IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION
JOHN DAVID GUY NISHWITZ, CV 24-80-BLG-DWM Plaintiff, VS. ORDER
YELLOWSTONE COUNTY ATTORNEYS SCOTT TWITO, EMILY JO HOARK, and SARAH HYDE, Defendants.
On June 21, 2024, Plaintiff John David Guy Nishwitz filed a 42 U.S.C.
§ 1983 Complaint. (Doc. 2.) The Complaint as drafted fails to state a claim. This
action is not proper for federal intervention. The Complaint is dismissed.
I. STATEMENT OF THE CASE A. Parties Nishwitz is a pretrial detainee held in Yellowstone County Detention
Facility. He names three Yellowstone County attorneys as defendants: Scott Twito, Emily Jo Hoark, and Sarah Hyde. (Doc. 2 at 3.) B. Allegations Nishwitz cites several sources for his claim, including the 1*, 5", 6", 8", and
14" Amendments of the U.S. Constitution, and several sections of the Montana and
U.S. Codes. (Doc. 2 at 5.) The factual allegations all relate to the defendants’
conduct in relation to the prosecution of Nishwitz, including his detention, an
alleged lack of evidence, Defendants’ conduct of discovery, Defendants’ treatment of Nishwitz’s wife, and his bail. (Docs. 2 at 7, 9 — 10; 6; and 7.) Nishwitz seeks money damages. (Doc. 2 at 11.) II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915, 1915A Nishwitz is a pretrial detainee proceeding in forma pauperis so the Court
must review his Complaint under 28 U.S.C. §§ 1915, 1915A. Sections 1915A(b) and 1915(e)(2)(B) require the Court to dismiss a complaint filed in forma pauperis and/or by a prisoner against a governmental defendant if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. A complaint is
frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “A case is malicious if it was filed with the intention or
desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). A
complaint fails to state a claim upon which relief may be granted if a plaintiff fails
to allege the “grounds” of his “entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted). Rule 8 of the Federal Rules of Civil Procedure provides that a complaint
“that states a claim for relief must contain . . . a short and plain statement of the
claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
complaint must “contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). A complaint’s allegations must cross “the line from conceivable to plausible.” /qgbal, 556 U.S. at 680. There is a two-step procedure to determine whether a complaint’s allegations cross that line. See Twombly, 550 U.S. at 556; [gbal, 556 U.S. 662.
First, the Court must identify “the allegations in the complaint that are not entitled
to the assumption of truth.” /gbal, 556 U.S. at 679, 680. Factual allegations are not
entitled to the assumption of truth if they are “merely consistent with liability,” or
“amount to nothing more than a ‘formulaic recitation of the elements’ of a constitutional” claim. Jd. at 679, 681. A complaint stops short of the line between probability and the possibility of relief where the facts pled are merely consistent with a defendant’s liability. /d. at 678. Second, the Court must determine whether the complaint states a “plausible” claim for relief. Jgbal, 556 U.S. at 679. A claim is “plausible” if the factual allegations, which are accepted as true, “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” /d. at 678. This inquiry is “a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” /d. at 679 (citation omitted). If the factual
allegations, which are accepted as true, “do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—“that the pleader is entitled to relief.’” Jd. (citing Fed. R. Civ. P.
8(a)(2)). “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardu, 551 U.S. 89, 94 (2007); cf. Fed. Rule Civ. Proc. 8(e) (“Pleadings must be construed so as to do justice”). A. Immunity As pled, Nishwitz has failed to allege any specific action committed by any particular defendant. For that reason alone, his Complaint fails to state a claim for
relief. But his general statements regarding his claims all refer to actions of
prosecutors for which they are almost certainly immune from suit.
Prosecuting attorneys who act within the scope of their duties are absolutely immune from a suit brought for damages under 42 U.S.C. § 1983 “insofar as that
conduct is ‘intimately associated with the judicial phase of the criminal process.’
Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976)); see also Ashelman vy. Pope, 793 F.2d 1072, 1076, 1078 (9th Cir.
1986). This is so even if the prosecutor has violated a plaintiff's constitutional
rights or acts with malicious intent. Broam v. Bogan, 320 F.3d 1023, 1028-29 (9th Cir. 2003); Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005). Prosecutors
are absolutely immune from suit when they function as advocates. Imbler, 424
U.S. at 430-31. However, there may be other functions performed by a prosecutor that would fall outside of this role, and in some circumstances, a prosecutor will
not be protected by immunity. Kalina v. Fletcher, 522 U.S. 118 (1997) (acting as a
witness is not a prosecutorial function). The vague allegations regarding the acts of the defendants here are all
aspects that are clearly within Defendants’ roles as prosecutors—seeking detention and bail, bringing charges, conducting discovery, etc. Nishwitz has pled nothing that would fall outside the scope of activities for which these defendants would be
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION
JOHN DAVID GUY NISHWITZ, CV 24-80-BLG-DWM Plaintiff, VS. ORDER
YELLOWSTONE COUNTY ATTORNEYS SCOTT TWITO, EMILY JO HOARK, and SARAH HYDE, Defendants.
