Opinion
CV-00-326-ST
January 18, 2001
FINDINGS AND RECOMMENDATION
INTRODUCTION
On March 20, 2000, this court issued a Findings and Recommendations ("FR") sua sponte recommending that plaintiffs' pro se Complaint be dismissed for failure to name the proper defendant(s) and for lack of standing, but with leave to replead in conformance with the FR. On May 11, 2000, the Honorable James A. Redden issued an Opinion and Order adopting the FR and allowing plaintiffs 30 days to replead their claims in an amended complaint.
On June 12, 2000, plaintiffs filed an Amended Complaint pro se again challenging the constitutionality of the Oregon Vehicle Code and its enforcement by officials of the State of Oregon. The only material change is that the Amended Complaint names the State of Oregon as the sole defendant. The State of Oregon then filed a Motion to Dismiss the Amended Complaint (docket #29) for failure to state a claim, lack of subject matter jurisdiction, and lack of standing. On August 28, 2000, this court issued a Findings and Recommendations ("FR") recommending that the Motion to Dismiss should be granted and that plaintiffs should be granted leave to replead in conformance with the FR. On October 25, 2000, the Honorable Robert E. Jones issued an Opinion and Order adopting the FR and allowing plaintiffs 30 days to replead their claims by filing a second amended complaint.
Plaintiffs vigorously deny that they are challenging the constitutionality of the Oregon Vehicle Code. However, in the Amended Complaint, plaintiffs again argue that the United States Constitution prohibits the State of Oregon from restricting in any manner their use of the "highways" and that the State of Oregon officials' enforcement of the Oregon Vehicle Code against them is arbitrary and indiscriminate in violation of the due process clause of the Fifth Amendment to the United States Constitution. Thus, it is clear that plaintiffs are in fact challenging the constitutionality of the Oregon Vehicle Code.
After obtaining an extension of time to file a second amended complaint, on December 11, 2000, plaintiffs filed another Amended Complaint. The new Amended Complaint appears to be identical to the prior Amended Complaint.
Because plaintiffs have not complied with the court's prior Orders and still fail to state a claim upon which relief can be granted despite two opportunities to do so, the new Amended Complaint should be dismissed with prejudice.
STANDARDS
A motion to dismiss under Federal Rule of Civil Procedure ("FRCP") 12(b)(6) will be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957); Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1527 (9th Cir 1995); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir 1995). "The issue is not whether [the] plaintiff will ultimately prevail but whether the [plaintiff] is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Thus, the review is limited to the complaint, and all allegations of material fact are taken as true and viewed in the light most favorable to the nonmovant. Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir), cert denied, 506 U.S. 999 (1992); Love v. United States, 915 F.2d 1242, 1245 (9th Cir 1989).
Courts must give liberal construction to pro se pleadings and provide pro se litigants with notice of the deficiencies in their complaint before dismissal for failure to state a claim. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir 1988). The "court must bear in mind . . . the well established rules that the complaint of a pro se litigant should be liberally construed in his favor [and] that his allegations must be taken as true in considering whether a claim is stated." Salahuddin v. Cuomo, 861 F.2d 40, 42-43 (2nd Cir 1988) (citations omitted). However, even pro se litigants must comply with the Federal Rules of Civil Procedure. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir 1995), citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir 1987). Although this court must liberally construe a pro se complaint, "a liberal interpretation of a . . . complaint may not supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir 1982).
DISCUSSION
As discussed in the two prior FRs, plaintiffs must bring their claims against state officials based on alleged violations of the United States Constitution under 42 U.S.C. § 1983. Plaintiffs again fail to specify that their claims arise under § 1983. However, this court will so construe them.
This court is fully aware that plaintiffs do not believe that they are citizens of a State or Territory over which the United States has jurisdiction and thus argue that they are not required to bring their claims under § 1983. This court previously rejected that argument and required plaintiffs to bring their claims under § 1983.
II. Proper Defendant(s)
A. Eleventh Amendment Bar
The Eleventh Amendment to the United States Constitution prohibits suits in federal court against a state, regardless of the nature of the relief sought, unless the state unequivocally consents. Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100, 106 (1984). Oregon has not consented to suit by explicitly waiving its Eleventh Amendment immunity. See Rounds v. Oregon State Bd. of Higher Ed., 166 F.3d 1032 (9th Cir 1999); Quillin v. Oregon, 127 F.3d 1136 (9th Cir 1997). Further, the Supreme Court has recognized that "Congress, in passing § 1983, had no intention to disturb the States' Eleventh Amendment immunity." Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989).
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 or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of Subjects of any Foreign State.
The Eleventh Amendment applies whether or not a court has subject matter jurisdiction due to a federal question or diversity of citizenship because it is a grant of complete immunity to the States from the United States Constitution precluding suits against them in federal court absent their consent.
The new Amended Complaint, as did the prior Amended Complaint, names only the State of Oregon as a defendant. Although plaintiffs seek declaratory relief, the Eleventh Amendment clearly bars all claims against a State unless the State unequivocally consents, which the State of Oregon has not done for suits brought under § 1983. Therefore, the Eleventh Amendment bars plaintiffs' claims and plaintiffs cannot sue the State of Oregon as a defendant.
B. Specific Individuals Causing Harm
The two prior FRs also informed plaintiffs that they must name the specific individual officer(s) who have enforced the Oregon Vehicle Code against them in order to state a claim under 42 U.S.C. § 1983. Plaintiffs again have failed to do so and instead simply sue the State of Oregon which, as plaintiffs were previously advised, is prohibited by the Eleventh Amendment.
In order for plaintiffs to properly state a claim under 42 U.S.C. § 1983, they must name the specific state officials who unconstitutionally applied the alleged unconstitutional Oregon Vehicle Code against them. For example, in this case, appropriate defendants would be the police officers who issued the traffic citations to plaintiffs for violations of the Oregon Vehicle Code attached as Exhibits A1-A5 and B1-B3 to plaintiffs' prior motion.
III. Standing to Challenge the Oregon Vehicle Code
The two prior FRs also clearly informed plaintiffs that Article III of the United States Constitution requires that they must have standing to pursue their claims in this court and specifically informed plaintiffs that an amended complaint must allege which statute(s) in the Oregon Vehicle Code they intend to challenge. Plaintiffs also ignored this advice because the new Amended Complaint still fails to include any citation to any specific statute in the Oregon Vehicle Code. Once again, plaintiffs simply allege that enforcement of the Oregon Vehicle Code violates their due process rights and that the Supremacy Clause of the United States Constitution precludes the State of Oregon from infringing on their right to use the "highways."
Plaintiffs have not met the "injury in fact" requirement of standing to bring their claims. Plaintiffs must allege injury that they have suffered due to enforcement of a particular statute against them or an imminent threat that a particular statute will be enforced against them. The allegations in the new Amended Complaint fail to meet this test because plaintiffs have not indicated a particular statute they intend to challenge and have not alleged if and/or how every statute in the Oregon Vehicle Code has caused them harm. Presumably plaintiffs challenge these statutes that criminalize certain actions occurring on the highway for which the police have issued traffic citations to them. As previously advised, they must specifically allege which statutes in the Oregon Vehicle Code they intend to challenge. A broad challenge to the entire Oregon Vehicle Code, including sections which have not harmed plaintiffs, does not suffice.
RECOMMENDATION
For the reasons set forth above, the new Amended Complaint should be dismissed sua sponte with prejudice for failing to comply with this court's prior Orders and for failing state a claim upon which relief may be granted.
SCHEDULING ORDER
Objections to these Findings and Recommendation, if any, are due February 5, 2001. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than February 23, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.