Marble v. Missoula County et al

Filing 32

ORDER granting in part and denying in part 6 Motion to Dismiss; granting in part and denying in part 8 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 10 Motion to Dismiss for Failure to State a Claim. SEE ORDER FOR DETAILS. Signed by Judge Dana L. Christensen on 10/13/2020. (ASG)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

CODY MARBLE,
Plaintiff,

CV 20–89–M–DLC

vs.
ORDER

MISSOULA COUNTY et al.,
Defendants.

Before the Court is: (1) Defendants Dorothy Brownlow, Andrew Paul, and
Jennifer Johnson’s (collectively “Prosecuting Defendants”) Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 6); (2) Defendants
Michael McMeekin, Brad Giffin, Jeremy Meeder, Michael Dominick, and Robert
Taylor (collectively “Law Enforcement Defendants”) Motion to Dismiss (Doc. 8.);
and (3) Defendant Fred Van Valkenburg’s Motion to Dismiss (Doc. 10). For the
reasons explained, all motions are granted in part and denied in part.
BACKGROUND1
On January 3, 2017 District Judge McLean vacated Cody Marble’s
conviction for sexual assault of a minor and ordered the case for a new trial. (Doc.

Solely for the purpose of resolving these motions, the allegations contained in Marble’s
Complaint are taken as true.
1

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1 at 41.) Three days later, he dismissed the entire case. (Id.) Marble was released
having spent 13 years in prison for a crime he did not commit. (Id. at 34, 42.)
The events leading to his conviction began in early March of 2002. Marble
was 17 at the time, and briefly detained in the juvenile wing of the Missoula
County Detention Center. (See id. at 3–4.) On the evening of March 16, Scott
Kruse, a juvenile detainee charged with murdering a homeless man, reported to an
officer that a few nights prior he had witnessed Marble rape a 13-year old boy
named Robert Thomas. (Id.) Kruse claimed that sometime between 9:00 and 9:45
p.m. he saw Marble and Thomas go into the shower changing area and “s[aw]
everything” through a vanity wall. (Id. at 9.)
Deputy Brad Giffin from the Missoula County Sherriff’s Office was
dispatched to investigate. (Id. at 8.) Following Kruse’s report, four more boys
came forward with knowledge of the rape. (Id. at 4–11.) Nicholas MeltonRoberts—who had earlier unsuccessfully sought Marble’s help in framing another
boy for sexual assault—claimed he saw Marble standing behind Thomas with
Thomas’ pants pulled down. (Id. at 8.) Russell Miller initially told Giffin that he
saw Marble and Thomas engaged in oral sex, but when prompted by the deputy,
changed his story and claimed to witness anal sex. (Id. at 9.) Gregory Van
Mueller told Giffin that he observed Marble and Thomas leaving the shower area
together and later learned about the rape. (Id.) Finally, Justin Morin claimed he

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saw Marble hump Thomas through the vanity wall and claimed that Marble was
red as he left the shower. (Id. at 11.) Morin also reported that Thomas had told
him about the rape—an allegation which Thomas later denied. (Id. at 11.)
When Giffin took Kruse’s statement, Kruse admitted that he was in
lockdown during the rape, but nevertheless claimed to see Thomas bent over with
his hands on the floor. (Id.) The deputy did not question whether it was possible
to view the shower area from Kruse’s cell. (Id. at 9–10.)
Giffin did not interview Marble or Thomas as both boys had been
discharged from the facility two days prior—although Thomas eventually
corroborated the boys’ stories. (Id. at 5.) Nor did Giffin interview any of the four
detention officers on duty the night of the alleged rape. (Id. at 12.)
Meanwhile, Sergeant Dominick with the Sheriff’s Office retrieved the
security footage from the shower area. (Id. at 6.) When it did not support the
boys’ narrative of events, Dominick chalked it up to his lack of familiarity with the
juvenile facility. (Id.) He then returned to the station to brief his captains about
the investigation. (Id. at 7.)
At roughly the same time, Deputy Taylor from the Sherriff’s Office was
getting Missoula County Deputy Attorney Jennifer Johnson up to speed on the
investigation. (Id.) Taylor was acquainted with Marble from a run-in a few years
prior. (Id. at 15.) In the midst of arresting Marble, the encounter turned hostile

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when Taylor spat in Marble’s face and kicked him to the ground, after which
Taylor was suspended and the pending charges against Marble were dropped. (Id.
at 15–16.) Because of this, Taylor felt motivated to make a sexual assault charge
stick—and was even overheard telling others that he planned to make Marble’s life
“hell.” (Id. at 15, 18.) To build his case, Taylor relied on Johnson to guide the
investigation, while deputy attorneys Andrew Paul and Dorothy Brownlow were
assigned to prosecute it. (Id. at 7, 22.)
On March 17, the day after Kruse reported the rape, Dominick—
accompanied this this time by sheriff’s deputy Jeremy Meeder—drove to Marble’s
home. (Id. at 3.) The deputies arrested Marble without a warrant. (Id.) In
explanation for the arrest, Dominick told Marble’s father that he had video proof
that Marble had raped another inmate. (Id.) The officers then escorted Marble to
the police station where he was questioned without an adult or attorney present.
(Id.)
As the investigation unfolded, significant holes remained. For example, no
one bothered to interview the detention officers on duty that night—many of whom
were skeptical that a rape occurred. (Id. at 17, 20.) Reviewing the activity log,
Chief Detention Officer Scott Newman did not believe that the officer’s random
walkthroughs left adequate time for any rape to have taken place. (Id. at 16, 19.)

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Others believed that if Marble and Thomas had entered the shower area after-hours
someone would have seen it from the control room. (Id. at 13, 16.)
Still others had caught wind that Marble was being set-up. Detention
Officer Gary Lancaster overheard Melton-Roberts confess that Marble was being
framed and Officer Joanie Bigelow overheard Van Mueller tell two others that the
rape never took place. (Id. at 19–20.) These officers believed that Kruse and
Melton-Roberts had made up the rape hoping that their testimony against Marble
would favorably impact their own pending charges. (Id. at 20.) In fact, after Kruse
implicated Marble for rape, Deputy Attorney Brownlow reduced Kruse’s homicide
charge to misdemeanor assault which resulted in Kruse’s release from custody.
(Id. at 10.)
In November of 2002, Marble’s case went to trial. (Id. at 22.) Kruse did not
testify as he had fled the area after confessing to Brownlow that he did not, in fact,
witness the rape. (Id. at 23.) Kruse’s testimony was introduced by Brownlow who
took the witness stand. (Id.) The prosecution also claimed to be unable to locate
Justin Morin—whose inconsistent testimony was problematic for their case—
although they should have been able to find him as he was housed at a juvenile
facility in Boulder, Montana. (Id. at 11.) The prosecution’s case relied entirely on
the testimony of the boys, as there was no physical evidence to support a rape
taking place. (See id. at 19, 24, 26.) Deputy Attorney Paul argued at closing that

