Lamoreaux v. Kalispell Police Department

Filing 5

ORDER re 4 Financial Affidavit filed by Aimee Catherine Lamoreaux, FINDINGS AND RECOMMENDATIONS re 1 Complaint IFP/Prisoner filed by Aimee Catherine Lamoreaux. () Signed by Magistrate Judge Jeremiah C. Lynch on 10/17/2016. (TCL, ) Modified on 10/17/2016 to reflect copy mailed to Lamoreaux (NOS, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
AIMEE CATHERINE LAMOREAUX,

CV 16-89-M-DLC-JCL

Plaintiff,
ORDER, and FINDINGS
AND RECOMMENDATION

vs.

KALISPELL POLICE DEPARTMENT,
Defendant.

I.

Introduction
Plaintiff Aimee Lamoreaux, appearing pro se, filed a motion requesting

leave to proceed in forma pauperis. She submitted a declaration that makes the
showing required by 28 U.S.C. § 1915(a). Because it appears she lacks sufficient
funds to prosecute this action IT IS HEREBY ORDERED that Lamoreaux’s
motion is GRANTED. This action may proceed without prepayment of the filing
fee, and the Clerk of Court is directed to file Lamoreaux’s lodged Complaint as of
the filing date of her request 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
screening of the allegations set forth in the litigant’s pleading. The applicable
1

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).
The Court will review Lamoreaux’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.

Background
On July 2, 2015, an unexplained “standoff” occurred at Lamoreaux’s home

in Kalispell, Montana. She complains that at the time of the standoff police
officers from the Kalispell Police Department seized a gun, ammunition,
magazines and other items from her home. Lamoreaux commenced this action
requesting the Court order the Kalispell Police Department to return the gun and
2

other personal property items to her.
After the standoff Lamoreaux was the subject of civil commitment
proceedings in the Montana Eleventh Judicial District Court, Flathead County,
under the caption In the Matter of the Mental Health of: Aimee Lamoreaux, Cause
No. DI-15-040(D). In her complaint Lamoreaux refers to pleadings filed in her
civil commitment case, and she attached those pleadings to her complaint. The
pleadings reflect that a deputy Flathead County Attorney filed a petition for
involuntary commitment against Lamoreaux on July 2, 2015, the same day as the
standoff. As a result, and based on Lamoreaux’s then-existing mental health
condition, the state court committed her to a community-based mental health
treatment program for 90 days. (Doc. 1-1 at 4 of 6.)1
Following Lamoreaux’s 90-day commitment, the issue of Lamoreaux’s
claim for the return of her gun and other seized property items arose in her civil
commitment proceedings. But by Supplemental Order entered June 14, 2016, the
state court, District Judge David M. Ortley presiding, concluded it could not

1

A court may properly consider documents attached to, and incorporated by
reference in, the complaint. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.
2003). And a court may take judicial notice of other state or federal court
proceedings. Duckett v. Godinez, 67 F.3d 734, 741 (9th Cir. 1995), and Emrich v.
Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988). See also BurbankGlendale-Pasadena Airport Authority v. City of Burbank, 136 F.3d 1360, 1364 (9th
Cir. 1998) (allowing judicial notice of pleadings in other cases).
3

resolve the issue of whether she is entitled to the return of her gun and the other
items within the context of Lamoreaux’s civil commitment proceedings. (Doc. 1-1
at 6 of 6.) Instead, Judge Ortley noted that Lamoreaux’s procedural remedy for
securing the return of evidence/personal property was available to her under
Montana law at Mont. Code Ann. § 46-5-312.
Apparently in response to Judge Ortley’s referenced June 14, 2016
Supplemental Order, on July 12, 2016, Lamoreaux commenced this action seeking
the return of her gun. As the apparent grounds for federal question jurisdiction,
Lamoreaux cites to, without supporting facts or argument, the Second Amendment
to the United States Constitution, the Gun Control Act of 1968, 18 U.S.C. § 921 et
seq., and the Brady Handgun Violence Prevention Act which amended the Gun
Control Act in 1993. See Printz v. United States, 521 U.S. 898, 902 (1997).
Lamoreaux notes the referenced federal law prohibits a person “who has been
adjudicated as a mental defective or who has been committed to a mental
institution” from possessing a firearm. 18 U.S.C. § 922(g)(4).
The balance of Lamoreaux’s allegations quote several passages of Judge
Ortley’s orders issued in her civil commitment case suggesting Lamoreaux
potentially could recover possession of her gun if she pursued other available
procedures. Lamoreaux complains that the Kalispell Police Department refuses to

4

return the gun to her despite Judge Ortley’s orders which she construes as
authorizing her to possess her gun. Specifically, she emphasizes that Judge Ortley
stated her “civil and legal rights under Montana law were automatically restored
upon termination of the 90 day commitment.” (Doc. 1-1 at 4 of 6.) Therefore, she
alleges the Kalispell Police Department is unlawfully retaining possession of her
gun, and she requests this Court order the Kalispell Police Department to return
her gun and other personal property items to her.
III.