On June 21, 2024, Plaintiff John David Guy Nishwitz filed a 42 U.S.C.
§ 1983 Complaint. (Doc. 2.) The Complaint as drafted fails to state a claim. This
action is not proper for federal intervention. The Complaint is dismissed.
I. STATEMENT OF THE CASE A. Parties Nishwitz is a pretrial detainee held in Yellowstone County Detention
Facility. He names three Yellowstone County attorneys as defendants: Scott Twito, Emily Jo Hoark, and Sarah Hyde. (Doc. 2 at 3.) B. Allegations Nishwitz cites several sources for his claim, including the 1*, 5", 6", 8", and
14" Amendments of the U.S. Constitution, and several sections of the Montana and
U.S. Codes. (Doc. 2 at 5.) The factual allegations all relate to the defendants’
conduct in relation to the prosecution of Nishwitz, including his detention, an
alleged lack of evidence, Defendants’ conduct of discovery, Defendants’ treatment of Nishwitz’s wife, and his bail. (Docs. 2 at 7, 9 — 10; 6; and 7.) Nishwitz seeks money damages. (Doc. 2 at 11.) II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915, 1915A Nishwitz is a pretrial detainee proceeding in forma pauperis so the Court
must review his Complaint under 28 U.S.C. §§ 1915, 1915A. Sections 1915A(b) and 1915(e)(2)(B) require the Court to dismiss a complaint filed in forma pauperis and/or by a prisoner against a governmental defendant if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. A complaint is
frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “A case is malicious if it was filed with the intention or
desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). A
complaint fails to state a claim upon which relief may be granted if a plaintiff fails
to allege the “grounds” of his “entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted). Rule 8 of the Federal Rules of Civil Procedure provides that a complaint
“that states a claim for relief must contain . . . a short and plain statement of the
claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
complaint must “contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). A complaint’s allegations must cross “the line from conceivable to plausible.” /qgbal, 556 U.S. at 680. There is a two-step procedure to determine whether a complaint’s allegations cross that line. See Twombly, 550 U.S. at 556; [gbal, 556 U.S. 662.
First, the Court must identify “the allegations in the complaint that are not entitled
to the assumption of truth.” /gbal, 556 U.S. at 679, 680. Factual allegations are not
entitled to the assumption of truth if they are “merely consistent with liability,” or
“amount to nothing more than a ‘formulaic recitation of the elements’ of a constitutional” claim. Jd. at 679, 681. A complaint stops short of the line between probability and the possibility of relief where the facts pled are merely consistent with a defendant’s liability. /d. at 678. Second, the Court must determine whether the complaint states a “plausible” claim for relief. Jgbal, 556 U.S. at 679. A claim is “plausible” if the factual allegations, which are accepted as true, “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” /d. at 678. This inquiry is “a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” /d. at 679 (citation omitted). If the factual
allegations, which are accepted as true, “do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—“that the pleader is entitled to relief.’” Jd. (citing Fed. R. Civ. P.
8(a)(2)). “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardu, 551 U.S. 89, 94 (2007); cf. Fed. Rule Civ. Proc. 8(e) (“Pleadings must be construed so as to do justice”). A. Immunity As pled, Nishwitz has failed to allege any specific action committed by any particular defendant. For that reason alone, his Complaint fails to state a claim for
relief. But his general statements regarding his claims all refer to actions of
prosecutors for which they are almost certainly immune from suit.
Prosecuting attorneys who act within the scope of their duties are absolutely immune from a suit brought for damages under 42 U.S.C. § 1983 “insofar as that
conduct is ‘intimately associated with the judicial phase of the criminal process.’
Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976)); see also Ashelman vy. Pope, 793 F.2d 1072, 1076, 1078 (9th Cir.
