Sandvig v. Larson et al

Filing 5

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Anyappeal of this decision would not be taken in good faith. Signed by Judge Donald W. Molloy on 5/28/2013. Mailed to Sandvig. (TAG, )

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

ANDREW SANDVIG,

MAY 2 8 2013
Clerk. u.s District Court
District Of Montana
Missoula

CV 13-70-M-DWM

Plaintiff,
ORDER

vs.
JOHN LARSON, KAREN
TOWNSEND, ED McLEAN, SCOT
PIERSON, SHAWN THOMAS,
KATHLEEN BACCARI, and FRED
VANVALKENBURG ,
Defendants.

Before the Court are the Findings and Recommendations of United States
Magistrate Judge Jeremiah C. Lynch. No objection was timely filed to Judge
Lynch's recommendation that Plaintiff Sandvig's Complaint be dismissed for
failure to state a claim upon which relief can be granted.
The Court reviews the Findings and Recommendations of a United States
Magistrate Judge for clear error. McDonnell Douglas Corp. v. Commodore Bus.
Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error is present only ifthe
Court is left with a "definite and firm conviction that a mistake has been
committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
After a review of Judge Lynch's Findings and Recommendations, I find no

clear error. Plaintiff challenges his conviction with a civil action filed under 18
U.S.C. § 1983. Direct challenge to a criminal conviction is not cognizable under
§ 1983. Heckv. Humphrey, 512 U.S. 477, 487 (1994).
"[I]n order to recover damages for an allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C.
§ 2254."
Id. at 486-87. Plaintiff is still under supervision by Montana Probation and Parole.

His Complaint therefore fails to present a claim upon which relief might be
granted because his conviction has not been reversed, declared invalid, expunged
or called into question.
Furthermore, Defendants Larson, Townsend, McLean, Van Valkenburg, and
Thomas are entitled to immunity. State court judges are absolutely immune from
monetary damages for their official judicial acts, unless the judge acts outside their
judicial capacity or without jurisdiction. Mireles v. Waco, 502 U.S. 9, 11-12
(1991 ). A prosecutor is absolutely immune for acts in preparation "for the
initiation of judicial proceedings or for trial ... in the course of his role as an
advocate for the State[.]" Kalina v. Fletcher, 522 U.S. 118, 126 (1997).

IT IS ORDERED that Judge Lynch's findings and recommendations (doc.
4) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that the Clerk of Court shall close the case
and enter judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the Clerk of Court shall ensure the docket
reflects the Court's certification pursuant to Fed. R. App. P. 24(a)(3)(A) that any
appeal of this decision would not be taken in good faith.
~

DATED this

!}!(f

day of May, 2013.

~~

7

W. olloy, District Judge
111.c;u State District Court