot to obtain appropriate compensation
from Cheevers. The Court construes Talbot’s complaint as advancing claims
under both 42 U.S.C. § 1983 — for alleged violations of her civil rights — and
Montana substantive law.
For the reasons detailed below, Talbot’s complaint should be dismissed
under 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii).
III. APPLICABLE LAW
As stated, 28 U.S.C. § 1915(e)(2)(B)(ii) requires dismissal of an action that
“fails to state a claim” for relief. The statute employs the same standard that the
courts use in considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for

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failure to state a claim upon which relief can be granted. Andrews v. King, 398
F.3d 1113, 1121 (9th Cir. 2005).
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim upon which relief can be granted “tests the legal sufficiency of a claim.”
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal for failure to
state a claim under Rule 12(b)(6) is proper if there is a “lack of a cognizable legal
theory or the absence of sufficient facts alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). To
survive a motion to dismiss, a plaintiff’s complaint must have sufficient facts “to
state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless
Services, Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). The court accepts all factual
allegations in the complaint as true and construes the pleadings in the light most
favorable to Talbot. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).
IV. DISCUSSION
Because Talbot is proceeding pro se the Court must construe her pleading
liberally, and it is held "to less stringent standards than formal pleadings drafted
by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972). See also Neitzke v.
Williams, 490 U.S. 319, 330 n.9 (1989).

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Liberally construing Talbot’s allegations, the Court finds her claims
implicitly allege that Defendants violated her civil rights protected under the
United States Constitution. So construed, the claims could be cognizable, if at all,
under 42 U.S.C. § 1983 which permits a plaintiff to present claims against state
officials or employees acting under color of state law for allegedly depriving the
plaintiff of a federal right. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003).
For the reasons discussed, however, none of Talbot’s section 1983 claims are
viable.
A. Eleventh Amendment Immunity - State Courts
Talbot cannot maintain her legal claims advanced against Defendants
Montana Supreme Court and the “Lincoln County Justice System (Justice and
District Courts).” 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)). 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
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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).
Significantly, and as applied to Talbot’s claims, state courts are “arms of the state”
for purposes of the Eleventh Amendment. Simmons v. Sacramento County
Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (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
(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

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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, Defendants Montana
Supreme Court and the Lincoln County Justice System (Justice and District
Courts) are “arms of the state.” Therefore, the immunity established by the
Eleventh Amendment bars Talbot’s claims against those entities.
B. State Brand Inspectors’ Office
Talbot identifies the State Brand Inspectors’ Office in Helena, Montana, as
a Defendant in this lawsuit. But she does not advance any factual allegations
describing that entity’s role in the subject of this action. Nonetheless, Talbot
cannot sustain any claim for relief against the State Brand Inspectors’ Office in
this lawsuit.
As discussed, the Eleventh Amendment immunity doctrine bars suits in
federal court against governmental entities which are considered “arms of the
state.” Thus, Talbot’s suit against the State Brand Inspectors’ Office is barred.
Furthermore, section 1983 requires that the defendant must be a “person”
acting under color of state law. However, neither the State of Montana nor its
agencies are “persons” within the meaning of § 1983. Will v. Michigan
Department of State Police, 491 U.S. 58, 71 (1989). Consequently, Talbot’s
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claims advanced under § 1983 against the State Brand Inspectors’ Office fail to
state a claim on which relief may be granted.
C. Judicial Immunity
Talbot alleges that Judges Prezeau, Wheelis, Utter, and Langston refused to
recover her horse for her, and declined to grant her any judicial relief in the courts
in Libby, Lincoln County, Montana.1 These Judges, however, are immune from
liability on Talbot’s claims.
Judges are “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). The doctrine of judicial immunity provides an
immunity from suit, not just from an assessment of damages. Mireles, 502 U.S. at
11. Exceptions to judicial immunity exist only where the judge’s actions were not
taken in the judge’s judicial capacity (Mireles, 502 U.S. at 11), or where the judge
has acted “in the ‘clear absence of all jurisdiction[.]’ ” Sadoski v. Mosley, 435
F.3d 1076, 1079 (9th Cir. 2006) (quoting Stump v. Sparkman, 435 U.S. 349, 35657 (1978) and Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1871)).

