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

Filing 20

ORDER DISMISSING CASE. Signed by Judge Dana L. Christensen on 12/14/2017. (APP)

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,

CV 17-67-M-DLC-JCL

ORDER
Plaintiffs,
vs.
TIM FOX et al.,
Defendants.
On May 17, 201 7, Plaintiffs filed their Complaint purporting to assert 18
separate causes of action against the State of Montana, all of the State of
Montana's agents, and all of the State of Montana's public trustees and employees.
(Doc. 1) On May 31, 2017, Magistrate Judge Jeremiah C. Lynch filed his Findings
and Recommendations recommending that Plaintiffs action be dismissed for lack
of jurisdiction without leave to amend. (Doc. 5 at 6.) Judge Lynch noted that
Plaintiffs' "implausible and frivolous allegations" were devoid of any factual basis
or legal claim upon which the Court's jurisdiction could be founded. (Id.) Further
Judge Lynch found that the jurisdictional defects in Plaintiffs' Complaint could
not be cured by the "addition of further facts or claims." (Id.) On June 6, 2017,

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Plaintiffs filed an Amended Complaint (Doc. 7) which was superseded shortly
thereafter by the filing of yet another Amended Complaint on June 13, 2017 (Doc.
11). Plaintiffs also timely filed an objection to Judge Lynch's Findings and
Recommendations on June 15, 2017. (Doc. 13.)
On July 18, 2017, the Court modified in part and rejected in part Judge
Lynch's Findings and Recommendations. (Doc. 18 at 5.) In doing so, the Court
dismissed Plaintiffs' Second Amended Complaint (Doc. 11) without prejudice and
gave Plaintiffs 21 days to file an amended pleading pursuant to Eldridge v. Block,
832 F.2d 1132, 1135-36 (9th Cir. 1987). (Doc. 18 at 4-5.) After laborious and
liberal interpretation of Plaintiffs' Second Amended Complaint, the Court found
that it contained only vague and conclusory statements which failed to allege a
viable claim for relief. The Court stated that 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." (Id. at 3 (quoting Fed. Rule Civ. P. 8(a)(2)).)
Further, the Court explained that Rule S's pleading standard "does not require
detailed factual allegations, but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation." (Id. at 3--4 (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).) Importantly, in giving Plaintiffs leave to file an

amended pleading, the Court cautioned Plaintiffs that "failure to allege a
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cognizable claim upon which relief may be granted will result in dismissal of this
matter with prejudice." (Id. at 4.)
Before the Court is a "Notice" filed by Plaintiffs including numerous
separately signed pages each titled "Common Law Claim to be Heard by a Jury in
the Superior Court of Record at Common Law, Federal Article III Jurisdiction."
(Doc. 19.) As this document was filed within the time frame the Court allotted to
Plaintiffs for the filing of an amended pleading and purports to assert 11 claims
against 34 separate defendants, the Court will liberally construe this as Plaintiffs'
Third Amended Complaint.
Despite the liberal construction and interpretation afforded Plaintiffs' Third
Amended Complaint, dismissal with prejudice is warranted in this matter.
Plaintiffs have received repeated and thorough explanation of the rules of
procedure in both Judge Lynch's Findings and Recommendations (Doc. 5) and
this Court's previous Order (Doc. 18). Plaintiffs have also been afforded an
opportunity to implement this instruction by filing a third amended complaint.
(Doc. 18 at 4.) Additionally, Plaintiffs received a warning that failure to plead a
cognizable claim upon which relief could be granted would result in their case
being dismissed with prejudice. (Id.) Despite all of this, Plaintiffs' Third
Amended Complaint wholly fails to allege a claim upon which relief may be
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granted.
As pro se litigants, Plaintiffs are bound by the rules of procedure. Ghazali
v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). Pleadings in federal court must set forth

sufficient allegations to invoke the jurisdiction of the Court. Fed. R. Civ. P.
8(a)(l). The burden is on the plaintiff to establishjurisdiction. Farmers Ins. Ex.
v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). Judge

Lynch previously explained the grounds for establishing either diversity or federal
question jurisdiction in his Findings and Recommendations. (Doc. 5 at 2-6.) As
has also been previously stated, a pleading must contain "a short and plain
statement of the claim showing that the pleader is entitled to relief." (Doc. 18 at 3
(quoting Fed. Rule Civ. P. 8(a)(2)).) Again, the complaint must contain more
"than an unadorned, the-defendant-unlawfully-harmed-me accusation." (Id. at 3-4
(quoting Ashcroft, 556 U.S. at 678).) A district court may sua sponte dismiss a
complaint for failure to state a claim or whenever it appears that jurisdiction is
lacking. Fed. R. Civ. P. 12(h)(3); Fiedler v. Clark, 714 F.2d 77, 78-79 (9th Cir.
1983); Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987).
Here, the Third Amended Complaint does not cure any of the defects
stressed in previous orders of the Court. The pleading is devoid of any attempt to
establish jurisdiction other than the inclusion of the words "Federal Article III
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Jurisdiction" in the title of each page. (Doc. 19 at 1-51.) Additionally, the
pleading is completely devoid of any factual support and amounts to a litany of
"unadorned, the-defendant-unlawfully-harmed-me" accusations. (Doc. 19.)
Accordingly,
IT IS ORDERED that Plaintiffs' Third Amended Complaint (Doc. 19) is
DISMISSED WITH PREJUDICE for failure to state a claim.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in
this case.
DATED this

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~
day of December, 2017.

Dana L. Christensen, Chief Judge
United States District Court

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