1986). This is so even if the prosecutor has violated a plaintiff's constitutional
rights or acts with malicious intent. Broam v. Bogan, 320 F.3d 1023, 1028-29 (9th Cir. 2003); Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005). Prosecutors
are absolutely immune from suit when they function as advocates. Imbler, 424
U.S. at 430-31. However, there may be other functions performed by a prosecutor that would fall outside of this role, and in some circumstances, a prosecutor will
not be protected by immunity. Kalina v. Fletcher, 522 U.S. 118 (1997) (acting as a
witness is not a prosecutorial function). The vague allegations regarding the acts of the defendants here are all
aspects that are clearly within Defendants’ roles as prosecutors—seeking detention and bail, bringing charges, conducting discovery, etc. Nishwitz has pled nothing that would fall outside the scope of activities for which these defendants would be
immune, even if he had sufficiently alleged facts that showed his entitlement to
relief. Plaintiff's Complaint fails to state a claim for relief. B. Abstention Even if Nishwitz could state a claim against defendants, the claim cannot be heard in federal court. There is a strong policy against federal intervention in state
judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff. Younger v. Harris, 401 U.S. 37, 45 (1971); see also Gooding v. Hooper, 394 F.2d 146 (9th Cir. 1968), cert. denied 391 U.S. 917 (1968). Younger directs federal courts to abstain from granting injunctive or declaratory relief that
would interfere with pending state judicial proceedings. Martinez v. Newport Beach City, 125 F.3d 777, 781 (9th Cir. 1997) overruled on other grounds, Green
v. City of Tucson, 255 F.3d 1086 (9th Cir. 2001) (citing Younger, 401 U.S. at
40-41). Federal courts may raise the issue of Younger abstention sua sponte. Martinez, 125 F.3d at 781 n.3 (citing Bellotti v. Baird, 428 U.S. 132, 143-44 n.10
(1976)); see also San Remo Hotel v. City and County of San Francisco, 145 F.3d
1095, 1103 n. 5 (9th Cir. 1998) (noting that the district and appellate courts can
raise the issue sua sponte). “Abstention in civil cases ‘is appropriate only when the state proceedings: (1) are ongoing, (2) are quasi-criminal enforcement actions or involve a state’s
interest in enforcing the orders and judgments of its courts, (3) implicate an
important state interest, and (4) allow litigants to raise federal challenges.’” Cook
v. Harding, 879 F.3d 1035, 1039 (9th Cir. 2018) (quoting ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014), Sprint Comme’ns., Inc. v. Jacobs, 571 U.S. 69, 81 (2013)). If these “threshold elements”
are met, then the Court must “consider whether the federal action would have the
practical effect of enjoining the state proceedings and whether an exception to
Younger applies.” ReadyLink, 754 F.3d at 759 citing Gilbertson, 381 F.3d at 978, 983-84. Here, the “threshold elements” of Younger are present. First, Nishwitz’s
allegations relate to ongoing criminal proceedings against him. State proceedings
are criminal enforcement actions that implicate an important state interest to enforce the local and state laws. See Younger, 401 U.S. at 43-44. The State of
Montana, through its state and local prosecuting offices, has a significant state
interest in prosecuting conduct that constitutes a criminal offense under the laws of
Montana. This Court may not interfere with those interests when the prosecutorial process is ongoing. Nishwitz will have an adequate opportunity in the state district court to raise
any issues he has regarding his federal rights. “[T|he threat to the plaintiffs federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.” Younger, 401 U.S. at 46. Nishwitz has opportunities under Montana law to address any alleged violations of his federal rights relative to his prosecution. “Younger abstention is proper only when the federal relief sought would interfere in some manner in the state court litigation.” Meredith v. Oregon, 321 F.3d 807, 816-17 (9th Cir. 2003). Here, a determination regarding Nishwitz’s ongoing state prosecution would have the effect of interfering with the “state courts’ ability to enforce constitutional principles and put the federal court in the position of making a premature ruling on a matter of constitutional law.” Gilbertson, 381 F.3d at 984. To rule on Nishwitz’s Complaint in these
circumstances would impermissibly risk interfering with the State of Montana’s administration of its judicial system. If all four prongs of the Younger test are satisfied, then the Court must abstain from adjudicating Nishwitz’s claims. Absent exceptional circumstances, district courts do not have discretion to avoid the doctrine if the elements of Younger abstention exist in a particular case. City of San Jose, 546 F.3d at 1092 (citation omitted). The recognized exceptional circumstances are limited to “a ‘showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate.’” Jd. (quoting Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 435 (1982)). Nishwitz has not alleged an exceptional circumstance sufficient to avoid abstention. The Court concludes that abstention is proper. Ul. CONCLUSION The Court has screened Nishwitz’s Complaint and determined that it fails to state a claim and that the Court must abstain. Accordingly, IT IS ORDERED that: 1. Nishwitz’s Complaint is DISMISSED. The Clerk of Court is directed to enter judgment in this matter according to Fed. R. Civ. P. 58. 2. The Clerk of Court is directed to have the docket reflect that the Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure
that any appeal of this decision would not be taken in good faith. DATED this 98 day of July, 2024. AWA Donald W. oy, District Judge United Ste ict Court
‘ .