1

Although Talbot identifies Judge Wheelis as a party to this lawsuit, she does
not advance any factual allegations identifying any conduct in which Judge
Wheelis engaged, or implicating any wrongdoing committed by him.
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Talbot’s allegations suggest only that she is dissatisfied with the results of
her efforts to obtain relief through judicial proceedings in the Justice and District
Courts in Libby. A judge’s role in presiding over judicial proceedings 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). Talbot’s allegations merely allude to
judicial rulings and actions that qualify as normal “judicial acts” committed by the
four Judges in their judicial capacities. Therefore, the individual Judges are
entitled to immunity from suit in this case.
The Court recognizes judicial immunity 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).
Here, Talbot requests equitable relief be imposed against all Defendants
generally, including the Judges. Talbot’s specific prayers for relief request that all
Defendants be removed from office, and be required to provide Talbot with a
written apology. She also requests that the circumstances of her situation be
published in newspapers.

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Even with liberal construction of Talbot’s claims for relief, there exists no
factual or legal basis for awarding her the relief she requests. Her allegations fail
to state a claim on which the requested prospective injunctive relief could be
granted.
Based on the foregoing, all of Talbot’s claims against Judges Prezeau,
Wheelis, Utter, and Langston should be dismissed.
D. Lincoln County Defendants and Tom Harmond
The remaining Defendants against whom Talbot’s claims under section
1983 could be advanced are the Lincoln County Commissioners, the Lincoln
County Sheriff’s Department, and the Lincoln County Attorneys’ Office
(collectively referred to as “Lincoln County Defendants”), and Tom Harmond, a
brand inspector. For the reasons discussed, however, Talbot’s allegations against
these Defendants fail to state any claim for relief under section 1983.
As with individual state officials like Defendant Tom Harmond, county or
local governmental entities, such as the Lincoln County Defendants, also qualify
as “persons” within the meaning of 42 U.S.C. § 1983, and can be sued for
damages under that statute. Monell v. Dept. of Social Services, 436 U.S. 658, 690
(1978). A plaintiff must demonstrate that the county entity itself acted deliberately
or culpably, and that there is a direct causal link between the county’s action and
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the deprivation of federal rights. Board of County Commissioners of Bryan
County v. Brown, 520 U.S. 397, 403-404 (1997); Monell, 436 U.S. at 694.
A local governmental entity can be subject to liability under Monell and §
1983 only if “a policy, practice, or custom of the entity can be shown to be a
moving force behind a violation of constitutional rights.” Dougherty v. City of
Covina, 654 F.3d 892, 900 (9th Cir. 2011). See also Monell, 436 U.S. at 693-94.
[I]t is when execution of a government's policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity
is responsible under § 1983.
Monell, 436 U.S. at 694. Finally, a local governmental entity may be liable if it
has a “policy of inaction and such inaction amounts to a failure to protect
constitutional rights.” Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir.
2001) (citations omitted).
The substance of Talbot’s allegations asserts that the Lincoln County
Defendants,2 and Harmond as an individual state actor, are liable for failing to
2