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even though Thomas’ physical exam came back negative for sexual assault, this
result, in fact, proved the rape occurred because Thomas must have a quicklyhealing anus. (Id. at 26.) At the close of trial, the jury convicted Marble. (Id. at
22.) He was later sentenced to 20 years in prison, with 15 suspended. (Id.)
In 2009, while on parole, Marble contacted the Montana Innocence Project
because he had heard rumors that Thomas, who had subsequently been convicted
for a sex crime himself, had been telling other inmates that Marble never raped
him. (Id. at 29–30.) After conducting a thorough investigation, the Innocence
Project agreed to take the case and obtained a letter from Thomas in which he
wrote:
I want to come out and let it be know[n]. I’m coming forward because
I am in prison for a sex crime and know what it is like. So I don’t want
him [Marble] to be charged with one when innocent. When I was in
[the detention center], I was [the] youngest & smallest and I was
pressured into going along with it.
(Id. at 30–31.) Thomas admitted that the other boys had bullied him into framing
Marble in the expectation that all involved would receive lighter sentences in
exchange for their testimony. (Id. at 31–32.)
During the reinvestigation, Corrina Marry who had originally testified
against Marble at trial also confessed to lying on the stand when she denied any
knowledge that Van Mueller had recanted his story to her. (Id. at 30–31.) She

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now maintains that in 2002, Van Mueller told her that Marble was set-up. (Id. at
31.)
Based on the witness recantations and evidence that it was impossible for
Kruse to have seen the shower area from where he was in lockdown on the night of
the alleged rape, the Innocence Project brought a petition for post-conviction relief.
(Id. at 31.) While the petition was pending, County Attorney Fred Van
Valkenburg, who was in charge of the County Attorney’s Office during the Marble
investigation and trial, interviewed Thomas and threatened to prosecute him for
perjury if he continued to support Marble’s case. (Id. at 32.) Thomas got cold
feet, and in 2012, during a hearing on Marble’s post-conviction petition, he stuck
by his trial testimony and claimed his recantation was false. (Id.) Ultimately, the
judge denied the petition. (Id.) While Marble’s case was on appeal, Thomas
committed suicide. (Id. at 33.)
Then, in 2015, the Montana Supreme Court reversed the denial of Marble’s
petition and sent it back for the district court to reconsider. (Id.) By this time,
Kristin Pabst had replaced Van Valkenburg as the Missoula County Attorney, and
she took a different view of the matter. In her motion to dismiss Marble’s case,
she wrote that his conviction “lacked integrity” and that “it was never too late to do
the right thing.”2 (Id. at 33–34.) Van Valkenburg, who was no longer affiliated

2

In a later filing, she wrote:

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with the County Attorney’s Office, joined the proceedings as an amicus curiae to
argue against Pabst’s motion. (Id. at 34.) On January 3, 2017, the judge vacated
Marble’s conviction. (Id. at 41.) Three days later, he granted the County’s motion
to dismiss the case. (Id.)
LEGAL STANDARD
Rule 12(b)(6) motions test the legal sufficiency of a pleading. Under Rule
8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.”
Rule 8 “does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal citations and quotations omitted). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when

As the elected county attorney, [I am] called upon to make difficult decisions on a
daily basis. One of the hardest things for lawyers to do is admit when we’ve made
a mistake. No human system is perfect but, if we are truly committed to improving
the criminal justice process, we must admit when we are wrong and commit to
making sure that doesn’t happen again . . . . After conducting an exhaustive
investigation and carefully examining all of the facts and evidence in this case, in
light of my ethical obligation to do justice, I firmly stand by my decision that the
charges against Cody Marble must be dropped. It may not be popular, but it’s the
right thing to do.
(Id. at 38.)

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the court can draw a “reasonable inference” from the facts that the defendant is
liable for the misconduct alleged. Id. On a Rule 12(b)(6) motion to dismiss, the
court must accept all factual allegations in the complaint as true and construe the
pleadings in the light most favorable to the nonmoving party. Kneivel v. ESPN,
393 F.3d 1068, 1072 (9th Cir. 2005).
Legal conclusions, on the other hand, are not entitled to the same
presumption of truth. Dismissal is proper where there is either a “lack of a
cognizable legal theory” or “the absence of sufficient facts alleged under a
cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699
(9th Cir. 1990); Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir.
1995).
DISCUSSION
Marble’s Complaint3 raises 14 claims arising under federal and state law
against numerous individuals and various County entities for actions taken during
the investigation and prosecution of his case. Prosecuting Defendants (Brownlow,
Paul, and Johnson) and Van Valkenburg move to dismiss in full asserting
immunity. Law Enforcement Defendants (McMeekin, Giffin, Meeder, Dominick

When the Court refers to Marble’s Complaint, it means the Second Amended Complaint & Jury
Demand. (Doc. 3.)
3

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and Taylor) move to dismiss Marble’s claims in part. The Court will address each
motion separately.
I.

Law Enforcement Defendants’ Motion to Dismiss
Law Enforcement Defendants (“LE Defendants”) argue that: (1) Marble’s

§ 1983 false arrest claim is barred by the statute of limitations, or alternatively fails
to state a claim against certain defendants; (2) Defendants McMeekin and Meeder
should be dismissed from Marble’s § 1983 malicious prosecution claim; (3) his
§ 1983 claim for wrongful conviction/incarceration should be dismissed as
duplicative; (4) his § 1983 claim for reckless or intentional failure to investigate
fails to state a claim; (5) all LE Defendants should be dismissed from Marble’s
§ 1983 claim for destruction/suppression of exculpatory evidence; (6) Defendants
McMeekin, Meeder, and Dominick should be dismissed from Marble’s § 1983
claim for fabrication of evidence; (7) all LE Defendants should be dismissed from
Marble’s § 1983 claim for failure to intercede; and finally, (8) Marble’s state law
claims are time barred and LE Defendants should be released from those claims in
their official capacities.
Marble defends his Complaint against most of the arguments raised by LE
Defendants, and alternatively, asks that if the Court finds any deficiencies, he be
permitted to amend his Complaint. As the Court addresses each argument raised, it
will specifically note those instances where Marble may amend. Where the Court

