United States District Court, D. Oregon, Medford Division
REPORT AND RECOMMENDATION
D. CLARKE UNITED STATES MAGISTRATE JUDGE.
Ernie Young seeks to proceed in forma pauperis
("IFP") in this action. He has also filed a motion
for appointment of counsel (#14). For the reasons stated
below, Plaintiffs [Fourth] Amended Complaint (#13) should be
dismissed with prejudice. The request to proceed IFP (#2) and
the motion for pro bono counsel (#14) should both be denied.
Plaintiff should not be given leave to file a fifth Amended
all parties instituting any civil action in United States
District Court must pay a statutory filing fee. 28 U.S.C.
§ 1914(a). However, the federal IFP statute, 28 U.S.C.
§ 1915(a)(1), provides indigent litigants an opportunity
for meaningful access to the federal courts despite their
inability to pay the costs and fees associated with that
access. To authorize a litigant to proceed IFP, a court must
make two determinations. First, a court must determine
whether the litigant is unable to pay the costs of commencing
the action. 28 U.S.C. § 1915(a)(1). Second, it must
assess whether the action is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B).
regard to the second of these determinations, district courts
have the power under 28 U.S.C. § 1915(e)(2)(B) to screen
complaints even before the service of the complaint on the
defendants, and must dismiss a complaint if it fails to state
a claim. Courts apply the same standard under 28 U.S.C.
§ 1915(e)(2)(B) as when addressing a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). Watison
v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To
survive a motion to dismiss under the federal pleading
standards, the complaint must include a short and plain
statement of the claim and "contain sufficient factual
matter, accepted as true, to "state a claim for relief
that is plausible on its face.'"' Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
All. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
"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. The plausibility standard . . . asks for
more than a sheer possibility that a defendant has acted
unlawfully." Id. The Court is not required to
accept legal conclusions, unsupported by alleged facts, as
pleadings are held to less stringent standards than pleadings
by attorneys. Haines v. Kerner, 404 U.S. 519,
520-521 (1972). That is, the court should construe pleadings
by pro se plaintiffs liberally and afford the plaintiffs the
benefits of any doubt. Karim-Panahi v. Los Angeles Police
Dept., 839 F.2d 621, 623 (9th Cir. 1988) (citation
omitted). Additionally, a pro se litigant is entitled to
notice of the deficiencies in the complaint and the
opportunity to amend, unless the complaint's deficiencies
cannot be cured by amendment. Id.
October 16, 2017, Plaintiff Ernie Young filed a Complaint
against six defendants, including a Jackson County Circuit
Court judge, Hon. Ronald Grensky, a Jackson County Deputy
District Attorney, Ben Lull, and three law enforcement
officers from the Eagle Point Police Department, and one
caseworker from Child Protective Services. The original
complaint was dismissed on October 30, 2018, and the Court
gave Plaintiff detailed notice of the deficiencies and
allowed him 30 days to file an Amended Complaint. Plaintiff
then proceeded to file several different versions of an
Amended Complaint (#5, 11, 12, 13). The Court assumes that
the most recently filed Amended Complaint (#13) is the one
Plaintiff wishes to be operative in this case.
Plaintiffs Amended Complaint should be dismissed due to the
Rooker-Feldman Doctrine and for
failure to state a claim.
most recent Amended Complaint (#13), the named defendants are
Child Protective Services ("CPS"); Carissa Jenkins
and Kirstin Stroud, caseworkers at CPS; Brandy Lynn Wedin,
the mother of Plaintiff s child; and Joseph Ballejos. As in
the original complaint, there are plenty of factual
allegations, though the specific claims against each
defendant are confusing and disjointed. However, it is clear
to the Court that Plaintiff is attempting to bring this case
because he believes custody of his son lias been wrongly
taken from him and given to Ms. Wedin, the mother of the
child. While the Court understands Plaintiffs frustration
with the caseworkers and the process, which may seem patently
unfair, the federal courts are courts of limited
jurisdiction. As discussed in the Court's previous Order,
Pursuant to the Rooker-Feldman doctrine, federal
courts lack subject matter jurisdiction "when the
federal plaintiff both asserts as her injury legal error or
errors by the state court and seeks as her remedy
relief from the state court judgment." Kongasian v.
TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004);
Cooper, 704 F.3d at 777-78. See also Meek v.
Zopan, 2017 WL 902864, at *3 (D. Or. Mar. 6, 2017).
discussed in the previous Court Order, if Plaintiff is
dissatisfied with the outcome of his child custody or child
welfare case in state court, he may not attempt to overturn
that outcome by challenging that case in federal court. In
order to challenge the outcome of a state court proceeding, a
person must appeal that state court judgment to the Oregon
Court of Appeals. Attempting to challenge it in federal court
is an improper collateral attack. Therefore, any claims
asserted by Plaintiff that arise out of a state court
proceeding and that attempt to overturn the outcome of that
proceeding cannot be allowed.
for example, Plaintiff alleges that on "November 2nd,
2017, the State of Oregon for the County of Jackson and Child
protective services filed a Dependency Petition to take
custody of Mr. Young's son [Z.Y.]." Plaintiff does
not indicate the outcome of that petition. or whether or not
the proceeding has ended or is on-going. Plaintiff also
states that defendant Kirstin Stroud gave testimony in the
Circuit Court of Jackson County on April 12, 2017, against
Mr. Young, which was "in False light the act of
Conspiracy and perjury to sway the [Court], to have Mr.
Young's son wrongfully removed from Mr. Young's Sole
Care and Home."
close reading of the entire Amended Complaint, the Court
cannot find any allegations that do not arise out of the
state court proceedings regarding custody of Plaintiff s son.
While the details are often confusing, it is clear that
Plaintiffs claims ultimately allege that the CPS caseworkers
wrongfully "interfered" with his relationship with
his son, and "'misrepresented" to the Jackson
County Circuit Court that they were concerned about his
parenting abilities. Plaintiff believes that they should have
been more concerned with hisMs. Wedin's parenting
abilities. He contends that Ms. Wedin was neglecting their
son's needs and wellbeing and possibly exposing him to
abuse by allowing contact with Mr. Ballejos. Plaintiff claims
that the CPS workers' views were prejudiced against him,
based on his diagnosis of "higher functioning
autism." Other than the negligent acts Plaintiff alleges
Ms. Wedin and Mr. Ballejos regarding their care of Plaintiff
s son, Plaintiff does not state any cognizable claims against
either named defendant. Ms. Wedin is named in conclusory
fashion on page 7, where Plaintiff requests relief "For
Defamation and Libel and Slander, " regarding
"Claim IV." "Claim IV, " however, asserts
claims arising out of testimony and proceedings that took
place in Jackson County Circuit Court regarding custody,
parenting time, and possible endangerment of Plaintiff s son.
in the Amended Complaint, the allegations appear to suggest
that the state court proceedings terminated unfavorably for
Plaintiff because of the above actions of the CPS workers and
their "false testimony" and "hearsay and
perjury." If that is the case, he must appeal that
judgment or judgments to the Oregon Court of Appeals. Because
Plaintiffs allegations do not state a claim for relief-
either due to the Rooker-Feldma ...