Solely for purposes of analyzing whether Talbot’s allegations against the
Lincoln County Defendants sufficiently state a claim for a violation of any of her
constitutional rights, the Court will deem the Lincoln County Commissioners, the
Lincoln County Sheriff’s Department, and the Lincoln County Attorneys’ Office
as officials and agents of Lincoln County whose edicts or acts may fairly be said to
represent official policy of Lincoln County. See Brewster v. Shasta County, 275
F.3d 803, 812 (9th Cir. 2001) (concluding that under California law the Shasta
County Sheriff’s Department acted on behalf of Shasta County); Esquibel v.
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investigate the theft of her horse, and failing to prosecute Defendant Cheevers for
that theft. As a matter of law, however, that alleged conduct does not constitute a
violation of any of Talbot’s rights protected under federal law or the United States
Constitution.
A private citizen has no constitutionally protected right to have state actors
and law enforcement officers conduct a criminal investigation on his or her behalf.
State actors have no affirmative constitutional “obligation to investigate a crime in
a particular way or to protect one citizen from another even when one citizen
deprives the other of liberty [or] property.” Gini v. Las Vegas Metropolitan Police
Dept., 40 F.3d 1041, 1045 (9th Cir. 1994) (citing DeShaney v. Winnebago County,
489 U.S. 189, 195-96 (1989)). The United States Constitution does not require
“the State to protect the life, liberty, and property of its citizens against invasion
by private actors.” DeShaney, 489 U.S. at 195. Thus, a claim asserting that state
actors conducted an inadequate criminal investigation is not, in and of itself,
sufficient to state a civil rights claim under section 1983. Gomez v. Whitney, 757
F.2d 1005, 1006 (9th Cir. 1985). See also Spreadbury v. Hoffman, 2010 WL
Idaho, 2012 WL 1410105, *9 (D. Idaho 2012) (treating the Ada County Sheriff’s
Department as a county entity for purposes of § 1983 liability); and Bodge v.
Trinity County Sheriff’s Department, 2010 WL 4483700, *3 (E.D. Cal. 2010)
(treating county attorney’s office as a local governmental unit against which a
section 1983 claim could be advanced).
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4607833, *11 (D. Mont. 2010), recommendations adopted by Spreadbury v.
Hoffman, 2010 WL 4607829 (D. Mont. 2010), affirmed 2012 WL 76900 (9th Cir.
2012).
Similarly, Talbot alleges that the Lincoln County Defendants and Harmond
failed to prosecute Cheevers do not rise to the level of a constitutional violation.
“[A] private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).
Based on the foregoing, Talbot’s allegations fail to sufficiently state any
viable claim asserting that the Lincoln County Defendants and Harmond violated
her constitutional rights. Absent factual allegations that constitute the
infringement of a protected constitutional right, a section 1983 claim against either
an individual defendant or a local governmental entity necessarily fails. Gomez v.
Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985); Johnson v. City of Seattle, 474 F.3d
634, 638-641 (9th Cir. 2007). Therefore, Talbot’s claims against the Lincoln
County Defendants and Harmond should be dismissed.
E. Joe Cheevers
Talbot identifies Defendant Joe Cheevers as a private citizen of Montana.
As a matter of law, however, Talbot cannot maintain a cause of action under 42
U.S.C. § 1983 against Cheevers.
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As noted above, section 1983 authorizes claims advanced under federal law,
but only against a state official or employee. Kirtley v. Rainey, 326 F.3d 1088,
1092 (9th Cir. 2003). Section 1983 does not generally apply to the conduct of
private parties. Kirtley, 326 F.3d at 1092. “The state-action element in § 1983
‘excludes from its reach merely private conduct, no matter how discriminatory or
wrongful.’” Caviness v. Horizon Community Learning Center, Inc., 590 F.3d 806,
812 (9th Cir. 2010) (quoting American Manufacturers Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 50 (1999)).
Here, Talbot’s allegations establish only that Cheevers is a private
individual, not a state actor. Therefore, to the extent Talbot’s allegations can be
construed as advancing a federal claim against Cheevers under section 1983, the
claim cannot be sustained and should be dismissed.
F. Supplemental Jurisdiction Over Talbot’s State Law Claims
Based on the foregoing, the Court concludes that all of Talbot’s federal
claims under 42 U.S.C. § 1983 should be dismissed. Therefore, the Court must
consider whether it should exercise supplemental jurisdiction pursuant to 28
U.S.C. § 1367 over any other claims Talbot may have under Montana law.
Section 1367 provides that where a district court has original jurisdiction in
a civil action it shall also have supplemental jurisdiction over other claims “that
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are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy[.]” 28 U.S.C. § 1367(a). However, the
district court may decline to exercise supplemental jurisdiction for various reasons
stated in the statute, including when “the district court has dismissed all claims
over which it has original jurisdiction[.]” 28 U.S.C. § 1367(c)(3). Supplemental
jurisdiction under 28 U.S.C. § 1367(a) is discretionary, and courts may decline to
exercise jurisdiction over supplemental state law claims “[d]epending on a host of
factors including the circumstances of the particular case, the nature of the state
law claims, the character of the governing state law, and the relationship between
the state and federal claims.” City of Chicago v. International College of
Surgeons, 522 U.S. 156, 173 (1997).
Because the Court recommends dismissing all of Talbot’s federal claims, it
is further recommended that the District Court decline to exercise supplemental
jurisdiction over Talbot’s state law claims pursuant to 28 U.S.C. § 1367(c)(3).
Any claims Talbot may have under Montana law are matters of state and local
concern, and are more properly addressed in the courts of the State of Montana.
V. CONCLUSION
Based on the foregoing, the Court finds that Talbot’s allegations fail to state
any plausible claim for relief under 42 U.S.C. § 1983 against any of the named
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Defendants. Several Defendants are immune from liability, and Talbot’s factual
allegations fail to implicate any protected constitutional right that Defendants
could have violated. Therefore, IT IS HEREBY RECOMMENDED that Talbot’s
complaint be DISMISSED under authority of 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii).
In considering dismissal under 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)).
Here, under the circumstances of the facts as alleged by Talbot, the Court
finds she could not cure the defects in her claims by pleading additional facts.
Therefore, the Court recommends dismissal of Talbot’s complaint without leave to
amend.
DATED this 22nd day of May, 2012.

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

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