Azure v. Great Falls Police Department

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
BRIAN JAMES AZURE,
Plaintiff,
vs.
GREAT FALLS POLICE DEPT.,
Defendant.
Cause No. CV 25-72-GF-DLC
ORDER
Plaintiff Brian James Azure filed a 42 U.S.C. § 1983 Complaint alleging
violations of his constitutional rights. (Doc. 2.) The Complaint failed to state a
claim, but Azure was allowed to amend. (Doc. 9.) Azure’s amended complaint
may state a claim as to some defendants, but he also added new defendants against
whom he does not state a claim. (Doc. 10.) The Amended Complaint will be
ordered served on some defendants and dismissed as to others, as described below.
I. SCREENING PURSUANT TO 28 U.S.C. §§ 1915, 1915A
Azure is proceeding in forma pauperis so the Court must review his
Complaint under 28 U.S.C. §§ 1915 and 1915A. The Court’s previous screening
order is incorporated here by reference. (Doc. 9.) Section 1915(e)(2)(B) requires
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
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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 her “entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quotation omitted).
A. Standard
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.” Iqbal, 556 U.S. at 680.
“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”).
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B. Monell Liability
Azure was advised that to allege a § 1983 claim against the police
department itself, he must demonstrate that the alleged constitutional deprivation
was the product of a policy or custom of the local governmental unit, because
municipal liability must rest on the actions of the municipality, and not the actions
of the employees of the municipality, such as the police officers. See Connick v.
Thompson, 563 U.S. 51, 60 (2011) (explaining that local governments are
responsible only for ‘their own illegal acts,’” and therefore to impose liability on a
local government under § 1983, plaintiffs must prove that an “action pursuant to
official municipal policy” caused their injury). Despite filing an Amended
Complaint, Azure has identified no custom or policy of the Great Falls Police
Department that would make it liable under this theory. The Police Department
will be dismissed without prejudice.
C. Public Defender Defendants
Azure’s Amended Complaint names two public defenders as defendants:
Samuel L. Harris and Mark Frisbie. (Doc. 10 at 3 – 10.) Harris and Frisbie are not
persons “acting under color of state law” within the meaning of 42 U.S.C. § 1983.
and cannot be sued under § 1983. The actions of Azure’s lawyers cannot be
considered to be “state action,” because public defenders are specifically opposed
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to the state in the court of law. “[I]t is the function of the public defender to enter
“not guilty” pleas, move to suppress State's evidence, object to evidence at trial,
cross-examine State's witnesses, and make closing arguments in behalf of
defendants. All of these are adversarial functions. We find it peculiarly difficult to
detect any color of state law in such activities.” Polk Cnty. v. Dodson, 454 U.S.
312, 320 (1981) (concluding public defenders to not act under color of law within
the meaning of § 1983). Azure cannot state a claim under § 1983 against the public
defenders. Harris and Frisbie are dismissed.
D. Judicial Defendants
Azure has named two judges as defendants, Judge Parker and Judge
Grubich. (Doc. 10 at 4.) However, a plaintiff cannot state a claim against a judicial
officer under 42 U.S.C. § 1983 “because [a] judge is absolutely immune for
judicial acts.” Simmons v. Sacramento County Superior Court, 318 F.3d 1156,
1161 (9th Cir. 2003); see also Lund v. Cowan, 5 F.4th 964, 972 (9 th Cir. 2021)
(“[A] judicial act does not stop being a judicial act even if the judge acted with
‘malice or corruption of motive.’” (citation omitted)). Defendants Parker and
Grubich are dismissed.
F. Prosecutor Defendants
Azure has named two county attorneys as defendants, Kory Larsen and
Joshua A. Racki. (Doc. 10 at 4.) Prosecuting attorneys who act within the scope of
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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 v. 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. “Prosecutors are absolutely
immune from liability for the consequences of their advocacy, however inept or
malicious, because it is filtered through a neutral and detached judicial body[.]”
Lacey v. Maricopa Cnty., 693 F.3d 896, 913 (9th Cir. 2012). Azure has alleged no
facts regarding these defendants that would fall outside of the scope of these
defendants’ duties. Defendants Larsen and Racki are dismissed.
II. CONCLUSION
Azure’s Amended Complaint may state claims against the police officer
defendants. They will be served by separate order. However, he fails to state
claims against Defendants Great Falls Police Department, Harris, Frisbie, Larsen,
Racki, Parker, and Grubich. They are dismissed.
Accordingly, it is HEREBY ORDERED:
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1. 	Defendants Harris, Frisbie, Larsen, Racki, Parker, and Grubich are
DISMISSED. Great Falls Police Department is DISMISSED, without prejudice.
By separate Order, the police officer defendants will be asked to waive service of
the Amended Complaint.
2. 	At all times during the pendency of this action, Azure must
immediately advise the Court of any change of address and its effective date.
Failure to file a notice of change of address may result in the dismissal of the
action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).
DATED this 27th day of October, 2025.
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