Shorb et al v. Baker et al
OPINION & ORDER: Granting Motion to Dismiss for Failure to State a Claim 14 ; Granting Motion to Dismiss Case for Lack of Jurisdiction 14 . Signed on 10/11/2017 by Judge Ann L. Aiken. A copy of this Opinion & Order was mailed to pro se plaintiff Charles Ray Shorb. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHARLES RAY SHORB,
Civ. No. I :17-cv-00449-AA
OPINION & ORDER
JOSEPHINE COUNTY CIRCUIT
COURT; LINDI BAKER; MICHAEL
NEWMAN; RYAN A. MULKINS,
AIKEN, District Judge.
This matter comes before the Court on Defendants' Motion to Dismiss the Amended
Complaint. ECF No. 14. Plaintiff has not responded to the motion and the time for doing so has
passed. For the reasons set forth below, the motion is GRANTED and this case is DISMISSED
The Amended Complaint, which is styled "Amended Bill in Equity in Exclusive Equity,"
ECF No. 6, is disjointed and difficult to read. It is, for the most pati, an incomprehensible
gibberish of misapplied legal and quasi-legal terms. To the extent that the Amended Complaint
can be understood, it appears to bring some smi of common law civil and/or equity action related
to Plaintiff Charles Shorb's criminal conviction in Oregon state couti.
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In 2008, Shorb was convicted of Rape in the First Degree and Sexual Abuse in the First
Degree following a jury trial in Josephine County Circuit Court. Shorb is currently in the
custody of the Oregon Depattment of Corrections and is proceeding pro se. Shorb brings this
action against the Josephine County Circuit Court, two state comt judges, and the Josephine
County District Attorney, apparently for acts taken in the course of Shorb' s criminal prosecution.
Shorb has previously filed a petition for habeas corpus, which was denied in February
2017. Shorb v. Nooth, 2:14-cv-02005-SB, 2017 WL 465469 (D. Or. Feb. 2, 2017). That matter
is currently on appeal in Shorb v. Nooth, Ninth Circuit Case No. 17-35102.
Where a plaintiff "fail[s] to state a claim upon which relief can be granted," the comt
must dismiss the action. Fed. R. Civ. P. 12(b)(6). In order to state a viable claim, a plaintiff
must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). This
means a complaint must contain "factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678
(internal quotation marks and citation omitted). The complaint must contain "well-pleaded
facts" which "permit the court to infer more than the mere possibility of misconduct." Id at 679.
For purposes of a motion to dismiss, the complaint is liberally construed in favor of the
plaintiff and its allegations taken as trne. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983).
Bare assertions, however, that amount to nothing more than a "formulaic recitation of the
elements" of a claim "are conclusory and not entitled to be assumed true." Iqbal, 556 U.S. at
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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 prose
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
Defendants move to dismiss this case with prejudice on the grounds that (1) this Court
lacks jurisdiction over Shorb's claims; (2) Josephine County Circuit Court is entitled to
sovereign immunity under the Eleventh Amendment; (3) the individual Defendants are entitled
to judicial or prosecutorial immunity for acts taken in the course of Shorb's criminal prosecution;
(4) Shorb has failed to state a claim against Defendants; (5) Defendants are entitled to qualified
immunity; and (6) Shorb has failed to properly serve Defendants.
As a preliminary matter, Defendants have requested that the Court take judicial notice of
the docket sheet for Shorb's underlying criminal conviction in Josephine County Circuit Comi,
State v. Shorb, Case No. 05CR0974, which is attached to Defendants' Motion to Dismiss as
Exhibit 1. Although district comis may not consider any material beyond the pleadings in ruling
on a Rule 12(b)(6) motion, they may take judicial notice of documents referenced in the
complaint, pleadings from other relevant proceedings, as well as matters in the public record,
without conve1iing a motion to dismiss into one for summary judgment. Intri-Plex Techs., Inc. v.
Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). The Ninth Circuit has "extended the
doctrine of incorporation by reference to consider documents in situations where the complaint
necessarily relies upon a document or the contents of the document are alleged in a complaint,
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the document's authenticity is not in question and there are no disputed issues as to the
document's relevance." Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); see
also Fed. R. Evid. 201.
In this case, the docket sheet for State v. Shorb is a matter of public record and it is
necessarily relied upon by the Amended Complaint. Shorb has not objected to Defendants'
request for judicial notice, or otherwise responded to Defendants' motion, and the time for doing
so has now passed. The Court therefore GRANTS Defendants' request for judicial notice of
Defendants' Exhibit 1.
Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). Unlike state courts, which are courts of general jurisdiction,
federal courts may only exercise jurisdiction in certain kinds of cases as authorized by the United
States Constitution and Congress. United States v. Jacobo Castillo, 496 F.3d 947, 951 (9th Cir.
2007) (en bane).
As such, a court is to presume "that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests upon the paiiy asse1ting
Kokkonen, 511 U.S. at 377 (internal citation omitted).
