United States District Court, D. Oregon
Justine Hamburg Plaintiff Pro Se.
OPINION & ORDER
A. Hernandez, United States District Judge.
plaintiff Justine Hamburg filed this action in March 2018. In
an April 2, 2018 Opinion, I granted her request to proceed
in forma pauperis, dismissed her claims, and denied
her motion for appointment of counsel. ECF 6. The dismissal
as to any claims against "D.H.S. E. County," which
I construed to be the state Department of Human Services, was
with prejudice. Apr. 2, 2018 Op. at 5 (explaining that
Eleventh Amendment immunity barred any claims against the
state agency). The other claims, to the extent they could be
discerned, were dismissed without prejudice. Id. at
11. Plaintiff was given leave to file an amended complaint
within fourteen days. Id. She failed to do so. On
April 30, 2018, twenty-eight days after the April 2, 2018
Opinion was filed, I dismissed the case because Plaintiff had
failed to file an amended complaint. ECF 8. The case was
terminated at that time.
7, 2018, I received a letter from Plaintiff which I construed
as a motion to reopen the case, a motion for extension of
time to file an amended complaint, and a renewed motion to
appoint counsel. ECF 9. So construed, I granted the motion to
reopen and motion to extend time. Id. I denied the
motion for appointment of counsel. Id. I allowed
Plaintiff until June 8, 2018 to file an amended complaint.
11, 2018, Plaintiff filed an amended complaint. ECF 11. She
again names the Department of Human Services (DHS) as a
Defendant, despite any claims against it having already been
dismissed with prejudice. She also names the same three
individual Defendants she previously named and who are
discussed in the April 2, 2018 Opinion. See Am.
Compl. at p. 2-3 (naming DHS Case Manager David Udlock,
Deputy District Attorney Scott Harris, and Mary Cain
"child's lawyer."); see also Apr. 2,
2018 Op. at 2-3 (construing original Complaint as naming
these three individuals along with DHS).
April 2, 2018 Opinion, I explained that the claims were
unclear. Without repeating that discussion here, I noted that
Plaintiff appeared to raise freedom of speech and religion
claims under the First Amendment, a Sixth Amendment claim,
and a due process claim. Id. at 3. However, to the
extent the claims could be discerned, they could not survive
for several reasons: (1) they failed to comply with Federal
Rule of Civil Procedure 8 because she asserted conclusions
and did not assert sufficient factual matter to state a claim
for relief: (2) her federal constitutional claims appeared to
be time-barred; (3) it was unclear if her claims were based
on a violation of state law rather than federal
constitutional law; (4) allegations against Cain (which was
spelled "Kane" in the original Complaint), failed
to indicate that she acted under color of state law; (5) the
claim against Harris raised issues of prosecutorial immunity;
and (6) the Complaint alluded to a state custody proceeding
involving Plaintiff which raised abstention issues.
Id. at 3-9.
Amended Complaint fails to cure these defects. Plaintiff
attaches a two-page handwritten narrative to the form Amended
Complaint. There, although it is not entirely clear, she
appears to assert that as part of a termination of parental
rights proceeding, Udlock "illegally obtained &
harbored information about how they came up with a story
about" Plaintiff's mental health. Am. Compl.
attachmt. at 1. The assertions are hard to follow but she
refers to a meth cook coming to trial and calling her crazy
for talking to her son about the Bible in "Romas."
Id. She indicates that her freedom of speech was
violated because she tried to complain about "the
injustices" which were occurring but "they"
said she was having a crisis. Id. at 2.
"They" made her feel so fearful and oppressed that
she could not speak. Id.
allegations fail to state a claim. They fail to name any
Defendant other than Udlock. They fail to identify what role
he played in what proceeding or when. They fail to address
the pleading defects thoroughly discussed in the April 2,
2018 Opinion. As a result, the Amended Complaint is properly
dismissed under 28 U.S.C. § 1915 for failure to state a
previously gave Plaintiff leave to amend which she initially
failed to do. I then reopened the case at her request and
gave her an additional month in which to file an amended
complaint. Yet, she failed to follow specific instructions on
how to amend her complaint and her current attempt to state a
claim suffers from the same or similar defects as the
original Complaint. Under these circumstances, it is
appropriate to deny her any further opportunity to amend.
See Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133
(9th Cir. 2013) (district court did not abuse discretion in
denying leave to amend when the plaintiffs had "ample
opportunity to properly plead a case and have failed to do
so" and the plaintiffs previously failed to follow
specific instructions from the court on how to amend the
Amended Complaint  is ...