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Whirlwind v. Washington County Court

United States District Court, D. Oregon, Portland Division

November 16, 2018

LEEGABE LITTLE WHIRLWIND, Plaintiff,
v.
WASHINGTON COUNTY COURT, Defendant.

          Leegabe Little Whirlwind Pro se Plaintiff

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

         Leegabe Little Whirlwind brings this action against Washington County Court. On September 13, 2018 Plaintiff moved for the appointment of counsel, and on October 9, 2018 Plaintiff moved to proceed in forma pauperis. The Court finds that Plaintiff is unable to pay the filing fee and grants Plaintiff's motion to proceed in formal pauperis. However, the Court finds the appointment of counsel is not appropriate at this time, and that Plaintiff has failed to state a claim for relief. The Court therefore dismisses Plaintiff's Complaint.

         STANDARDS

         A court may dismiss a complaint filed in forma pauperis at any time, if the court determines that:

(B) the action or appeal-
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B). As the Ninth Circuit has instructed, however, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se complaint “must be held to less stringent standards than formal pleadings drafted by lawyers.” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). A pro se litigant will be given leave to amend his or her complaint unless it is clear that the deficiencies of the complaint cannot be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

         DISCUSSION

         Plaintiff alleges that Defendant Washington County Court improperly terminated his parental rights in violation of the Indian Child Welfare Act. Compl. at 4. Specifically, Plaintiff alleges that on October 31, 2014, Defendant violated 25 U.S.C. § 1912 by adjudicating his parental rights without proper notice to the Northern Cheyenne Tribe. Id. In support of his Complaint, Plaintiff attaches a Judgment/Referral form from the Washington County Circuit Court. This form, dated October 31, 2014, appears to impose probation conditions. These conditions stem from a jury trial in which Plaintiff was found guilty of two counts of assault in the fourth degree constituting domestic violence and one count of strangulation. Compl. at Ex. 1. The form orders Plaintiff to have no direct or indirect contact (without prior written permission from PO) with Joy De'Ann Allen. Id. Additionally, next to a box designated “other, ” there is a handwritten note that reads “contact with children with DHS.” Id. Plaintiff requests an order invalidating the Washington County Circuit Court order, as well as declaratory relief. Compl. at 2, 5.

         I. Indian Child Welfare Act

         The Indian Child Welfare Act (“ICWA” or “Act”) was enacted by Congress “to rectify state agency and court actions that resulted in the removal of Indian children from their Indian communities and heritage.” Doe v. Mann, 415 F.3d 1038, 1047 (9th Cir. 2005). The Act “sets minimum Federal standards for the removal of Indian Children from their families and the placement of such children in foster or adoptive homes . . . .” 25 U.S.C. § 1902. These minimum standards include, for example, specific notice requirements for “any involuntary proceeding in a State court, where the court knows or has ...


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