Gopher v. Cascade County et al
ORDER. Ms. Gopher's Motion to Proceed in Forma Pauperis 1 is granted. Her Request for an Emergency Injunction is DENIED and the Complaint is DISMISSED. Any appeal of this decision would not be taken in good faith. Signed by Judge Donald W. Molloy on 10/18/2013. Mailed to Gopher. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MELINDA GOPHER, President of
Ahontoays Band and Heir to Robert &
Dorothy Gopher's Estate,
OCT 18 2013
Clerk. u.s District Court
District Of Montana
CASCADE COUNTY, CAREY ANN
SHANNON, GERALD BOLAND,
MIKE GOPHER, PHYLLIS
PARKER, and MARCUS RED
THUNDER OF THE BEAR CLAW
Pending is Plaintiff Melinda Gopher's Motion to Proceed in Forma
Pauperis and Complaint and Petition for Emergency Injunction. (Docs. 1-2). Ms.
Gopher seeks to enjoin a November 2,2012 order issued in a state court probate
action. To the extent a final decision has been rendered in the state court action,
this matter is barred by res judicata and the Rooker-Feldman doctrine. To the
extent the state court probate action is ongoing, the Court must abstain pursuant to
the Younger doctrine. The motion to proceed in forma pauperis will be granted
but the emergency injunction will be denied and the complaint dismissed.
Motion to Proceed in Forma Pauperis
Ms. Gopher submitted a declaration sufficient to make the showing required
by 28 U.S.C. §1915(a). Accordingly, the request to proceed in forma pauperis
will be granted. 28 U.S.C. § 1915(a).
28 U.S.C. § 1915(e)(2) Review
Ms. Gopher is proceeding in forma pauperis so her Complaint is reviewed
under 28 U.S.C. § 1915. Section 1915(e)(2)(B) allows for the dismissal of a
complaint filed in forma pauperis before it is served upon the defendants if it is
frivolous, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief.
A complaint is frivolous if it "lacks an arguable basis either in law orin
fact." Neitzke v. Williams, 490 U.S. 319,325 (1989). A complaint fails to state a
claim upon which relief may be granted if a plaintiff fails to allege the "grounds"
of her "entitlement to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,555
(2007) (quotation omitted). Rule 8(a)(2) requires a complaint to "contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation
"A document filed pro se is 'to be liberally construed,' and 'apro se
complaint, 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); Cf Fed. R. Civ. P. 8(t) ("All pleadings shall be so construed as to do
Although the statute requires a dismissal for the reasons stated, it does not
deprive a district court of its discretion to grant or deny leave to amend. Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). A court can decline to grant leave to
amend if "it determines that the pleading could not possibly be cured by the
allegation of other facts." Lopez, 203 F.3d. at 1127 (quoting Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995)). Leave to amend is liberally granted to pro se
litigants unless it is "absolutely clear that the deficiencies of the complaint could
not be cured by amendment." Noll v. Carlson, 809 F .2d 1446, 1448 (9th Cir.
1987) (citing Broughton v. Cutter Labs., 622 F.2d 458,460 (9th Cir. 1980)).
Ms. Gopher seeks the return of a 13-star peace flag bundle and its contents.
She contends that Cascade County has exercised illegal control over the Gopher
family's artifacts. She seeks an immediate injunction barring the effect of a
November 12,2012 state court order, the return of her family's property which
was subject to a probate action which commenced in Cascade County on July 22,
2010, and a stay of all state court proceedings.
According to a December 18,2012 Order of the Montana Supreme Court,
this matter arises from an Eighth Judicial District Court probate action. Ms.
Gopher filed a petition for extraordinary writ and supervisory control in the
Montana Supreme Court seeking to challenge the Eighth Judicial District Court's
exercise of subject matter jurisdiction over the peace flag bundle. See generally In
re: Estate o/Gopher, Cause No. OP-12-0718 (Mont. Dec. 18,2012). Ms. Gopher
asked the Montana Supreme Court for relief similar to that sought here. In the
Montana Supreme Court, Ms. Gopher sought to void the November 2, 2012
Findings of Fact, Conclusions of Law issued by the Eighth Judicial District Court
and dismiss the case for lack of subject matter jurisdiction. She also sought a
temporary injunction for relinquishment of the flag bundle and its contents to the
Blackfeet Tribal Court. The Montana Supreme Court found that an appeal would
offer Ms. Gopher an adequate remedy and therefore she was not entitled to any
relief by way of supervisory control. Id.
This action has been and is being litigated in state court. To the extent there
is a final judgment on the merits regarding the probate action, this case is barred
by res judicata. Res judicata provides that a final judgment on the merits bars a
subsequent action between the same parties over the same cause of action. In re
Imperial Corp. ofAmerica, 92 F.3d 1503, 1506 (9th Cir. 1996). "[A] final
judgment on the merits of an action precludes the parties or the privies from
relitigating issues that were or could have been raised in that action." Allen v.
