Hartsoe v. McNeil et al

Filing 6

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. This action is DISMISSED with prejudice. Signed by Judge Dana L. Christensen on 9/22/2014. (APP, ) Copy mailed to Pltf

IN THE UNITED STATES DISTRlCT COURT

FOR THE DISTRlCT OF MONTANA

MISSOULA DIVISION

CV 14-210-M-DLC-JCL

JOHN HARTSOE,
Plaintiff,
vs.

ORDER

FILED

C.B. McNEIL, CLINTON FISCHER,
CASEY EMERSON,

SEP 22 2fM
Clerk, u.s DiItrlct Court
District Of Montana
Missoula

Defendants.

United States Magistrate Judge Jeremiah Lynch entered his Findings and
Recommendation on August 19,2014, granting Plaintiff Hartsoe's motion to
proceed in forma pauperis on the basis that he lacks sufficient funds to prosecute
this action, pursuant to 28 U.S.C. § 1915(a). However, pursuant to 28 U.S.C. §
1915(e)(2), Judge Lynch reviewed Hartsoe's pleadings to determine whether the
allegations contained therein were sufficient to survive dismissal. Judge Lynch
determined that: (1) Defendant McNeil is not subject to suit by virtue ofjudicial
immunity, and (2) Defendants Fischer and Emerson, having not acted under color
of state law while serving as counsel for Hartsoe's adversary in another matter, are
not subject to suit under 42 U.S.C. § 1983. Consequently, Judge Lynch

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recommended that Hartsoe's action be dismissed with prejudice against all
Defendants. Hartsoe 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)(1).
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.
Absent judicial "acts in the clear absence of all jurisdiction ... or
perform [ance of] an act that is not judicial in nature" - neither of which Hartsoe
alleges here - Defendant McNeil enjoys judicial immunity. Ashelman v. Pope,
793 F.2d 1072, 1075 (9th Cir. 1986) (citations and internal quotation marks
omitted). Further, because there was not "such a close nexus between the State
and the challenged action that seemingly private behavior may be fairly treated as
that of the State itself," Defendants Fischer and Emerson, as private attorneys,
cannot be sued under 42 U.S.C. § 1983. Single Moms, Inc. v. Montana Power Co.,
331 F.3d 743, 747 (9th Cir. 2003) (citations omitted). There is no clear error in
Judge Lynch's recommendation that Hartsoe's action against these defendants
should be dismissed with prejudice.
IT IS ORDERED that Judge Lynch's Findings and Recommendation
(Doc. 5) are ADOPTED IN FULL. This action is DISMISSED with prejudice.
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The Clerk of Court shall enter judgment in favor Defendants and against Plaintiff.
This case is CLOSED.

~day of Septemb

DATED this U.

Dana L. Christensen, Chief Judge
United States District Court

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