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Nebmaier v. Josephine County

United States District Court, D. Oregon, Medford Division

July 27, 2018


          OPINION & ORDER


         This matter comes before the Court on Plaintiff Wolfgang Nebmaier's Application for Leave to Proceed in forma pauperis (“IFP”), ECF No. 2. For the reasons discussed below, Plaintiff's IFP petition is GRANTED, but the Complaint, ECF No. 1, is DISMISSED with prejudice and without service upon Defendant Josephine County.


         Generally, 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 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 to such relief. 28 U.S.C. § 1915(e)(2)(B).

         In 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 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 Atl. 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 true. Id.

         Pro se pleadings are held to less stringent standards than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). That is, the court should construe pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). 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.


         Plaintiff Nebmaier lives near the proposed site of a gravel pit. Nebmaier is opposed to the development of the gravel pit, which he believes will cause disruptive traffic and noise, as well as air and water pollution. Nebmaier unsuccessfully objected to the development of the gravel pit when the issue was under consideration with the Josephine County Board of Commissioners and Nebmaier alleges that the Oregon Land Use Board of Appeals (“LUBA”) has affirmed the County's decision to permit development of the gravel pit.

         For purposes of this federal action, Nebmaier asserts a claim under 7 U.S.C. § 301, part of the Morrill Act of 1862, [1] which provides:

There is granted to the several States, for the purposes hereinafter mentioned in this subchapter, an amount of public land, to be apportioned to each State a quantity equal to thirty thousand acres for each Senator and Representative in Congress to which the States are respectively entitled by the apportionment under the census of 1860: Provided, That no mineral lands shall be selected or purchased under the provisions of said sections.

         7 U.S.C. § 301.

         Lands granted through the 1862 Morrill Act were to be surveyed and sold and the proceeds used to support the establishment and maintenance of state colleges and universities “for the benefit of agriculture and the mechanic arts.” 7 U.S.C. §§ 302, 304; McNee v. Donahue, 142 U.S. 587, 590 (1892).

         Nebmaier asserts that the land on which the proposed gravel pit is to be situated was originally sold as part of the land grant process under the 1862 Morrill Act and that the prohibition against mineral lands being selected or purchased in the granting process operates prospectively by forbidding any subsequent mineral extraction by the private purchasers of the land. Nebmaier seeks declaratory and injunctive relief preventing the property at issue from being developed as a gravel pit.

         Nebmaier may only bring suit if Congress has provided a private right of action by which an individual may seek to enforce these statutory provisions. “Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). “The ability to bring a private right of action may be authorized by the explicit statutory text or, in some ...

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