Federal comis have
jurisdiction over two primary categories of cases: (1) those based on federal law (federal
question jurisdiction); and (2) those involving citizens of different states where more than
$75,000 is at issue (diversity jurisdiction). See 28 U.S.C. §§ 1331-32.
Diversity jurisdiction requires that the plaintiff and defendant be "citizens of different
states." 28 U.S.C. § 1332(a)(l). The plaintiff has the burden of showing diversity of citizenship.
Kanter v. Warner-Lambert Co., 265 F.3d 853, 857-58 (9th Cir. 2001). An objection that a
paiticular comi lacks subject matter jurisdiction may be raised by any party, or by the comi on its
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own initiative, at any time. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006); Fed. R. Civ. P.
12(b)(1 ). The court must dismiss any case over which it lacks subject matter jurisdiction. Fed.
R. Civ. P. 12(h)(3).
In this case, there is no diversity of citizenship as all parties are citizens of Oregon or, in
the case of the Josephine County Circuit Comi, an Oregon state court. Shorb also appears to
disclaim federal question jurisdiction based on 42 U.S.C. § 1983 and other civil rights statutes.
See Am. Comp!. 2 ("This complaint does not fit within the scope of the DISTRICT COURT's
form for civil rights violations as the Complainant is not a statutory citizen, and I am not
claiming jurisdiction under said statutes.
I require exclusive equity.").
As the basis for
jurisdiction, Shorb states that this court "has original jurisdiction of civil cases arising in equity"
under the Constitution. Am. Comp!. 2. In this case, in the absence of diversity and in light of
Shorb's explicit rejection of federal question jurisdiction based upon civil rights statutes, this
Comi must conclude that it lacks subject matter jurisdiction over this action.
Motion to Dismiss is therefore GRANTED. In an abundance of caution, however, the Court will
address the other matters raised by Defendants in their Motion to Dismiss.
The Eleventh Amendment provides that a state is immune from suit in federal court
unless Congress has abrogated the state's immunity by appropriate federal legislation or the state
itself has waived it. Va. Office for Prof. & Advocacy v. Stewart, 563 U.S. 247, 253-54 (2011). It
is similarly well settled that a state agency is entitled to sovereign immunity from suit. P. R.
Aqueduct & Sewer Auth. v. Metcalf, 506 U.S. 139, 144 (1993). This immunity also extends to
the circuit courts of the State of Oregon. Butler v. Forest Grove Police Dep 't, No. 3: l 6-cv-2403SI, 2017 WL 57129, at *4 (D. Or. Jan. 4, 2017). Congress has not abrogated state sovereign
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immunity in 42 U.S.C. § 1983. See Braunstein v. Ariz. Dep't o/Transp., 683 F.3d 1177, 1188
(9th Cir. 2012).
In this case, Defendant Josephine County Circuit Coutt is an Oregon state comt and is
entitled to the protection of sovereign immunity.
Shorb does not identify any waiver or
abrogation of Oregon's sovereign immunity with respect to his claims. All claims against the
Josephine County Circuit Court are therefore dismissed. As this defect cannot be remedied by
amendment, dismissal is with prejudice.
Lindi Baker and Michael Newman are judges in the Josephine County Circuit Coutt and
Defendants assert that they entitled to judicial immunity. Judges are absolutely immune from
liability for damages caused by judicial acts performed in their judicial capacity. Ashelman v.
Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en bane). To qualify for judicial immunity, a judge
must have performed a ''.judicial act" which was within the scope of his or her jurisdiction.
Stump v. Sparkman, 435 U.S. 349, 355-57 (1978). An act is judicial in nature if it is a function
normally performed by a judge and the parties to the act were dealing with the judge in her
judicial capacity. Id. at 362. A judge does not forfeit judicial immunity because his or her action
was in error, was done maliciously, or was in excess of the judge's authority. Id. at 356. The
scope of a judge's jurisdiction must be broadly construed. Id.
In this case, the Amended Complaint alleges that Judge Baker and Judge Newman
somehow wronged Shorb in the course of his criminal prosecution before the state court. Shorb
alleges that the judges are not entitled to judicial immunity because they were acting in a
"ministerial" capacity and "enforcing statutes." Am. Comp!. 4. The Court concludes that, on the
face of the Amended Complaint, the challenged acts were taken in the Defendants' judicial
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capacity. Judges Baker and Newman are entitled to judicial immunity. The Comt notes that
Shorb's claims against the judicial Defendants are also frivolous. Accordingly all claims against
Judge Baker and Judge Newman are dismissed.
As this defect cannot be remedied by
amendment, dismissal is with prejudice.
Defendants assert that Defendant Ryan Mulkins, the Josephine County District Attorney,
is entitled to prosecutorial immunity. The Supreme Court takes a "functional approach" to
absolute immunity. Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999). To determine its
applicability, the Coutt looks to the nature of the function performed, not the identity of the actor
who performed it. Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). A prosecutor is entitled to
absolute immunity for conduct "intimately associated with the judicial phase of the criminal
Imbler v. Pachtman, 424 U.S. 409, 429-30 (1976).