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does not indicate otherwise, it has concluded that any attempt to amend would be
futile. Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir.
1987) (“Denial of leave to amend is not an abuse of discretion where the pleadings
before the court demonstrate that further amendment would be futile”).4
A. False Arrest—§ 1983
LE Defendants argue that Marble’s § 1983 false arrest claim is untimely
under Wallace v. Kato, 549 U.S. 384, 387 (2007). (Doc. 9 at 17.) The Court
agrees.
The statute of limitations for a § 1983 claim is governed by relevant state
law. Id. In Montana, the period for claims premised on personal injury is three
years. See Jacobsen v. State, 996 P.2d 884, *4 (Mont. 1999) (unpublished).
However, the question of when a claim accrues “is a question of federal law that is
not resolved by reference to state law.” Id. at 388. A claim accrues, and
Montana’s three-year window begins, when the plaintiff has “a complete and
present cause of action.” Id. at 388 (citing Bay Area Laundry and Dry Cleaning
Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997) (internal
quotation marks omitted)). In Wallace, the Supreme Court held that “[r]eflective
of the fact that false imprisonment consists of detention without legal process, a
false imprisonment ends [and a claim accrues] once the victim becomes

4

The same will be true for Prosecuting Defendants’ and Van Valkenburg’s motions to dismiss.

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held pursuant to such process—when, for example, he is bound over by a
magistrate or arraigned on charges.” Id. at 389 (emphasis in original).
Here, Marble alleges that Defendants Dominick and Meeder arrested him at
his home without a warrant giving rise to a viable false arrest claim. (Doc. 3 at
44). However, once Marble was charged, the three-year time clock on this claim
began, making his January 2019 complaint untimely. Marble does not argue
otherwise. This claim is dismissed.
B. Malicious Prosecution—§ 1983
LE Defendants argue that Defendants Sheriff McMeekin and Deputy
Meeder should be dismissed from this claim. (Doc. 9 at 21.) As a preliminary
matter, Marble does not contest dismissal of Defendant Meeder. Accordingly, the
Court will dismiss Meeder and focus its attention on McMeekin.
LE Defendants claim that Marble does not implicate McMeekin in any
unlawful aspect of the investigation because (according to the Complaint)
all he did was “believe[] the juvenile detainees’ and victim’s statements rather than
the juvenile detention officers’ statements” which does not demonstrate that he
“wrongfully caused charges to be filed.” (Doc. 9 at 21 (citing Awabdy v. City of
Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004).)
Under federal law, a claim for malicious prosecution requires the plaintiff to
show “that the defendants prosecuted [him] with malice and without probable

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cause, and that they did so for the purpose of denying [him] equal protection or
another specific constitutional right.” Id. (quoting Freeman v. City of Santa
Ana, 68 F.3d 1180, 1189 (9th Cir. 1995) (alterations in original)). “Malicious
prosecution actions are not limited to suits against prosecutors but may be brought,
as here, against other persons who have wrongfully caused the charges to be filed.”
Id. (citing Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126–27 (9th Cir.
2002)).
Marble contends that LE Defendants read his Complaint against McMeekin
too narrowly. He argues that McMeekin knew that the witness statements
contradicted one another and that the juvenile detention officers believed the rape
was not possible, yet he permitted Marble’s prosecution under his watch. (Doc. 22
at 14–15.) Moreover, as Sherriff, Marble asserts that McMeekin acted through his
deputies and is responsible under a theory of supervisory liability. (Id. (citing
Wilson v. Maricopa Cty., 463 F. Supp. 2d 987, 995 (D. Ariz. 2006)).)
The problem is that Marble did not raise any supervisory liability theory in
his Complaint nor did he assert that Sherriff McMeekin acted in concert with the
other deputies in his malicious prosecution allegations. The mere fact that Sherriff
McMeekin believed in the State’s theory of the case in light of conflicting evidence
does not satisfy the causal requirement for a malicious prosecution claim because

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the Complaint fails to allege that McMeekin was responsible for instigating a
malicious prosecution against Marble. Awabdy, 368 F.3d at 1066.
The Court will dismiss McMeekin from this claim as currently alleged,
however, Marble will be permitted to amend this claim as to McMeekin only, as
the facts raised against dismissal would, if alleged in the Complaint, survive a
motion to dismiss.
C. Wrongful Conviction/Incarceration—§ 1983
LE Defendants next allege that Marble’s claim for wrongful
conviction/incarceration should be dismissed as duplicative of his malicious
prosecution claim. (Doc. 9 at 24.)
Stemming from its inherent power to manage its docket, a district court has
discretion to dismiss any duplicative claim. M.M. v. Lafayette Sch. Dist., 681 F.3d
1082, 1086 (9th Cir. 2012). LE Defendants assert that the Court should exercise
that discretion here as the claims for malicious prosecution and wrongful
conviction are substantively the same, and if anything, the claim for wrongful
conviction is narrower as “Marble ties it directly to alleged failures to conduct an
adequate investigation[.]” (Doc. 9 at 24.) In response, Marble asserts only that
these claims are commonly pled together. (Doc. 22 at 21.) The customary
pleading practices of a plaintiff’s attorney is not a sufficient reason for the Court to
retain a redundant count. This claim is dismissed.

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D. Reckless or Intentional Failure to Investigation—§ 1983
LE Defendants assert that the Ninth Circuit does not recognize any
constitutional right to an adequate police investigation. (Doc. 9 at 25 (citing
Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (per curiam); Hageman v.
Bates, No. CV-06-09 MDWM, 2007 WL 927584, at *8 (D. Mont. Mar. 23, 2007)
findings and recommendation adopted by, id. at *1).) Marble argues that the cases
cited by LE Defendants are distinguishable: Gomez held only that a victim had no
right to an investigation of a potential suspect and Hageman found no right to an
investigation related to personal property. (Doc. 22 at 22–23.) Marble argues that
the due process clause of the Fourteenth Amendment provides a constitutional
right to an adequate police investigation when an individual’s liberty interests are
at stake. (See id. at 23.)
While neither Gomez nor Hagman is on all fours, the Court can find no
indication that the Ninth Circuit has recognized anyone’s claim to an adequate
police investigation—whether that person is the suspect, victim, or family member
of either. In Gomez, the plaintiffs, family members of a young boy killed in an
accident while trespassing on a construction site, brought a § 1983 claim alleging
that the police failed to adequately investigate their son’s death. 757 F.2d at 1005.
The Ninth Circuit found no viable claim, concluding that a “prerequisite to
recovery under . . . § 1983, is that the plaintiff prove that the defendants deprived

