Opinion
Civil No. 05-161-CO.
February 14, 2005
ORDER TO PROCEED IN FORMA PAUPERIS AND RECOMMENDATION TO DISMISS DEFENDANTS
IN FORMA PAUPERIS/FILING FEE
Plaintiff, an inmate at Snake River Correctional Institution, filed this action pursuant to 42 U.S.C. § 1983 and moves to proceed in forma pauperis (#1). An examination of the application reveals that plaintiff is unable to afford the fees of this action. Accordingly, plaintiff's Application (#1) is allowed. However, for the reasons set forth below, plaintiff's claims against defendants State of Oregon and Multnomah County should be dismissed. Accordingly, the Clerk of the Court shall issue process as to the City of Portland, Terry Kruger and Daryl Turner only.
Pursuant to the Prison Litigation Reform Act, P.L. 104-134 ( 110 Stat. 1321), Section 804(a)(3) (to be codified at .S.C. § 1915(b)(1)), a prisoner proceeding in forma pauperis is required to pay the full filing fee of $150.00 when funds exist. Plaintiff has authorized the agency having custody of him to collect the filing fee from his prison trust account when funds exist. However, plaintiff has been without funds for the six months immediately preceding the filing of his complaint. Accordingly, the court shall not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(2). When funds exist, plaintiff shall be obligated to make monthly payments of 20 percent of the preceding month's income credited to plaintiff's trust account. These payments shall be collected and forwarded by the agency having custody of plaintiff to the Clerk of the Court each time the amount in plaintiff's trust account exceeds $10.00, until the filing fee is paid in full. Id.
ORDER TO DISMISS
I. BACKGROUNDPlaintiff alleges that defendants violated his constitutional rights by excluding him from a "drug free zone" pursuant to a city of Portland ordinance.
For the reasons set forth below, plaintiff's claims against the State of Oregon and Multnomah County should be dismissed for failure to state a claim. See Prison Litigation Reform Act, P.L. 104-134 ( 110 Stat. 1321), Section 804(5) (to be codified at 28 U.S.C. § 1915(e)(2)); see also Sparling v. Hoffman Constr. Co., 864 F.2d 635, 637 (9th Cir. 1988).
II. STANDARDS
"In federal court, dismissal for failure to state a claim is proper `only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)); Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989). In making this determination, this court accepts all allegations of material fact as true and construes the allegations in the light most favorable to the nonmoving party.Tanner, 879 F.2d at 576.
In civil rights cases involving a plaintiff proceeding pro se, this court construes the pleadings liberally and affords the plaintiff the benefit of any doubt. McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).
Before dismissing a pro se civil rights complaint for failure to state a claim, this court supplies the plaintiff with a statement of the complaint's deficiencies. McGuckin, 974 F.2d at 1055; Karim-Panahi, 839 F.2d at 623-24; Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se litigant will be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Karim-Panahi, 839 F.2d at 623; Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987).
III. DISCUSSION
The Eleventh Amendment to the United States Constitution provides:
The Judicial Power of the United States shall not be construed to extend to any suit in law equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
The Supreme Court has recognized that the amendment reflects the fundamental principle of sovereign immunity as a limitation on the grant of judicial authority in Article III. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1173 (9th Cir. 1984). Thus, despite the limited terms of the amendment, federal courts cannot entertain an action brought by a citizen against his or her own state.Id.
The Supreme Court has repeatedly stated that a state or its officials and agencies may not be sued by private individuals in federal court unless the state has unequivocally consented to that action, or Congress has unequivocally expressed its intent under the Fourteenth Amendment to waive the immunity of the States. Board of Trustees of University of Alabama v. Garrett, 531 U.S. ___, 121 S.Ct. 955 (2001); see also, Quern v. Jordan, 440 U.S. 332 (1979); Edleman v. Jordan, 415 U.S. 651, 673 (1984); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984). The Eleventh Amendment otherwise bars any such action regardless of the nature of the relief sought. Cory v. White, 457 U.S. 85 (1982); Brooks v. Sulpher Springs Valley Elec. Co-Op, 951 F.2d 1050, 1053 (9th Cir. 1991)["The Eleventh Amendment's jurisdictional bar covers suits naming state agencies and departments as defendants, and applies whether the relief sought is legal or equitable in nature]. In addition, a states waiver of sovereign immunity in its own courts does not waive its Eleventh Amendment immunity in federal courts. Edleman v. Jordan, supra. Thus, the enactment of the Oregon Tort Claims Act did not waive the State of Oregon's Eleventh Amendment immunity. Therefore, plaintiffs' claims against the State of Oregon are barred by the Eleventh Amendment. In addition, as discussed below, plaintiff has not alleged any factual basis for a claim against the state of Oregon.
Plaintiff's claim in this case involves the enforcement of a City of Portland ordinance that was subsequently held to be unconstitutional. There is nothing in the record to indicate any involvement by the State of Oregon or Multnomah County. Plaintiff's only factual allegations regarding these defendants a are: 1.) "the responsibility for oversight of such action [the individual Portland Police Officer's alleged conduct] extends to the district attorney's office;" and 2.) "The State of Oregon and Multnomah County by and through its jurisdictional standing and involvement of the district attorney office is liable for failing to intervene with remedial action to prevent petitioner damages from false imprisonment and trespass. . . ." Complaint (#1) pp. 10, 11. Plaintiff has not alleged any factual or legal basis for the State of Oregon or Multnomah County's "responsibility for oversight" or duty to "intervene with remedial action" on plaintiff's behalf.
I find that plaintiff has failed to state a claim against the State of Oregon and Multnomah County and that the deficiencies in plaintiff's claims against these defendants cannot be cured by amendment. Therefore, plaintiff's claims against the State of Oregon and Multnomah County should be dismissed.
CONCLUSION
Plaintiff's Application to Proceed In forma Pauperis (#1) is allowed. However, plaintiff's claims against the State of Oregon and Multnomah County should be dismissed for failure to state a claim.
The Clerk of the Court is directed to issue process as to defendants City of Portland and Portland City Police Officers Terry Kruger and Daryl Turner, service of the summons and complaint to be made by the U.S. Marshal's Service.
The appropriate officer at the Oregon Department of Corrections shall collect payments from plaintiff's inmate trust account and shall forward those payments to the Clerk of the Court in accordance with the formula set forth above until a total of $150.00 has been collected and forwarded to the Clerk of the Court. The payments shall be clearly identified by the name and number assigned to this action.
The Clerk of the Court is directed to send a copy of this order to:
Oregon Department of Corrections Central Trust Unit 2575 Center St. Salem, Oregon 97310
The recommendation to dismiss defendants State of Oregon and Multnomah County 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 ten (10) 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 have ten (10) days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered 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 the Magistrate Judge's recommendation.