DISCUSSION
Because Lamoreaux is proceeding pro se the Court must construe her

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
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)).
Liberally construed, Lamoreaux’s allegations assert the Kalispell Police
Department personnel have violated her right to the possession of her personal

5

property items as protected by either federal statutory law or the United States
Constitution as referenced in her pleading. Therefore, her claims are cognizable
under 42 U.S.C. § 1983. Section 1983 permits claims under federal law against a
local governmental entity, or a state official or employee, if the plaintiff can
establish that the defendant was (1) acting under color of state law, and (2)
deprived the plaintiff of a federal right secured by the Constitution or laws of the
United States. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003).
Although Lamoreaux references the Second Amendment in her complaint,
her allegations present no facts which assert that the circumstances of her situation
actually violate her rights under the Second Amendment. Instead, Lamoreaux’s
allegations, in substance, contend that due to a change in her circumstances she is
now eligible to regain possession of her gun.
Specifically, Lamoreaux recognizes that under federal law individuals with
mental defects or committed to a mental institution are prohibited from possessing
a firearm. See 18 U.S.C. § 922(g)(4). Her allegations and the court documents
attached to her complaint establish that in the course of her civil commitment
proceedings the state court found she had a “mental disorder,” and that she posed a
“threat to herself and others,” all of which led to her commitment for mental health
treatment for 90 days. (Doc. 1-1 at 4 of 6.) Lamoreaux’s allegations suggest that

6

her civil commitment circumstances, together with the provisions of section
922(g)(4), have previously precluded her from obtaining possession of her gun.
But Lamoreaux suggests the provisions of 18 U.S.C. § 922(g)(4) no longer
apply to her. She contends Judge Ortley’s order confirms her rights were restored
following her 90-day civil commitment and, therefore, she is entitled to the return
of her gun.
Properly construed, the Court finds Lamoreaux’s allegations do not assert
that section 922(g)(4) violates her Second Amendment rights. And she does not
allege that the Kalispell Police Department’s conduct violates her Second
Amendment rights. Therefore, the Court concludes Lamoreaux has not pled a
claim for a violation of her Second Amendment rights.
Instead, liberally construed, Lamoreaux’s allegations assert only that the
Kalispell Police Department is unlawfully refusing to return her items of personal
property to her, i.e. that it has unlawfully deprived her of her property in violation
of her due process rights protected under the Fourteenth Amendment to the United
States Constitution. But for the reasons discussed, the allegations do not state a
viable due process claim.
The Due Process Clause of the Fourteenth Amendment provides that a state
shall not “deprive any person of life, liberty, or property, without due process of

7

law[.]” U.S. Const. Amend. XIV, § 1. To succeed on a procedural due process
claim, “the plaintiff must establish the existence of ‘(1) a liberty or property
interest protected by the Constitution; (2) a deprivation of the interest by the
government; [and] (3) lack of process.’” Shanks v. Dressel, 540 F.3d 1082, 1090
(9th Cir. 2008) (quoting Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th
Cir. 1993)). Fundamentally, due process affords a person a right to notice and a
hearing before the State can deprive the person of life, liberty, or property.
Zinermon v. Burch, 494 U.S. 113, 127-28 (1990).
In a procedural due process claim, it is not the deprivation of life, liberty or
property itself that is unconstitutional. Zinermon, 494 U.S. at 125. Rather, the
unconstitutional conduct is the deprivation of those interests without due process
of law. Id. Therefore, the actionable unconstitutional conduct “is not complete
unless and until the State fails to provide due process.” Id. at 126. Thus, a court
must consider what process a State provided or must provide, and whether that
process was or is constitutionally adequate. Id.
Ordinarily, due process law requires that an opportunity for a hearing be
made available prior to the deprivation of a significant property interest. Memphis
Light, Gas and Water Division v. Craft, 436 U.S. 1, 19 (1978). But courts also
recognize there exist situations where a postdeprivation remedy is sufficient to

8

satisfy due process. Zinermon, 494 U.S. at 128. For example, the necessity of
quick action by the State in effecting a deprivation may mean that a
postdeprivation remedy is constitutionally adequate because it is the only remedy
the State can be expected to provide. Id. (quoting Logan v. Zimmerman Brush
Co., 455 U.S. 422, 436 (1982)).
[E]ither the necessity of quick action by the State or the impracticality of
providing any meaningful predeprivation process, when coupled with the
availability of some meaningful means by which to assess the propriety of
the State’s action at some time after the initial taking, can satisfy the
requirements of procedural due process.
Parratt v. Taylor, 451 U.S. 527, 539 (1981), overruled on other grounds in
Daniels v. Williams, 474 U.S. 327, 330-31 (1986).2
The necessity of quick action can arise where the government has an interest
in protecting public health and safety. The Supreme Court recognizes states have
“great leeway in adopting summary procedures to protect public health and
safety.” Mackey v. Montrym, 443 U.S. 1, 17 (1979).
In Mackey, the Court addressed a Massachusetts law which permitted a law

