Hartsoe v. Marshall et al
Filing
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ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by John Hartsoe, FINDINGS AND RECOMMENDATIONS re 2 Complaint IFP/Prisoner filed by John Hartsoe. (), Motions terminated: 1 MOTION for Leave to Proceed in forma pauperis filed by John Hartsoe. Signed by Magistrate Judge Jeremiah C. Lynch on 9/18/2014. (TCL, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
JOHN HARTSOE,
CV 14-225-M-DLC-JCL
Plaintiffs,
ORDER, and FINDINGS
AND RECOMMENDATION
vs.
SAM MARSHALL, and BARBARA
MARSHALL,
Defendants.
I.
INTRODUCTION
Plaintiff John Hartsoe, proceeding pro se, filed a Motion to Proceed In
Forma Pauperis. Hartsoe submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). Because it appears he lacks sufficient funds to prosecute
this action IT IS HEREBY ORDERED that his Motion to Proceed In Forma
Pauperis is GRANTED. This action may proceed without prepayment of the
filing fee, and the Clerk of Court is directed to file Hartsoe’s lodged complaint as
of the filing date of his motion 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
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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).
Thus, the Court will review Hartsoe’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).
II.
PLAINTIFF’S ALLEGATIONS
Hartsoe’s allegations stem from legal proceedings in an unidentified civil
action pending before the Montana Twentieth Judicial District Court, Lake
County, Montana to which Hartsoe is a party. He alleges that a summary
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judgment hearing occurred in the referenced civil case, and Defendant Barbara
Marshall was the court reporter for the hearing. Hartsoe alleges Marshall and her
husband, Sam Marshall, omitted from the official transcript of the hearing a
specific discussion Hartsoe’s sister allegedly had with the presiding judge.
Consequently, Hartsoe contends the Marshalls are each liable for their conduct in
omitting certain matters the transcript.
Invoking the federal subject matter jurisdiction of the Court under 28 U.S.C.
§ 1331, Hartsoe alleges the Marshalls are liable under the Freedom of Information
Act, and are liable for committing criminal offenses under 18 U.S.C. §§ 1001,
1017 & 1018. Additionally, he invokes the Court’s supplemental jurisdiction
under 28 U.S.C. § 1367 with respect to a common law claim of fraud under
Montana law, and a claim under the Montana Constitution.
III.
DISCUSSION
Because Hartsoe is proceeding pro se the Court must construe his pleading
liberally, and the pleading 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). Although the Court has
authority to dismiss a defective pleading pursuant to 28 U.S.C. § 1915(e)(2),
a district court should grant leave to amend even if no request to amend the
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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)).
The Freedom of Information Act (FOIA) permits a citizen to file an action
in federal court to obtain documents and information from an “agency”. 5 U.S.C.
§ 552(a)(4)(B). But the only agencies obligated to produce information and
documents in response to a citizen’s proper FOIA request are agencies of the
executive branch of the United States government. 5 U.S.C. § 551(1); Moore v.
United Kingdom, 384 F.3d 1079, 1089 (9th Cir. 2004). Therefore, in a case where
neither the United States, an agency of the United States, nor a United States
official is named as a defendant to the civil action, the pleading cannot state a
FOIA claim. Id.
Here, despite alleging a claim under FOIA, the only defendants that Hartsoe
has named in this action are Sam and Barbara Marshall who he identifies as court
reporters for the Montana Twentieth Judicial District Court, Lake County.
Because Hartsoe has not sued a United States agency or official, he cannot state a
claim under FOIA, and the claim is subject to dismissal.
Next, Hartsoe cites to the criminal offenses set forth in 18 U.S.C. §§ 1001,
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1017 and 1018 as grounds for his legal claims alleging the Marshalls falsified the
subject court transcript, or certified false information in the transcript. For the
reasons discussed, however, these statues do not create a private cause of action
for Hartsoe.
In determining whether a private cause of action arises from a federal
statute, the focal point of the Court’s analysis is Congress’s intent. Thompson v.
Thompson, 484 U.S. 174, 179 (1988). “[A] bare criminal statute, with absolutely
no indication that civil enforcement of any kind was available to anyone” cannot
serve to create a private cause of action or give rise to civil liability. Cort v. Ash,
422 U.S. 66, 80 (1975).
The criminal statutes on which Hartsoe relies are enforced only by the
United States, do not reflect any Congressional intent to provide a civil cause of
action, and do not serve to create a private cause of action for civil liability. AbouHussein v. Gates, 657 F. Supp. 2d 77, 81 (D.D.C. 2009) (addressing 18 U.S.C. §
1001). See also Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (addressing
other criminal offenses and concluding the criminal statutes do not form a basis
for civil liability). Hartsoe’s claims under sections 1001, 1017 and 1018 are,
therefore, subject to dismissal.
Based on the foregoing, all of Hartsoe’s claims advanced under federal law
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are subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a
claim upon which relief could be granted. Therefore, the Court must consider
whether it should exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367
over any other claims Hartsoe advances 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
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 Hartsoe’s federal claims, it
is further recommended that the District Court decline to exercise supplemental
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jurisdiction over Hartsoe’s state law claims pursuant to 28 U.S.C. § 1367(c)(3).
Any claims Hartsoe 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.
Although a district court should ordinarily grant a pro se plaintiff leave to
amend if the complaint can possibly be cured by additional factual allegations,
Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995), “[d]ismissal without leave to
amend is proper if it is clear that the complaint could not be saved by amendment,”
Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008).
Under the circumstances of Hartsoe’s allegations, and the background facts
alleged in support of his claims, the Court concludes the deficiencies in Hartsoe’s
pleading could not be cured if he were given an opportunity to amend his
pleading. Therefore, this matter should be dismissed.
IV.
CONCLUSION
Based on the forgoing, IT IS RECOMMENDED that Hartsoe’s complaint
be DISMISSED.
DATED this 18th day of September, 2014.
Jeremiah C. Lynch
United States Magistrate Judge
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