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him of a right secured by the Constitution[.]” Id. at 1005–06. Speaking in broad
language, the court explained that there is no “due process right to have a full and
fair police investigation into violence done [to the plaintiffs] or their children.” Id.
at 1006. “We can find no instance where the courts have recognized inadequate
investigation as sufficient to state a civil rights claim unless there was another
recognized constitutional right involved[,]” such as discriminatory policing. Id.
This Court relied on Gomez in similarly rejecting a § 1983 claim brought by
the family members of a man killed by a fatal gunshot wound to the head.
Hageman, 2007 WL 927584, at *3. In Hageman, the plaintiffs claimed that law
enforcement officers failed to investigation the circumstances surrounding the
shooting when they concluded that the victim took his own life. Id. at *7.
Although other allegations in the case involved missing personal property, Marble
is incorrect that the failure to investigate allegation was tethered to that concern.
And, although the plaintiffs there were the immediate family members of the
deceased—as in Gomez, the Court did not hinge its conclusion on those
relationships. It wrote:
Federal law clearly establishes there is no viable legal claim under 42
U.S.C. § 1983 for a law enforcement officer’s inadequate investigation
of an alleged crime. State officials have no duty under federal law to
victims of crimes, or to families of crime victims, to conduct a criminal
investigation in the manner demanded by the victim or the families,
even if law enforcement officers’ conduct is not in compliance with
governing policies and procedures. Police officers have no affirmative
duty to a plaintiff to investigate a crime in a particular way. Law

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enforcement officers’ failure to investigate a crime does not rise to the
level of a violation of any constitutional right.
Id. at *7 (internal citations omitted).
Although Marble undoubtedly has a fundamental right to be free from
wrongful conviction, that is the right covered by his malicious prosecution claim.
Moreover, “[w]here a particular Amendment ‘provides an explicit textual source of
constitutional protection’ against a particular sort of government behavior, ‘that
Amendment’, not the more generalized notion of ‘substantive due process,’ must
be the guide for analyzing these claims.” Awabdy, 368 F.3d at 1069 (quoting
Graham v. Connor, 490 U.S. 386, 395 (1989)). As the Court can find no Ninth
Circuit recognition of the right needed to state an independent Fourteenth
Amendment claim, the Court will dismiss this count. However, it will allow
Marble to amend to the extent he wishes to seek damages for discriminatory denial
of police services. Estate of Macias v. Ihde, 219 F.3d 1018, 1028 (9th Cir. 2000);
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Marble’s Complaint
already lays the groundwork for such a claim by alleging that Deputy Taylor and
others at the department denied him a fair investigation because they disliked him.
E. Destruction/Suppression of Exculpatory Evidence—§ 1983
LE Defendants seek to be dismissed from Marble’s destruction/suppression
of evidence claim because it is “precisely the type of ‘unadorned, the defendantunlawfully-harmed-me accusation’ that Iqbal prohibits.” (Doc. 9 at 27 (citing

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Iqbal, 556 U.S. at 678).) In defense, Marble largely restates the same vague
allegations to which LE Defendants object, asserting, for example, that the
deputies “created false evidence by ignoring obviously exculpatory evidence” and
conducted a “results oriented investigation.” (Doc. 22 at 17–18.) These types of
allegations fail Iqbal’s specificity requirements. The only specific instance of
destruction or suppression concerning law enforcement is Marble’s claim that
deputies created false evidence by correcting witness statements and inducing
witnesses to lie. These allegations support Marble’s claim for fabrication of
evidence not destruction/suppression. Having scoured the Complaint and finding
no specific instance of any LE Defendant destroying or suppressing evidence in the
investigation of Marble, LE Defendants are dismissed from this claim. If
discovery yields evidence that would support Marble’s theory, he may be granted
leave to amend upon appropriate motion.5

5

When the Court enters its scheduling order in this case, it will provide the parties with a
deadline for amending the pleadings without leave of court. The Court will allow Marble to
amend his Complaint on Counts II, IV and VI consistent with this Order so long as he does so by
this deadline. However, this deadline will occur well in advance of the close of discovery.
Because this particular claim of Marble’s requires further factual development which may not be
available to him prior to that deadline, Marble may bring a motion pursuant to Federal Rule
15(a)(2) if he discovers facts which support amendment. The same is true of Count VII.

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F. Fabrication of Evidence—§ 1983
LE Defendants seek to dismiss Sheriff McMeekin, Deputy Meeder, and
Sergeant Dominick from Marble’s fabrication of evidence claim. (Doc. 9 at 30.)
Marble does not oppose dismissal of Meeder. Therefore, Meeder is dismissed.
In defense of McMeekin, Marble raises the same observations he made in
response to his malicious prosecution claim—that as the individual in charge,
McMeekin is charged with knowledge and acquiescence in the actions of his
deputies. (See Doc. 22 at 15–16.) While this is certainly plausible, Marble’s
Complaint does not raise these allegations and so McMeekin will be dismissed. As
with his malicious prosecution claim, Marble is permitted to amend his Complaint
to correct this deficiency.
As for Dominick, Marble contends that he reviewed the surveillance footage
and failed to familiarize himself with the area. (Id. at 16.) But it is not clear how
ignoring the significance of evidence favorable to Marble is fabricating
condemning evidence. In short, Marble raises no allegation that Dominick
manipulated or created anything out of thin air in order to implicate Marble in the
sexual assault. Dominick is dismissed.
G. Failure to Intercede—§ 1983
LE Defendants seek to be dismissed from this claim, arguing that Marble has
not alleged a sufficient factual basis to support their inclusion. (Doc. 9 at 31.)

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Marble points to only one specific example: he argues that Defendant Giffin who
initially took witness statements and prompted the witnesses to ensure the
consistency of their statements should have been aware that his conduct was
unlawful and could have interceded at any other time. (Doc. 22 at 20.) More
broadly, Marble asserts that all of the LE Defendants worked the case together and
“it is reasonably anticipated that further evidence will come to light through
discovery that they were keenly aware of each other’s actions.” (Id.)
The question at this juncture is whether the Complaint itself is adequate.
Marble’s arguments that discovery may reveal further supportive evidence only
speaks to whether amendment is proper.
“Police officers have a duty to intercede when their fellow officers violate
the constitutional rights of a suspect or other citizen.” United States v. Koon, 34
F.3d 1416, 1447 n.25 (9th Cir. 1994), rev’d in part on other grounds, 518 U.S. 81
(1996). “Importantly, however, officers can be held liable for failing to intercede
only if they had an opportunity to intercede.” Cunningham v. Gates, 229 F.3d
1271, 1289 (9th Cir. 2000).
Here, Marble asserts only that Giffin had an opportunity to intercede in his
own unlawful interviews. Arguing that Giffin failed to intervene in Giffin’s own
act does not provide a factual basis for this claim. LE Defendants will be
dismissed from this claim, however, for the reasons Marble indicates, he may be

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permitted to amend this Complaint upon appropriate motion if discovery supports
this theory.
H. State Law Claims
LE Defendants seek to be dismissed from Marble’s state law claims as
redundant. (Doc. 9 at 33.)
A suit against a municipal actor in her official capacity is equivalent to a suit
against the entity. Kentucky v. Graham, 473 U.S. 159, 165 (1985). When both are
named, a court has discretion to dismiss the officer in her official capacity as
redundant. Ctr. For Bio-Ethical Reform, Inc. v. Los Angeles Cty. Sheriff Dep’t,
533 F.3d 780, 799 (9th Cir. 2008).
Here, Marble lists both the Missoula County Sherriff’s Office as well as
each individual officer in his official capacity. To avoid redundancy, the Court
dismisses the LE Defendants from Marble’s state law claims.
II.

