Numrich v. State of Oregon
Filing
26
Opinion and Order. The Court concludes Plaintiffs appeal of the Courts August 31, 2015, Order and Judgment is frivolous,and, therefore, Plaintiffs in forma pauperis status should not continue for Plaintiffs appeal. Signed on 10/07/2015 by Judge Anna J. Brown. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EDGAR T. NUMRICH,
Plaintiff,
v.
STATE OF OREGON,
Defendant.
EDGAR T. NUMRICH
P.O. Box 1381
Lake Oswego, OR 97035-0539
(503) 635-2599
Plaintiff, Pro Se
ELLEN ROSENBLUM
Attorney General
JUSTIN E. KIDD
Assistant Attorney General
1162 Court Street N.E.
Salem, OR 97301
(503) 947-4700
Attorneys for Defendant
1 - OPINION AND ORDER
3:15-CV-00183-JE
OPINION AND ORDER
BROWN, Judge.
This matter comes before the Court on the Ninth Circuit’s
Referral Notice, Case No. 15-35759, referring Plaintiff Edgar T.
Numrich’s appeal to this Court for the sole purpose of
determining whether Plaintiff’s “in forma pauperis status should
continue for [his] appeal or whether the appeal is frivolous or
taken in bad faith.”
The Court concludes Plaintiff’s in forma pauperis status
should not continue for appeal.
DISCUSSION
On June 17, 2015, Magistrate Judge John Jelderks issued
Findings and Recommendation in which he recommended the Court
grant Defendant State of Oregon’s Motion to Dismiss, deny as moot
Defendant’s Motion for More Definite Statement, and dismiss this
matter with prejudice on the ground that Plaintiff’s claims are
barred by the Eleventh Amendment to the United States
Constitution.
On August 31, 2015, the Court issued an Order adopting the
Findings and Recommendation, granting Defendant’s Motion to
Dismiss, denying as moot Defendant’s Motion for More Definite
Statement, and dismissing this matter with prejudice.
On
August 31, 2015, the Court also issued a Judgment dismissing this
matter with prejudice.
2 - OPINION AND ORDER
On September 28, 2015, Plaintiff filed a Notice of Appeal to
the Ninth Circuit.
On September 30, 2015, the Ninth Circuit, as noted, referred
Plaintiff’s appeal to this Court for the sole purpose of
determining whether Plaintiff’s “in forma pauperis status should
continue for [his] appeal or whether the appeal is frivolous or
taken in bad faith.”
In the June 17, 2015, Finding and Recommendation the
Magistrate Judge found Plaintiff’s claims were barred by the
Eleventh Amendment.
Absent waiver or consent by the State the
Eleventh Amendment bars suits in federal court against the State
or its agencies.
(1984).
Pennhurst v. Halderman, 465 U.S. 89, 100–101
Plaintiff did not establish the State of Oregon either
waived or consented to be sued in this matter.
In addition, the
Supreme Court has held a State is not a “person” subject to suit
under
42 U.S.C. §1983.
491 U.S. 58, 67 (1989).
Will v. Michigan Dep't of State Police,
Accordingly, Plaintiff's claims are
barred by the Eleventh Amendment.
CONCLUSION
For these reasons, the Court concludes Plaintiff’s appeal of
the Court’s August 31, 2015, Order and Judgment is frivolous,
and, therefore, Plaintiff’s in forma pauperis status should not
3 - OPINION AND ORDER
continue for Plaintiff’s appeal.
IT IS SO ORDERED.
DATED this 7th day of October, 2015.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
4 - OPINION AND ORDER
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