McCurry, 449 U.S. 90, 94 (1980). Resjudicata bars a later suit where the
previous suit (1) involved the same "claim" as the later suit, (2) reached a final
judgment on the merits, and (3) involved the same parties or their privies.
Nordhorn v. Ladish Co., Inc., 9 F.3d 1402, 1404 (9th Cir. 1993).
Ms. Gopher appears to be raising the same claims she brought in state court.
Even if Ms. Gopher is attempting to raise different claims regarding this same
issue, claim preclusion "bar(s) all grounds for recovery which could have been
asserted, whether they were or not, in a prior suit between the same parties ... on
the same cause of action." Ross v. IBEW, 634 F.2d 453, 457 (9th Cir. 1980); see
also San Remo Hotel, L.P. v. City and County ofSan Francisco, Cal., 545 U.S.
323,336 n. 16 (2005).
Furthermore, Ms. Gopher cannot appeal the decisions of the State District
Court or the Montana Supreme Court to this Court. The Rooker-Feldman doctrine
requires the dismissal of a complaint for lack of subject-matter jurisdiction if it is a
de facto appeal from a state court decision. Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923); Dist. ofColumbia Court ofAppeals v. Feldman, 460 U.S. 462 (1983).
"The basic premise of Rooker-Feldman is that 'a federal district court does not
have subject matter jurisdiction to hear a direct appeal from the final judgment of a
state court.'" Maldonado v. Harris, 370 F.3d 945,949 (9th Cir. 2004) (citing Noel
v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003)). This doctrine "recognizes the
implicit statutory structure established by Congress, which has determined that the
United States Supreme Court is the only federal court with jurisdiction to hear
appeals from state courts." Maldonado, 370 F.3d at 949. Ms. Gopher seeks an
order overturning a decision of a state district court. The Court does not have
subject matter jurisdiction to issue such an order.
To the extent the state court proceedings are ongoing, the Court must
abstain pursuant to Younger doctrine. Federal courts may raise the issue of
Younger abstention sua sponte. Bellotti v. Baird, 428 U.S. 132, 143-44 n.10
(1976) and The San Remo Hotel v. City and County o/San Francisco, 145 F.3d
1095, 1103 n.5 (9th Cir. 1998). 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 ofCommerce Political
Action Committee v. City ofSan Jose, 546 F.3d 1087, 1091 (9th Cir. 2008).
Specifically, 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. Younger abstention also applies to
federal civil actions under § 1983. Gilbertson v. Albright, 381 F.3d 965, 979 (9th
The Ninth Circuit has concluded that the federal courts must abstain under
Younger if the following four requirements are met:
(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 ofSan 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 ofSan 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
All of the elements of Younger abstention are established in this case. To
the extent there are ongoing state proceedings, they implicate important state
interests. The State of Montana has an interest in administering probate actions
filed in its state court.
Ms. Gopher will have an opportunity to raise any issue, or to assert any
constitutional right that she is attempting to present to this Court, in the state
court. Ms. Gopher bears the burden to establish "that state procedural law bar[s]
presentation of [her] claims" in the state court proceedings. Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 15 (1987) (quoting Moore v. Sims, 442 U.S. 415, 432
(1979)). There is no reason why Ms. Gopher will not be able to present any issues
to the state court or prosecute an appeal with respect to any adverse judgment. To
the contrary, she has opportunities under Montana law, and the laws and rules of
civil procedure to file motions, or to request certain forms of relief from the state
court to address any alleged violations of her federal rights relative to the probate
Lastly, Ms. Gopher seeks to have this Court enjoin the Montana Eighth
Judicial District Court from enforcing its November 12, 2012 Order. The relief
she seeks would have this federal court enjoin those proceedings, or have the
practical effect of doing so, and would thus interfere with the state court
proceedings in a way that Younger disapproves.
The Court must abstain from proceeding with consideration of Ms.
Gopher's claims. As Ms. Gopher is seeking only injunctive and declaratory relief,
dismissal is appropriate. Gilbertson, 381 F.3d at 981.
To the extent there has been a final judgment in the state court probate
action, Ms. Gopher's claims are barred by res judicata and the Rooker-Feldman
doctrine. Ifno final judgment has been entered, Ms. Gopher's claims are barred
by the Younger doctrine.
IT IS ORDERED that Ms. Gopher's Motion to Proceed in Forma Pauperis
(Doc. 1) is granted. The Clerk shall edit the text of the docket entry for the
Complaint (Doc. 2) to remove the word "LODGED" and the Complaint is deemed
filed on October 15,2013.
IT IS FURTHER ORDERED that Ms. Gopher's Request for an Emergency
Injunction is DENIED and the Complaint is DISMISSED.
IT IS FURTHER ORDERED that the docket shall reflect the Court's
certification pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A) that any
appeal of this decision would not be taken in good faith. No reasonable person
could suppose an appeal would have merit.
IT IS FURTHER ORDERED that the Clerk of Court shall close this case.
DATED this Ji~ay of October, 2013.
olloy, District Judge
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