Prosecuting Attorneys’ Motion to Dismiss
Prosecuting Defendants argue that all claims against them should be

dismissed because: (1) they are entitled to absolute prosecutorial immunity on all
claims; (2) Johnson is entitled to qualified immunity for claims related to providing
investigation advice; (3) each of Marble’s state law claims are barred by the statute
of limitations; (4) Marble’s claim for failure to disclose exculpatory evidence
should be dismissed under Rule 12(b)(6) for failure to state a claim; (5) Marble’s

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Complaint relies on impermissible group pleading; and (6) all other claims should
be dismissed for failure to demonstrate personal involvement.
A. Absolute Prosecutorial Immunity
Prosecuting Defendants assert that prosecutorial immunity shields them
from each of Marble’s federal and state law claims. (Doc. 6 at 3.) Federal
prosecutorial immunity applies to Marble’s § 1983 claims, whereas state
immunities apply to state law claims. Imbler v. Pachtman, 424 U.S. 409, 418–24
(1976) (recognizing prosecutorial immunity as grounded in 42 U.S.C. § 1983
despite no textual recognition of such in the statute); e.g., Boruchowitz v. Bettinger,
654 F. App’x 354, 355 (9th Cir. 2016) (unpublished) (analyzing Nevada law to
determine whether state prosecutors were immune from state law claims).
Nevertheless, it appears Montana law draws no distinction between the source of
the immunity, see Renenger v. State, 426 P.3d 559, 563–67 (Mont. 2018), and
treats the two as “coextensive,” Bros. v. Monaco, 363 F. Supp. 3d 1138, 1145 (D.
Mont. 2019). The Court will therefore draw no distinction in its analysis.
Prosecutorial immunity insulates prosecutors for all actions taken within the
scope of their duties in pursuing a criminal prosecution. Imbler, 424 U.S. at 410.
“[T]he absolute immunity that protects the prosecutor’s role as an advocate is not
grounded in any special ‘esteem for those who perform these functions, and
certainly not from a desire to shield abuses of office, but because any lesser degree

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of immunity could impair the judicial process itself.’” Kalina v. Fletcher, 522 U.S.
118, 127 (1997) (quoting Malley v. Briggs, 475 U.S. 335, 342 (1986)). Instead, it
“protects the prosecutor from harassing litigation that would divert his time and
attention from his official duties and to enable[e] him to exercise independent
judgment when deciding which suits to bring and in conducting them in
court.” Torres v. Goddard, 793 F.3d 1046, 1051 (9th Cir. 2015) (quoting
Kalina, 522 U.S. at 125 (1997) (internal quotation marks omitted)).
In determining whether absolute immunity applies in a given situation,
courts take a “functional approach,” looking past the identity of the actor and
instead examining the “nature of the function performed” and whether it falls
within the scope of acts “intimately associated with the judicial phase of the
criminal process.” Buckley v. Fitzsimmons, 509 U.S. 259, 269–70 (1993). In
Imbler, the leading case on point, the Supreme Court held that absolute immunity
covers the “initiation and pursuit of a criminal prosecution, including presentation
of the state’s case at trial.” Id. (citing Imbler, 424 U.S. at 421). On the other hand,
acts taken in investigating, offering legal advice to the police, or acts of an
administrative nature are not entitled to absolute immunity. Id.
As an initial matter, Johnson is not entitled to absolute immunity. Marble
alleges that Johnson oversaw the police investigation which is an act for which a
prosecutor enjoys only qualified immunity. Barlow and Paul, however, are a

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different story. Marble alleges: (1) both prosecutors pursued the case against him
despite thin evidence (id. at 23); (2) they both hid Kruse to prevent him from
testifying at trial because his subsequent statement that he never witnessed the rape
hurt the State’s case (id. at 22–23); (3) Brownlow inappropriately took the witness
stand and testified against him at trial even though she was prosecuting his case
(id. at 23); (4) both prosecutors discredited credible defense witnesses at trial (id. at
24–25); (5) they suppressed evidence and lied to discredit evidence favorable to
Marble (id. at 25); (6) Brownlow was motivated by a personal dislike of Marble
(id. at 25–26); (7) Paul made an inappropriate closing argument suggesting that
Thomas’ anus healed quickly when no evidence supported this theory (id. at 26);
and (8) their general ineptitude is emblematic of the systemic failures at the County
Attorney’s Office to properly handle sexual assault cases (id. at 26–27).
Marble argues that Brownlow and Paul are only entitled to qualified
immunity—generally asserting that their pre-charged conduct involved oversight
of the investigation. (Doc. 25 at 13–15.) However, the Complaint never
specifically alleges that Brownlow or Paul involved themselves in the
investigation. Their pre-charge conduct—to the extent it is described at all—is
limited to the decision to pursue charges despite thin evidence. The decision to
pursue a case falls within the heart of their absolute immunity. See Torres, 793
F.3d at 1051.

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Marble next argues that Brownlow and Paul’s post-charge conduct falls
outside of their roles as advocates for the State. (Doc. 25 at 18–19.) Although not
explicitly stated as such, Marble seems to argue that any questionable behavior—
whether unconstitutional, unethical, or simply not customary (such as a prosecutor
taking the witness stand at their own trial)—falls outside their role as an advocate.
This is simply not true. Taking Marble’s allegations at face value, it appears
Brownlow and Paul engaged in a series of shenanigans designed to prevent Marble
from obtaining a fair trial. If anything, these acts demonstrate that Brownlow and
Paul overstepped ethical and legal boundaries by being too zealous of advocates
for the State. Nevertheless, each act alleged is “intimately associated with the
judicial phase of the criminal process,” Imbler, 424 U.S. at 430, because it
occurred in preparation for, or during, trial. Defendants Brownlow and Paul are
dismissed from this case as protected by prosecutorial immunity.
B. Qualified Immunity—§ 1983 claims
Marble alleges only one fact against County Attorney Johnson. He asserts
she provided investigation advice and oversight to the law enforcement officers
pursuing Marble’s case. This is not an act for which Johnson receives absolute
prosecutorial immunity. Buckley, 509 U.S. at 276–77. Nevertheless, Johnson
argues any claim against her is barred by the doctrine of qualified immunity. (Doc.
7 at 22.)

