Elansari v. Montana

• Decision Date: 06 October 2021
• Docket Number: CV 21-57-H-BMM-KLD
• Parties: AMRO ELANSARI, Plaintiff, v. THE STATE OF MONTANA, AUSTIN KNUDSEN INDIVIDUAL CAPACITY, ANNE W. YATES INDIVIDUAL CAPACITY, Defendants,
• Court: U.S. District Court — District of Montana

AMRO ELANSARI, Plaintiff,
v.
THE STATE OF MONTANA, AUSTIN KNUDSEN INDIVIDUAL CAPACITY, ANNE W. YATES INDIVIDUAL CAPACITY, Defendants,

No. CV 21-57-H-BMM-KLD

United States District Court, D. Montana, Helena Division

October 6, 2021

FINDINGS & RECOMMENDATION

Kathleen L. DeSoto United States Magistrate Judge

On August 20, 2021, the Court issued an Order granting pro se Plaintiff Amro Elansari’s motion for leave to proceed in forma pauperis. (Doc. 7).

I. Screening Requirement

Because Elansari is proceeding in forma pauperis, the Court must review his Complaint to determine if the allegations are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. If so, the Complaint must be dismissed. 28 U.S.C. § 1915(e)(2).

1

Dismissal for failure to state a claim is appropriate when the complaint “either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory.” Zixiang Li v. Kerry, 710 F.3d 995, 999 (9^th Cir. 2013) (quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9^thCir. 2008)). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.,” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)), and “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A plausibility determination is context specific, and courts must draw on judicial experience and common sense in evaluating a complaint. See Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9ht Cir. 2014).

“Section 1915 requires a court to dismiss an action at any time if the defendant is entitled to immunity.” Chavez v. Robinson, 817 F.3d 1162, 1167 (9^thCir. 2016). “Once a court has sufficient information to make a determination on immunity, the statute mandates dismissal – even if dismissal comes before the defendants are served.” Chavez, 817 F.3d at 1167

2

(citing Lopez v. Smith, 203 F.3d 1122, 1130 (9^th Cir. 2000). Section 1915(e) applies to both absolute and qualified immunity. Chavez, 817 F.3d at 1168.

Where, as here, the plaintiff is proceeding pro se, the court has an obligation “to construe the pleadings liberally and to afford the [plaintiff] the benefit of any doubt.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). But even where the plaintiff is proceeding pro se, the complaint should be dismissed if it appears “beyond a doubt that the plaintiff can prove no set of facts in support of his claim.” See Pena v. Gardner, 976 F.2d 469, 471 (9^th Cir. 1997). A pro se plaintiff must be given leave to amend unless it is “absolutely clear that the deficiencies of the complaint cannot be cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9^th Cir. 2007). If it clear that the complaint’s deficiencies cannot be cured by amendment, dismissal without leave to amend is appropriate. See e.g. Chaset v. Fleer/Skybox Int’l, 300 F.3d 1083, 1088 (9^th Cir. 200); Klamath-Lake Pharmaceutical Ass’n v. Klamath Medical Services Bureau, 701 F.2d 1276, 1293 (9^th Cir. 1983).

II. Elansari’s Allegations

Elansari brings this action under 42 U.S.C. § 1983 against the State of Montana, Montana Attorney General Austin Knudsen in his individual capacity, and Montana Assistant Attorney General Anne Yates in her individual capacity.

3

On July 8, 2021, the State of Montana Department of Justice Office of Consumer Protection sent Elansari a cease-and-desist letter via certified mail regarding the unauthorized practice of law.^[1] (Doc. 2-1). The letter is signed by Yates, and advises Elansari that “[i]t has come to the Montana Attorney General’s attention that you are posting on Craigslist Montana communities and offering to draft pleadings and file legal documents, among other things.” (Doc. 2-1, at 1). The letter explains that the Office of Consumer Protection is charged by the Montana Supreme Court with responsibility for investigating whether a person is practicing law without a license. (Doc. 2, at 1). The letter goes on to state that all persons providing legal services in Montana for anyone other than themselves must be licensed by the Montana Supreme Court, and refers to Mont. Code Ann. § 37-61-201 for a description of who is considered to be practicing law. (Doc. 2-1, at 1). The letter advises Elansari that what he is offering to do in his Craigslist ads, and what he is “arguably already committing” constitutes the unauthorized practice of law in Montana. (Doc. 2-1, at 3). The letter states that Elansari “must immediately cease and desist,” and if the Office of Consumer Protection...