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Chung v. PSRB Director

United States District Court, D. Oregon

July 28, 2014

ANDY CHUNG, Plaintiff,
v.
PSRB DIRECTOR, Defendant.

FINDINGS AND RECOMMENDATION

THOMAS M. COFFIN, Magistrate Judge.

Plaintiff's Application to Proceed in forma pauperis (#1) is allowed. However, for the reasons set forth below, this action should be dismissed sua sponte for lack of jurisdiction and failure to state a claim. 28 U.S.C. ยง 1915(e) (2); see also Sparling v. Hoffman Constr. Co. , 864 F.2d 635, 637 (9th Cir. 1988).

Plaintiff alleges "I was "attacked on 4/19/2014 by my roommate's boyfriend Tyson, because the PSRB allow Tyson to come to (Stepping Stones Group Home) as a regular visitor." Plaintiff alleges in Claim II and Claim III that he has been "punished" by the PSRB because of an alleged "threat" on his Facebook page about a "protest in demonstration" (sic).

Plaintiff alleges "federal question" jurisdiction based on "discrimination." Plaintiff does not name a specific individual defendant. The court assumes that plaintiff's reference to the "PSRB" intends to refer to the Oregon Psychiatric Security Review Board.

"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 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).

Pursuant to Fed.R.Civ.P. 8(a), a complaint shall include "(1) a short and plain statement of the grounds upon which the court's jurisdiction depends..., (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief the pleader seeks." "Each averment of a pleading shall be simple, concise and direct." Fed.R.Civ.P. 8(e).

A district court has the power to dismiss a complaint when a plaintiff fails to comply with Federal Rules of Civil Procedure 8 (a) and 8 (e). McHenry v. Renne , 84 F.3d 1172, 1179 (9th Cir. 1996); Nevijel v. North Coast Life Ins. Co. , 651 F.2d 671, 673 (9th Cir. 1981).

If the factual elements of a cause of action are scattered throughout the complaint but are not organized into a "short and plain statement of the claim, " dismissal for failure to satisfy Rule 8(a) is proper. Sparling v. Hoffman Constr. Co. , 864 F.2d 635, 640 (9th Cir. 1988); see also, Nevijel v. North Coast Life Ins. Co. , 651 F.2d 671, 674 (9th Cir. 1981).

In order to state a claim against a named defendant, plaintiff must allege specific facts about that defendant and identify how that defendant's conduct violated his rights. General allegations are insufficient. The absence of any factual allegations against a named defendant will entitle that defendant to have the complaint dismissed as to him, pursuant to Fed.R.Civ.P. 12(b). Polk v. Montgomery County , 548 F.Supp. 613, 614 (D.Md. 1982). See also, Morabito v. Blum , 528 F.Supp. 252, 262 (S.D. N.Y. 1981). Although pro se complaints are to be interpreted liberally, Haines v. Kerner , 92 S.Ct. 594 (1972), the court may not supply essential elements that are not pleaded. Ivey v. Board of Regents , 673 F.2d 266 (9th Cir. 1982).

I find that the complaint before the court does not meet the minimal pleading requirements of the federal rules. Assuming that the pleading deficiencies could be cured by amendment, plaintiff's allegations fail to state a claim for the reasons discussed below.

As noted above, plaintiff's allegations are apparently intended to allege a claim against the director of the Oregon Psychiatric Security Review Board. The Psychiatric Security Review Board ("PSRB") is an agency of the State of Oregon.

Eleventh Amendment Immunity: Eleventh Amendment immunity applies. A state or its officials or 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. 356 (2001); Seminole Tribe of Florida v. Florida , 517 U.S. 44, 54 (1996); 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 ...


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