2

Similarly, other examples include situations where a deprivation is effected
by a state employee’s random, intentional, and unauthorized conduct. In those
situations an adequate postdeprivation remedy may satisfy due process
requirements because a predeprivation process is not possible – the
postdeprivation process is all the process the State can be expected to provide, and
is constitutionally sufficient. See also Hudson v. Palmer, 468 U.S. 517, 533
(1984) and Zinermon v. Burch, 494 U.S. 113, 115 (1990).
9

enforcement officer to summarily suspend an individual’s driver’s license if the
individual is arrested for the criminal offense of driving under the influence of
alcohol and the individual refused to submit to a chemical test or an analysis of his
or her breath for blood alcohol content. The Court recognized the Massachusetts
law was enacted in aid of the State’s police function in protecting the safety of the
people of Massachusetts, and the summary sanction of a suspended driver’s
license promptly removes drunken drivers from the roads and contributes to the
safety of public highways. Id. 443 U.S. at 17-18. Under those circumstances
quick action is necessary, and a pre-suspension hearing would substantially
burden the necessary summary process and undermine the state’s interest in public
safety. Id. at 18.
Significantly, and relevant to Lamoreaux’s case, in Mackey a postsuspension hearing was available immediately after a driver’s license was
suspended. Mackey, 443 U.S. at 12. Thus, the procedure for the summary
suspension of a driver’s license did not violate due process, in part, because an
adequate post-deprivation remedy was available. Id. at 12, 19.

See also

Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1318 (9th Cir. 1989)
(recognizing the necessity for quick action to protect the public interest in the
enforcement of pollution laws justified an immediate seizure of property without a

10

prior hearing where a post-deprivation hearing is sufficient to afford due process).
Here, Lamoreaux’s allegations indicate the law enforcement officers were
present at her residence as a result of what she characterizes as a “standoff.”
Those allegations necessarily suggest that an issue of either criminal conduct or
public health, welfare, and safety occurred which gave rise to the standoff
involving law enforcement officers. Under the circumstances as characterized by
Lamoreaux’s allegations, it would be necessary for the officers to take quick
action to seize either weapons, evidence or personal property items related to the
standoff without conducting a hearing prior to the seizure and deprivation of the
items. A pre-deprivation hearing would substantially burden the necessary
summary seizure processes officers would need to employ during a standoff and
would undermine the state’s interest in public safety.
Furthermore, Montana law makes a procedural remedy available to
Lamoreaux for her to request the return of her personal property items. Montana
law provides as follows:
(1) A person claiming the right to possession of property seized as evidence
may apply to the judge for its return. The judge shall give written notice as
the judge considers adequate to the prosecutor and all persons who have or
may have an interest in the property and shall hold a hearing to determine
the right to possession.
(2) If the right to possession is established, the judge shall order the
property, other than contraband, returned if:
11

(a) the property is not needed as evidence;
(b) the property is needed and satisfactory arrangements can be made
for its return for subsequent use as evidence; or
(c) all proceedings in which the property might be required have been
completed.
Mont. Code Ann. § 46-5-312.
Under the circumstances alleged by Lamoreaux, the Court finds the remedy
available to her under section 46-5-312 is constitutionally adequate to protect her
due process rights because it is the only remedy the State can be expected to
provide in the circumstances of a standoff involving law enforcement officers and
their need to take quick action. The actionable unconstitutional conduct that could
violate Lamoreaux’s due process rights “is not complete unless and until the State
fails to provide due process.” Zinermon v. Burch, 494 U.S. 113, 126 (1990).
Therefore, based on the availability of the procedure set forth in section 46-5-312,
the Court concludes Lamoreaux’s allegations fail to state a viable claim for the
violation of her due process rights.
IV.

Conclusion
Based on the foregoing, the Court finds Lamoreaux’s complaint fails to state

a claim on which relief could be granted. 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

12

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 alleged, and the
availability of a remedy to Lamoreaux under Mont. Code Ann. § 46-5-312, the
Court finds she could not cure the defects in her due process claim through
additional factual allegations. Therefore, the Court recommends Lamoreaux’s
complaint be DISMISSED.
DATED this 17th day of October, 2016.

Jeremiah C. Lynch
United States Magistrate Judge

13