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Qualified immunity provides a defense to a § 1983 claim when the accused
official reasonably believes her conduct to be lawful. See Harlow v. Fitzgerald,
457 U.S. 800, 813–19 (1982). It protects “all but the plainly incompetent or those
who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Once raised, qualified immunity shields the official unless the plaintiff can show:
“(1) that the official violated a statutory or constitutional right, and (2) that the
right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011).
Marble asserts that qualified immunity is not applicable here because it is
reasonable to infer, based on law enforcements’ actions, that Johnson advised them
not to interview the detention officers and told them how to tailor the investigation
to implicate him. (Doc. 25 at 14.) He argues that Johnson participated in a
“malicious scheme to ensure Marble was convicted of a crime he did not commit.”
(Id. at 16.) Additionally, he argues that Johnson’s participation in suppression of
evidence violates the Fourteenth Amendment. (Id.)
Although Marble may believe that conducting a “malicious scheme” to
“wrongfully convict” a suspect is a violation of a “clearly established constitutional
right,” he does not name the right at issue. Courts are repeatedly instructed not to
define the right at issue “at a high level of generality.” Id. at 741. “The dispositive
question is ‘whether the violative nature of particular conduct is clearly

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established.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting
al-Kidd, 562 U.S. at 741) (emphasis in original). Moreover, once qualified
immunity is raised as a defense, the plaintiff bears the burden to show the official
violated a “clearly established” federal right. Sweaney v. Ada County, 119 F.3d
1385, 1388 (9th Cir. 1997). Only then does the burden shift back to the defendant
to demonstrate her conduct was reasonable. Houghton v. South, 965 F.2d 1532,
1534 (9th Cir. 1992).
By failing to name the right at issue and arguing only that generalized
wrongful conduct violated an unidentified provision of the constitution, Marble
does not meet his burden to show which “clearly established” right Johnson
violated when she advised and oversaw the investigation of his case.
As for his argument that Johnson additionally violated his Fourteenth
Amendment rights by suppressing evidence, Marble’s Complaint does not allege
that Johnson played any role in his prosecution. This is an argument he raises only
in defense of this motion. As such, Johnson is entitled to qualified immunity
against each of Marble’s § 1983 claims.
C. Statute of Limitations—State law claims
Having concluded that Brownlow and Paul should be dismissed from the
case and that Johnson is entitled to qualified immunity against Marble’s § 1983
claims, the Court must now address the remaining arguments related to the state

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law claims. Prosecuting Defendants first argue that all state law claims are time
barred.
Prosecuting Defendants contend that all of the state law claims allege
personal injury for which Montana provides a three-year statute of limitations. The
jury returned its verdict on November 22, 2002 but Marble’s initial complaint was
not filed until January 3, 2019. In Montana, the statutory period begins when “all
elements of the claim or cause exist or have occurred.” Mont. Code Ann. § 27–2–
102. Prosecuting Defendants assert that all of Marble’s state law claims accrued
when the jury returned its verdict 15 to 16 years before the suit was filed. (Doc. 7
at 32.) This is not universally true.
i.

Malicious Prosecution

Marble argues that his malicious prosecution claim is timely because it did
not accrue until he was granted post-conviction relief. (Doc. 25 at 26.) This is
correct. In Rouse v. Anaconda-Deer Lodge County, the Montana Supreme Court
held that a claim for malicious prosecution does not accrue until a plaintiff is
acquitted of the crime for which he was maliciously prosecuted. 817 P.2d 690, 694
(Mont. 1991) overruled on other grounds by Stratemeyer v. Lincoln Cty., 276
Mont. 67, 74 (1996). Accordingly, Marble’s malicious prosecution claim survives.

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ii.

False Arrest

Similarly, Marble cites Rouse to support his assertion that his false arrest
claim is timely. (Doc. 25 at 26.) In Montana, a claim for false arrest requires: (1)
the restraint of an individual against her will; and (2) the unlawfulness of the
restraint. Hughes v. Pullman, 36 P.3d 339, 343 (Mont. 2001). Presumably, Marble
means to argue that until a court determines that such restraint is not lawful, i.e. a
conviction results in acquittal, a claim has not accrued. Prosecuting Defendants
offer no argument in response. Nevertheless, the Wallace decision, which serves
as an analogue here, expressly forecloses this notion. 549 U.S. at 389. Wallace
held that a claim for false imprisonment accrues when an individual is held
pursuant to the legal process—“when he is bound over by a magistrate or arraigned
on charges.” Id. This claim accrued long before Marble filed his January 2019
complaint.
iii.

Dowart claim

Marble argues that his Dowart claim (raising violations of fundamental
rights of liberty, equal protection, and due process under Montana’s constitution)
did not accrue until he was released from prison because in order to show that his
“liberty was unjustly taken from him, it is necessary that the underlying conviction
be vacated and the charges against him dismissed.” (Doc. 25 at 28.) This

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argument is reasonable and Johnson offers nothing in rebuttal. Marble’s Dowart
claim will advance as to Johnson.
iv.

Negligence, NIED, & IIED

Marble next argues that the Court should follow the Seventh Circuit’s lead
in Parish v. City of Elkhart, in determining that a claim for Intentional Infliction of
Emotional Distress (“IIED”)—and by extension Negligence and Negligence
Infliction of Emotional Distress (“NIED”)—in the context of a wrongful
conviction does not accrue until the conviction is set aside. 614 F.3d 677, 683 (7th
Cir. 2010). In Parish, the court determined that the accrual date for an IIED claim
premised on a wrongful conviction occurs upon acquittal. Id. at 683–84. The
court reasoned that determining whether a defendant’s actions are “extreme and
outrageous” requires it to consider whether, for example, an officer “committed
perjury, falsified evidence, coerced witnesses to commit perjury, [or] withheld
exculpatory evidence” all of which inherently challenge the validity of the
underlying conviction. Id. at 683. Consistent with the Supreme Court’s analysis
of a malicious prosecution claim for wrongful conviction, the court determined that
it is not proper to challenge the validity of a conviction through any mechanism
other than a writ of habeas corpus. Id. (citing Heck v. Humphrey, 512 U.S. 477,
482 (1994)). Therefore, the court concluded that a valid IIED claim for wrongful
conviction is only permissible after a court sets a conviction aside. Id. at 684.

