Weik v. Goldberg et al
Filing
16
ORDER ADOPTING 13 FINDINGS AND RECOMMENDATIONS; granting 4 Motion to Dismiss for Lack of Jurisdiction. The action is DISMISSED with prejudice. Signed by Judge Dana L. Christensen on 10/9/2014. Mailed to Weik. (TAG, ) Modified on 10/10/2014 to correct filing date (TAG, ). Modified on 10/10/2014 (TAG, ).
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DAVID L. WEIK,
OCT 09 2014
Clerk, u.s. District Court
District Of Montana
Missoula
CV 14-182-M-DLC-JCL
Plaintiff,
vs.
ORDER
THRESA A. GOLDBERG, et aI.,
individually; FRANK BROAD, et aI.,
individually; SARA VILHUBER, et
aI., individually; DOES I-X; JANE
DOES I-X; CORPORATIONS I-X;
and XYZ PARTNERSHIPS I-X,
Defendants.
United States Magistrate Judge Jeremiah Lynch entered his order, findings,
and recommendation on September 12,2014, ultimately recommending that
Defendants' motion to dismiss, as applied to PlaintiffWeik's amended complaint,
be granted. Weik failed to timely object to the findings and recommendation, and
so waived the right to de novo review of the record. 28 U.S.C. § 636(b)(I). The
Court will therefore review the record for clear error. McDonnell Douglas Corp.
v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). The Court
adopts Judge Lynch's findings and recommendation in full.
Weik's amended complaint fails to state a colorable civil rights claim. His
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allegations pursuant to 42 U.S.C. § 1983 fail due to a lack of conduct on
Defendants' part that is "fairly attributable to the government": neither Goldberg's
use of the Montana state judicial system, the assistance she received from an
unidentified public advocate, nor Defendants alleged joint actions with each other
constitutes state action under the statute. Kirtley v. Rainey, 326 F.3d 1088, 1092
(9th Cir. 2003). Likewise, Weik's allegations under 42 U.S.C. § 1985 fail to state
a cognizable civil rights claim: Weik neither alleges he was the victim of
conspiratorial "class-based, invidiously discriminatory animus," RK Ventures, Inc.
v. City ofSeattle, 307 F.3d 1045, 1056 (9th Cir. 2002), nor that he suffered an
injury in connection with the "institutions and processes of the federal
government" subject to the portion of the statute upon which he relies. Kush v.
Rutledge, 460 U.S. 719, 726 (1983). Finally, Weik's invocation of 42 U.S.C. §
1988 is inapposite - in the absence of a claim under §§ 1983 or 1985, § 1988 does
not support or provide a cause of action. Moor v. County ofAlameda, 411 U.S.
693,703-704 (1973) (§ 1988 "instructs federal courts as to what law to apply in
causes of actions arising under federal civil rights acts," and "was [not] meant to
authorize the wholesale importation into federal law of state causes of action - not
even one purportedly designed for the protection of federal civil rights").
Weik's claims under 18 U.S.C. §§ 241 and 242 are inappropriately pled in
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his civil complaint - the provisions are federal criminal statutes and as such
provide no basis for civil liability. Allen v. Gold Country Casino, 464 F.3d 1044,
1048 (9th Cir. 2006) (citing AIdabe v. Aldabe, 616 F.2d 1089,1092 (9th
Cir.1980)).
Finally, Weik's amended complaint fails to adequately plead a cognizable
anti-trust cause of action under either the Sherman Act, 15 U.S.C. § 1, et seq., or
the Clayton Act, 15 U.S.C. § 15. Part and parcel of a claim under these statutes is
"an injury to competition beyond the impact on the plaintiffl]," meaning the
alleged anti-competitive conduct must have produced a market effect. Brantley v.
NBC Universal, Inc., 675 F.3d 1192, 1198-1200 (9th Cir. 2012) (citations
omitted). Judge Lynch found, and this Court agrees, that Weik's allegations
contour a personal business injury only, and therefore do not reach the threshold
requirements for a statutory anti-trust action.
In light of his recommendation that all ofWeik's federal law claims be
dismissed, Judge Lynch further recommended that this Court decline to exercise
supplemental jurisdiction over Weik's state law claims, pursuant to 28 U.S.C. §
1367(c)(3). This Court agrees with Judge Lynch's determination that the
remainder of Weik' s claims are better pursued in the courts of the State of
Montana.
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Accordingly, IT IS ORDERED that Judge Lynch's findings and
recommendation (Doc. 13) are ADOPTED IN FULL. Defendants' motion to
dismiss (Doc. 4) is GRANTED. This action is DISMISSED with prejudice. The
Clerk of Court shall enter judgment in favor Defendants and against Plaintiff.
This case is CLOSED.
DATED this
q~
IUlfI,--L. ~
Dana L. Christensen, Chief Judge
United States District Court
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