Opinion
Case No. 3:20-cv-00235-JR
08-10-2020
ALLEN B. COX, Plaintiff, v. THE STATE OF OREGON, Defendant.
FINDINGS AND RECOMMENDATION :
The State of Oregon moves to dismiss pro se plaintiff Allen Cox's amended complaint based on Eleventh Amendment immunity. For the reasons set forth below, defendant's motion should be granted, and this case should be dismissed.
BACKGROUND
On February 12, 2020, plaintiff initiated this action asserting violations of the Fourteenth Amendment's Equal Protection clause. Specifically, plaintiff alleged that his prosecution and conviction for harassment by the Clackamas County District Attorney's Office was wrongful in light of its failure to adequately investigate information he volunteered prior to and during sentencing. See generally Compl. (doc. 1).
On March 6, 2020, defendant moved to dismiss the complaint pursuant to the Eleventh Amendment. Plaintiff opposed that motion, questioning the "fairness" of sovereign immunity.
On May 11, 2020, the Court granted defendant's motion, explaining that any claim against the state based on his allegedly wrongful conviction was precluded in this forum:
the Eleventh Amendment bars a damages action against a State in federal court. Plaintiff's sole claim alleges violation of the Fourteenth Amendment's Equal Protection clause and, by extension, 42 U.S.C. § 1983. The State of Oregon has not waived its immunity to suits brought under § 1983. Furthermore, [b]ecause plaintiff is seeking a de facto appeal of a state court decision via this action - namely, he alleges the state court erred by not admitting certain evidence at trial and sentencing - the Rooker-Feldman doctrine applies. The proper place for an appeal of the state court decision is the Oregon state court system.Cox v. Oregon, 2020 WL 2374972, *2 (D. Or. Mar. 23), adopted by 2020 WL 2341113 (D. Or. May 11, 2020). The Court, however, afforded plaintiff the opportunity to seek amendment within 30 days. Id.
On June 3 and June 10, plaintiff filed a "Motion to Amend" and "Second Motion to Amend," respectively. Although phrased as motions, these documents did not address conferral or include any proposed amendments in accordance with Local Rules 7-1(a) and 15(c), and instead requested that the Court reconsider its prior ruling regarding the application of sovereign immunity. Accordingly, on June 18, 2020, the Court construed plaintiff's filings as motions for reconsideration, which were denied. Plaintiff was then instructed that he had 14 days "to submit an amended complaint that complies with the Court's prior ruling, as well as Local Rules 7-1(a) and 15(c), or this case will be dismissed." Minute Order (June 18, 2020) (doc. 17).
On July 7, 2020, without first seeking or obtaining an extension, plaintiff lodged an amended complaint, again asserting claims under 42 U.S.C. § 1983 premised on his purportedly wrongful Clackamas County prosecution and conviction. Am. Compl. ¶¶ 2-7 (doc. 19). Plaintiff also alleges that, even though the "deputy DA did not ask for jail time or community service," the Circuit Judge sentenced him with "10 days of jail time" and an unspecified amount of community service "in order to save money." Id. at ¶¶ 8-11. As relief, plaintiff seeks $20,000,000 in damages and an end to "institutional produced slavery" caused by the "collusion between County commissioners and the court system [to] relieve budgets expenditures" by using "sentencing power to maintain a mandatory workforce in the counties community service program." Id. at ¶¶ 11-12. In conclusion, the amended complaint expressly "ask[s] the court to dismiss the defense of the 11th amendment in that it subsequently negates constitutional guarantees for citizens." Id. at ¶ 13.
Plaintiff also lists certain state law tort claims in the caption of his amended complaint. Am. Compl. p. 1 (doc. 19). However, plaintiff does not include any specific allegations or counts in relation to these claims, nor does he include any information related to the provision of notice under the Oregon Torts Claims Act. See Or. Rev. Stat. § 30.275(2)(b) (a plaintiff asserting state law tort claims against a public body or its employees must give notice of such claims "within 180 days after the alleged loss or injury"). In any event, the Eleventh Amendment also "bars [any] suit for . . . violations of state law in federal court." Ochoa v. Serv. Empls. Int'l Union Local 775, 2019 WL 4918748, *3 (E.D. Wash. Oct. 4, 2019). --------
On July 21, 2020, defendant filed the present motion, seeking dismissal of plaintiff's lawsuit with prejudice. As of this date, plaintiff has not filed any opposition to defendant's motion.