Such conduct includes the
initiation of prosecution, the preparation and filing of an arrest warrant, the appearance at a
probable cause hearing to support a search wairnnt application, and the presentation of the state's
case. Ewing v. City of Stockton, 588 F.3d 1218, 1232-33 (9th Cir. 2009). Absolute immunity
does not attach to administrative or investigatory acts by prosecutors unrelated to preparation for
and initiation of prosecution. Romano, 169 F.3d at 1186; Van de Kamp v. Goldstein, 555 U.S.
335, 342 (2009). Thus, whether Mulkins is entitled absolute immunity turns on whether his
allegedly unconstitutional act was prosecutorial in nature.
In this case, Mulkins is the Josephine County District Attorney and was one of the
attorneys who prosecuted Shorb in his criminal trial. Although the Amended Complaint is
difficult to parse, it is clear that Shorb is challenging Mulkins's decision to name Shorb as a
defendant in the underlying action, as well as Mulkins's presentation of the state's case. These
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acts were clearly part of the judicial phase of the underlying case. Accordingly, Mulkins is
entitled to prosecutorial immunity and all claims against Mulkins are dismissed with prejudice.
Failure to State a Claim
To the extent that the Amended Complaint is comprehensible, Shorb appears to claim
that (I) the laws of Oregon do not apply to him because he did not enter into a contract with the
State of Oregon; (2) the Josephine County Circuit Comt lacked subject matter jurisdiction over
Oregon's criminal statutes; (3) he was subject to "military process,"; (4) the state and federal
governments, as well as the comts and district attorneys, are private corporations with no lawful
authority over him; (5) the judge "failed to subrogate the Complaint/Surety and exonerate him";
(6) the Defendants "are not in possession of the required Notice of Taxable Termination from the
U.S Treasury, which is required to authorize the plundering of the decedent's legal estate as an
enemy belligerent,"; (7) the individual Defendants breached a "fiduciary duty to settle a debt and
release the Surety," 1 when they presided over Shorb's conviction; and (8) the true defendant in
the underlying case was not Shorb, but a "fictive nom de guerre (all capitalized name of war)"
created by the government. Am. Comp!. 4-9.
As a preliminary matter, Shorb was not subjected to "military process."
convicted in Josephine County Circuit Comt, following a jury trial and is incarcerated at an
Oregon state prison.
Def. Mot. Ex. 1, at 9.
Nor did the state court lack subject matter
jurisdiction to tly or convict Shorb. Josephine County Circuit Court is a valid Oregon state
court, constituting Oregon's 14th Judicial District.
It has subject matter
jurisdiction over all actions, unless specifically divested of jurisdiction. Or. Const., Art VII
(Original), § 9 ("All judicial power, authority, and jurisdiction not vested by this Constitution, or
From context, it appears that "the Surety" and "the Complainant" are meant to refer to Shorb himself. See, e.g.,
Am. Comp!. 9-10.
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by laws consistent therewith, exclusively in some other Court shall belong to the Circuit Comts,
and they shall have appellate jurisdiction, and supervisory control over the County Courts, and
all other inferior Courts, Officers, and tribunals."); Or. Const., Att. VII (Amended), § 2 ("The
courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this
amendment, shall remain as at present constituted until otherwise provided by law."); Specialty
Risk Serv. v. Royal Indem. Co., 213 Or. App. 620, 624-25 (2007). The jurisdiction of Oregon's
circuit courts extends to felony prosecutions. Or. Const. Att. VII (Amended), § 5 (describing the
means by which a person may be charged with a felony in an Oregon circuit court); State v.
Caldwell, 187 Or. App. 720, 723-24 (2003).
To the extent that Shorb challenges the fact or duration of his confinement, the exclusive
vehicle for such claims is a petition for habeas corpus. Nettles v. Grounds, 830 F.3d 922, 927
(9th Cir. 2016) (en bane). Similarly, to the extent that Shorb seeks recover damages for an
allegedly unconstitutional confinement, he must show that his conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such a determination, or called into question by a federal coutt's issuance of
a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 487 (1994). Shorb has not made such
a showing, nor is he able to do so as the denial of his habeas petition is currently on appeal to the
Shorb's other claims are patently frivolous. They lack any legitimate or comprehensible
factual basis or legal grounding to state a claim upon which relief might be granted. This
supplies an independent basis for granting Defendants' motion.
Although pro se plaintiffs are normally given leave to amend, comts may dismiss with
prejudice if the pleading could not be cured by the allegation of additional facts. Lopez v. Smith,
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203 F.3d 1122, 1130 (9th Cir. 2000). As the Comt has determined that Shorb has failed to state
a claim and that the Defendants are entitled to absolute immunity, it is not necessary to address
the issues of qualified immunity or improper service.
Defendants' Motion to Dismiss is GRANTED. ECF No. 14. This case is DISMISSED
with prejudice and final judgment shall be entered.
It is so ORDERED and DATED this _ _ _ _ _ day of October, 2017.
United States District Judge
Page JO-OPINION & ORDER
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