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Again, Prosecuting Defendants offer no argument in rebuttal. Finding the
Seventh Circuit’s reasoning persuasive, the Court will permit the claims for
Negligence, NIED, and IIED to advance as to Defendant Johnson.
D. Impermissible Group Pleading
Defendants argue the Court should throw away Marble’s Complaint for
relying on impermissible group pleading. (Doc. 7 at 33.) This is an argument
echoed by LE Defendants, yet all Defendants have thus far been able to effectively
argue why allegations and conduct particular to them warrant dismissal. The Court
finds no deficiency in the Complaint on this basis.
E. Dismissal for Factual Insufficiency
Finally, Prosecuting Defendants argue that Marble has failed to demonstrate
the personal involvement necessary to state a claim under each count. (Doc. 7 at
34.) Yet beyond stating, for example, that “Marble fails to plausibly allege the
personal involvement of Johnson in malicious prosecution,” Prosecuting
Defendants offer no further argument or citation. It is not the job of the Court to
develop a party’s arguments on their behalf. See Stuard v. Stewart, 401 F.3d 1064,
1067 (9th Cir. 2005). Using the malicious prosecution example, Prosecuting
Defendants entirely fail to explain: (1) what Marble needed to show; and (2)
specifically how the facts he alleged failed that showing. Although the facts
alleged against Johnson are thin—and there are arguably arguments left on the

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table that would warrant her dismissal from these counts—these claims shall
survive, at least until summary judgment.
III.

Van Valkenburg’s Motion to Dismiss

Former Missoula County Attorney Fred Van Valkenburg moves to dismiss
all claims raised against him. (Doc. 10.)
A. Absolute Prosecutorial Immunity
As Van Valkenburg points out, Marble does not allege many facts that
support his participation in Marble’s wrongful conviction. The Complaint alleges
that Van Valkenburg: (1) was the supervisor of the County Attorney’s Office
during Marble’s investigation, trial, and initial post-conviction proceedings and
failed to prevent his employees from committing ethical violations (Doc. 3 at 4,
24–29); (2) he threatened to pursue a perjury charge against Thomas if Thomas
continued to support Marble’s 2010 petition for post-conviction relief (id. at 32–
33); and (3) he joined Marble’s 2017 remand post-conviction proceedings as an
amicus curiae (because he was no longer affiliated with the County Attorney’s
Office) to oppose the position taken by that Office (id. at 33–39). Van Valkenburg
argues that absolute prosecutorial immunity covers each of these acts. (Doc. 11 at
15–19.)
Marble’s first allegation—that Van Valkenburg supervised all attorneys in
this case—is easily resolved. Even assuming Van Valkenburg may be held

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accountable for Brownlow and Paul’s actions under a theory of supervisory
liability, absolute prosecutorial immunity shields him from liability for supervising
these attorneys in their prosecution of a criminal case against Marble. The second
two allegations present a more challenging case.
Marble first argues that absolute immunity does not protect Van
Valkenburg’s 2010 interview with Thomas because interviewing a witness in order
to fabricate testimony is an investigative function for which a prosecutor enjoys
only qualified immunity. (Doc. 23 at 6.)
The Ninth Circuit recognizes that not all of a prosecutor’s witness interviews
are entitled to absolute immunity. Genzler v. Longanbach, 410 F.3d 630 (9th Cir.
2005). In Genzler, the court parsed the difference between a witness interview
conducted for the purpose of trial preparation—for which a prosecutor is
absolutely immune, and a witness interview that occurs either early in the
investigation or is otherwise one that would ordinarily be conducted by police—for
which a prosecutor enjoys only qualified immunity. Id. at 637–38.
The relevant facts are thus: Genzler was a charged with homicide after he
fatally stabbed an acquittance (Harless) outside a bar. Id. at 634. After the
stabbing, police interviewed the victim’s fiancé (Flanders) who witnessed the
altercation. Id. Flanders initially told officers that Harless crossed the street to
where she was standing outside of Genzler’s car, knocked on Genzler’s window,

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and when Genzler got out, the two of them threw punches. Id. According to
Flanders, Harless then flipped Genzler to the ground which is when Genzler
stabbed him. Id. Flanders also told officers that Harless was a skilled wrestler and
street fighter. Id.
Shortly after speaking with officers, Flanders met with the Deputy District
Attorney Longanbach. Id. Longanbach told her that in order to convict Genzler,
she needed to lie about what she saw the night of the stabbing and lie about
Harless’ violent past. Id. at 635. After this meeting, Flanders abruptly changed
her testimony and testified at trial that she remembered little of the fight, and that
she though she saw someone pull Genzler off Harless after the stabbing. Id. at
634. She was evasive on the stand and did not acknowledge Harless’ history of
street fighting. Id.
In reviewing the applicable law, the Ninth Circuit recognized notable limits
on a prosecutor’s immunity. For example, there is no immunity for prosecutors
who fabricate evidence “‘during the early stage of the investigation’ when ‘police
officers and assistant prosecutors [are] performing essentially the same
investigatory functions.’” Id. at 637 (quoting Buckley, 509 U.S. at 273). Nor does
a prosecutor enjoy absolute immunity before she has probable cause to arrest or
charge an individual—as she cannot be said to be an “advocate” at this time. Id.
(citing Buckley, 509 U.S. at 274). But timing alone is not dispositive; even after a

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probable cause determination a prosecutor may still engage in “‘police
investigative work’ that is entitled to only qualified immunity.” Id. at 638 (quoting
Buckley, 509 U.S. at 273.) Instead, when a prosecutor interviews a witness, the
immunity question hinges on the type of interview being conducted. Id. An
interview done to evaluate evidence and prepare a witness for trial is conduct for
which a prosecutor is absolutely immune, whereas an investigation “of the type
normally done by police” entitles the prosecutor only to qualified immunity. Id.
The court then determined that Longanbach’s interview with Flanders which
occurred very early in the investigation only days after the fatal stabbing took
place, was an interview that would ordinarily be conducted by police because his
primary purpose was information gathering. Id. at 642–43.
Admittedly, asking whether the type of interview in a given situation is one
that would normally be conducted by the police, does not present a bright line rule
that lends itself to consistent and predictable application. Here, however, the task
is not so thorny. Marble’s Complaint alleges that Van Valkenburg interviewed
Thomas in preparation for a hearing on Marble’s post-conviction proceeding.
Even though Marble alleges that Van Valkenburg threatened Thomas into lying to
avoid a perjury charge, the immunity question does not hinge on allegations of bad
conduct. Given that this interview occurred years after the State had obtained a
conviction against Marble and that post-conviction proceedings do not usually