STANDARD OF REVIEW
Where the plaintiff "fails to state a claim upon which relief can be granted," the court must dismiss the action. Fed R. Civ P. 12(b)(6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of the motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Regardless, bare assertions that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). The court, in many circumstances, instructs the pro se litigant regarding deficiencies in the complaint and grants leave to amend. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se plaintiff's claims may be dismissed with prejudice only where it appears beyond doubt the plaintiff can prove no set of facts that would entitle him or her to relief. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008)
DISCUSSION
Defendant asserts that prejudicial dismissal is warranted "as the State of Oregon has 11th Amendment immunity and Plaintiff has been unable or unwilling to adequately amend his claims." Def.'s Mot. Dismiss 1-2 (doc. 20). Defendant also contends the amended complaint fails because plaintiff filed it "without written consent from the Defendant or leave of the Court," in violation of Fed. R. Civ. P. 15. Id. at 2.
The Court finds defendant's arguments well-taken. As this Court discussed in its prior decision, "[t]he 11th Amendment prohibits the commencement or prosecution of any suits [and] applies to a suit brought against a state by one of its own citizens, as well as to a suit brought by a citizen of another state." Ex Parte Young, 209 U.S. 123, 149-50 (1908). Further, "absent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court." Kentucky v. Graham, 473 U.S. 159, 169 (1985).
Here, defendant unambiguously states: "The State of Oregon does not waive its 11th Amendment immunity from suit." Def.'s Mot. Dismiss 2 (doc. 20). Nor has there been any valid congressional override in regard to plaintiff's claims. In addition, any controversy relating to plaintiff's jail time and community service no longer appears to be live, as the amended complaint indicates that plaintiff has completed his sentence. See Spencer v. Kemna, 523 U.S. 1, 7 (1998) ("throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision") (citation and internal quotations omitted). Thus, plaintiff's § 1983 claims for damages fail as a matter of law because defendant is absolutely immune from suit. Will v. Mich. Dep't of Police, 491 U.S. 58, 71 (1989).
Moreover, to the extent plaintiff is seeking an appeal of the Clackamas County Circuit Court's decision via these proceedings, both as it relates to his conviction and sentencing, his claims are barred by the Rooker-Feldman doctrine. See Bell v. City of Boise, 709 F.3d 890, 897 (9th Cir. 2013) ("[t]he Rooker-Feldman doctrine forbids a losing party in state court from filing suit in federal district court complaining of an injury caused by a state court judgement, and seeking federal court review and rejection of that judgement"). Finally, the Court notes that plaintiff has repeatedly declined to follow the Court's orders regarding the amendment of his claims.
In sum, the Court previously identified the same deficiencies in regard to plaintiff's original complaint and granted him leave to amend. However, the amended complaint is substantively identical to the original complaint and plaintiff's filings makes clear that the main tenet of seeking amendment is simply to encourage the Court to diverge from its past rulings and established precedent regarding sovereign immunity. Relatedly, plaintiff does not identify any additional facts in his possession that would cure the defects discussed above or in the Court's prior opinion. Therefore, the Court recommends that dismissal be with prejudice. See Stewart v. Mortg. Elec. Registration Sys., Inc., 2010 WL 1054384, *8 (D. Or. Feb. 18), adopted by 2010 WL 1054697 (D. Or. Mar. 19, 2010) (dismissing the pro se plaintiff's amended claim with prejudice where the plaintiff ignored "the court's previous order").
RECOMMENDATION
For the reasons herein, defendant's Motion to Dismiss (doc. 20) should be granted and judgment should be prepared dismissing this case. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 10th day of August, 2020.
/s/ Jolie A. Russo
Jolie A. Russo
United States Magistrate Judge