Joshua : Man of God, Horowitz Family et al v. State of Montana (Principal) et al

Filing 18

ORDER modifying in part and rejecting in part 5 FINDINGS AND RECOMMENDATIONS re 1 Complaint, dismissing without prejudice 11 Amended Complaint. Plaintiffs are hereby given leave to file an amended pleading on or before August 9, 2017. Plaintiffs' 15 MOTION for Preliminary Injunction is denied. Signed by Judge Dana L. Christensen on 7/18/2017. (NOS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
JOSHUA: MAN OF GOD, HOROWITZ
FAMILY, and DAVID: MAN OF GOD,
HOROWITZ FAMILY
ORDER
Plaintiffs,
vs.
STATE OF MONTANA(PRINCIPAL), a
Public Corporation/Statutory Trust; and
STATE OF MONTANA (ALL AGENTS)
ALL PUBLIC TRUSTEES/SERVANTS
EMPLOYEES of above Corporation,
Defendants.
United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendations on May 31, 201 7, recommending dismissal of Plaintiffs'
Complaint, filed May 17, 2017 (Doc. 1), without leave to amend. Plaintiffs,
appearing pro se, timely filed an objection and are therefore entitled to de novo
review of those findings and recommendations to which they specifically objected.
28 U.S.C. § 636(b)(l)(C). This Court reviews for clear error those findings and
recommendations to which no party objects. See McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v.
Arn, 474 U.S. 140, 149 (1985). "Clear error exists ifthe Court is left with a
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definite and firm conviction that a mistake has been committed." United States v.

Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
Plaintiffs filed a two-page Complaint on May 17, 2017, asserting 18 causes
of action against Defendants, including "ACTING under 'Color of Law"' and
"Un-Law-Full Arrest/Kidnapping." (Doc. 1 at 1.) This Complaint failed to
provide any factual information supporting the action. Based upon this threadbare
pleading, Judge Lynch issued Findings and Recommendations recommending the
matter be dismissed. In particular, because the Complaint asserted that every
employee employed by the State of Montana committed each of the 18 offenses
against the Plaintiffs, a factual impossibility, Judge Lynch found that pleading was
frivolous and failed to invoke the Court's jurisdiction. Thus, the Findings and
Recommendations recommend dismissal of the matter without leave to amend.
Following the issuance of the Findings and Recommendations, Plaintiffs
filed an Amended Complaint (Doc. 7), a Second Amended Complaint (Doc. 11 ),
and an objection (Doc. 13). The filing of these documents, and in particular the 31
page Second Amended Complaint, arguably moot Judge Lynch's Findings and
Recommendations. The Second Amended Complaint lists close to 30 additional
"Public Servant" Defendants, some by name and some by title. (Doc. 11 at 3-5.)
This Complaint also provides some additional facts which may support a colorable
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cause of action in a properly pled complaint. Specifically, the Second Amended
Complaint refers to an event where Plaintiffs were allegedly falsely arrested by
officers with the Montana Highway Patrol and the Missoula County Sheriffs'
Department. Properly pled, this allegation could support a claim that the
Plaintiffs' constitutional rights were violated. However, at present, the allegations
in the Second Amended Complaint are vague and conclusory, and fail to allege a
viable a claim for relief. Litman v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014)
("Vague and conclusory allegations of. . . civil rights violations" are insufficient
to are not sufficient to withstand a motion to dismiss.").
For example, Plaintiffs' Second Amended Complaint alleges that Montana
Highway Patrol officer "Nicholas Navarro[] and at least three (3) other
MONTANA HIGHWAY PATROL OFFICERS and at least three (3) MISSOULA
SHERIFF DEPUTIES acting under 'Color of Law' and in a Conspiracy against
Rights, unlawfully detained I, David, from traveling in private conveyance and
threatened force." (Doc. 11 at 8.) However, the Second Amended Complaint fails
to provide any additional details supporting this broad allegation. The remaining
allegations are equally vague and conclusory and fail to state a cognizant claim for
relief. See Fed. Rule Civ. P. 8(a)(2) ("A pleading that states a claim for relief must
contain ... a short and plain statement of the claim showing that the pleader is
entitled to relief."); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("[T]he
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pleading standard Rule 8 announces does not require detailed factual allegations,
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.") (citation and internal quotation marks omitted).
Consequently, because Plaintiffs' Second Amended Complaint provides
only vague and conclusory allegations of Defendants' alleged unlawful conduct,
the Court will modify Judge Lynch's Findings and Recommendations, and dismiss
Plaintiffs' Second Amended Complaint for "failure to state a claim upon which
relief can be granted." Fed. R. Civ. P. 12(b)(6); see also Omar v. Sea-Land Serv.,
Inc., 813 F.2d 986, 991 (9th Cir. 1987) (district may sua sponte dismiss a
complaint for failure to state a claim).
Nevertheless, because of Plaintiffs are proceeding prose in this matter, the
Court is required to allow them to amend their pleadings before dismissing this
action. Eldridge v. Block, 832 F.2d 1132, 1135-1136 (9th Cir. 1987) ("[P]ro se
litigant bringing a civil rights suit must have an opportunity to amend the
complaint to overcome deficiencies unless it is clear that they cannot be overcome
by amendment."). Thus, thus the Court will allow Plaintiffs 21 days to cure the
deficiencies in its Second Amended Complaint and file an amended pleading.
This pleading must provide sufficient facts to state a viable claim for relief. The
Court cautions Plaintiffs that failure to allege a cognizable claim upon which relief
may be granted will result in dismissal of this matter with prejudice.
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Additionally, after the Findings and Recommendations were issued,
Plaintiffs filed a "MOTION FOR EMERGENCY INJUNCTIVE RELIEF
HEARING." (Doc. 15.) This motion requests that the Court issue an order
preventing "AGENTS" of the "STATE OF MONTANA" from detaining Plaintiffs
until their claims have been adjudicated in this Court. Read liberally, Plaintiffs are
requesting preliminary injunctive relief from this Court. However, as stated
above, Plaintiffs' Second Amended Complaint fails to meet the pleading standards
established under the Federal Rules of Civil Procedure. Thus, the Court will deny
the motion because the Second Amended Complaint does not state a claim for
relief and, therefore, Plaintiffs cannot possibility succeed on the merits of this
litigation. See Winter v. Nat. Resources Def Council, Inc., 555 U.S. 7, 20 (2008)
(in order to grant preliminary relief, plaintiff "must establish that he is likely to
succeed on the merits").
Accordingly, IT IS ORDERED that:

(1) Judge Lynch's Findings and Recommendations (Doc. 5) are MODIFIED
IN PART and REJECTED IN PART;
(2) Plaintiffs' Second Amended Complaint (Doc. 11) is DISMISSED
without prejudice. Plaintiffs are hereby given leave to filed an amended pleading
in accordance with the above Order. This amended pleading shall be filed on or
before August 9, 2017; and
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(3) Plaintiffs' Motion for Preliminary Injunction (Doc. 15) is DENIED.
Dated this 18th day of July, 2017.

Dana L. Christensen, Chief istrict Judge
United States District Court

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