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involve any type of police investigation, it is clear that Van Valkenburg was not
performing the type of work that would ordinarily fall to the police. Prosecutorial
immunity shields Van Valkenburg from liability for this act.
Finally, Marble argues that Van Valkenburg is not entitled to prosecutorial
immunity for his action in opposing the State’s motion to dismiss the charges
against Marble in 2017 after Van Valkenburg had left the County Attorney’s
Office. (Doc. 23 at 7.) Van Valkenburg asserts that he is entitled to absolute
immunity because he “was acting at all times as an advocate for the County” and
the law provides prosecutors protection during post-conviction proceedings. (Doc.
11 at 18.)
Although the Court has repeatedly clarified that the nature of prosecutorial
immunity does not hinge on the status of the actor but on the particular function
performed, Buckley, 509 U.S. at 269–70, this does not mean that the status of the
actor is irrelevant. Prosecutorial immunity is immunity provided to prosecutors—
not former prosecutors. When Van Valkenburg requested leave to join Marble’s
2017 post-conviction proceedings as an amicus curiae he no longer had any
affiliation with the County Attorney’s Office. Nor can it be said that he acted as an
“advocate for the State” when he was taking an adversarial stance to that of the
County. Van Valkenburg makes much of the fact that the district court granted his
permission to join as an amicus—but this does not mean that he was acting in any

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state-sanctioned official capacity. Individuals who voluntarily inject themselves
into a judicial process are not entitled to prosecutorial immunity because they are
not prosecutors and there is no valid public policy good served by protecting them
from the consequences of their wrongful actions. See Torres, 793 F.3d at 1051.
Van Valkenburg is not immune from suit for his participation in those proceedings.
B. Dismissal for Lack of Factual Development
i.

Destruction, Suppression, & Fabrication of Evidence

Additionally, Van Valkenburg asserts that Marble does not allege a factual
basis for his inclusion in Counts V or VI—claims for destruction, suppression, and
fabrication of evidence. (Doc. 11 at 20.) Van Valkenburg notes that most of the
conduct that would support these claims occurred during the lead up to Marble’s
trial in 2002—for which Van Valkenburg is either immune or is not alleged to
have played any role. (Doc. 11 at 20–21.) The only other fact that could arguably
support such claims is his witness interview with Thomas in 2012—and the Court
has already determined that Van Valkenburg has immunity for this act. The Court
agrees and will dismiss Van Valkenburg from these claims.
ii.

Failure to Intercede

Van Valkenburg seeks dismissal from Count VII, arguing that there is no
factual basis to support this allegation. (Doc. 11 at 22.) The Court agrees,
although not for the reasons Van Valkenburg advances.

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The Court has already concluded that Van Valkenburg can only be held
accountable for his participation in the 2017 post-conviction proceedings.
Officers have a duty to intercede when they (1) know a fellow officer is violating
another’s constitutional rights; and (2) they have an opportunity to do so. Koon, 34
F.3d at 1447 n.25; Cunningham, 229 F.3d at 1289. In 2017, Van Valkenburg was
not a state actor or other official. For this reason, Marble’s claim against Van
Valkenburg fails.
C. State Law Claims
Van Valkenburg asserts that he should be dismissed from Marble’s state law
claims in his official capacity as redundant because the Missoula County
Attorney’s Office has already been named. (Doc. 11 at 24.) Alternatively, he
asserts he is statutorily immune from these claims under Montana Code Annotated
§ 2-9-305. (Id. at 25.) Finally, he argues that all state law claims are time barred.
(Id. at 25–27.)
Consistent with its conclusions above, some but not all of Marble’s state law
claims are time barred. Supra, II.C. Second, Van Valkenburg is incorrect that he
enjoys statutory immunity for his actions in the 2017 post-conviction proceedings.
Section 2-9-305(2) only applies to employees of government entities. However,
consistent with its ruling on LE Defendants’ motion, the Court will grant Van
Valkenburg’s dismissal in his official capacity from Marble’s state law claims as

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redundant. However, Marble will be permitted to amend his Complaint to name
Van Valkenburg in his individual capacity for each of his timely state law claims.
D. Remaining Claims
The Court will not address Van Valkenburg’s remaining arguments that
dismissal is warranted for Counts I, III, IV, and IX as the Court has already
dismissed these claims on other grounds.6
Conclusion
In sum, Count I is dismissed as time barred. Count II shall go forward as to
Giffin, Dominick, Taylor, and Van Valkenburg. Count III is dismissed as
duplicative. Count IV is dismissed for failure to state a claim. Having dismissed
all parties from Count V, this claim is now dismissed. Count VI shall go forward
as to Giffin and Taylor. Having dismissed all parties from Count VII, this claim is
now dismissed. Count VIII shall go forward as to Missoula County. Count IX is
dismissed as time barred. Count X shall go forward as to Johnson, Missoula
County, the Missoula County Sherriff’s Office, and the Missoula County
Attorney’s Office (“County Entities”). Count XI shall go forward as to Johnson
and County Entities. Count XII shall go forward as to Johnson and County

6

Van Valkenburg also argues for his dismissal from Count VIII—Marble’s Monell claim. (Doc.
11 at 23.) Such argument is unnecessary as Marble does not name Van Valkenburg as a
defendant under that count. (Doc. 3 at 56.)

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Entities. Count XIII shall go forward as to Johnson and County Entities. Count
XIV shall go forward as to Johnson and County Entities.
IT IS ORDERED that Prosecuting Defendants’ Motion (Doc. 6) is
GRANTED in part and DENIED in part.
1. Defendants Brownlow and Paul are dismissed from the case.
2. Defendant Johnson is dismissed from Marble’s claims arising under 42
U.S.C. § 1983 (Counts I–VII).
3. Count IX is dismissed as time barred.
IT IS FURTHER ORDERED that Law Enforcement Defendants’ Motion
(Doc. 8) is GRANTED in part and DENIED in part.
1. Count I is dismissed as time barred.
2. Defendant McMeekin is dismissed from Count II. Marble may amend
this claim.
3. Count III is dismissed as duplicative to Count II.
4. Count IV is dismissed for failure to state a claim. Marble may amend
this claim.
5. Law Enforcement Defendants are dismissed from Count V.
6. Defendants Dominick, Meeder, and McMeekin are dismissed from Count
VI. Marble may amend this Count to allege McMeekin’s involvement.
7. Count VII is dismissed for failure to state a claim.
8. All Law Enforcement Defendants are dismissed from Marble’s state law
claims (Counts X–XIV) in their official capacities.

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IT IS FURTHER ORDERED that Van Valkenburg’s Motion to Dismiss
(Doc. 10) is GRANTED in part and DENIED in part.
1. Van Valkenburg is dismissed from Counts V and VI.
2. Van Valkenburg is dismissed from Count VII.
3. Van Valkenburg is dismissed from Marble’s state law claims (Counts X–
XIV) in his official capacity. Marble may amend these claims to name
Van Valkenburg in his individual capacity.
DATED this 13th day of October, 2020.