United States District Court, D. Oregon, Medford Division
OPINION & ORDER
MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE.
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.
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).
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
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.
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
purposes of this federal action, Nebmaier asserts a claim
under 7 U.S.C. § 301, part of the Morrill Act of 1862,
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.
U.S.C. § 301.
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).
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
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 ...