Bromfield v. State of Oregon Department of Revenue

Filing 5

Order to Dismiss. Signed on 05/02/2016 by Judge Anna J. Brown. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAMION BROMFIELD,
Case No. 3:16-cv-00509-BR
Plaintiff,
ORDER TO DISMISS

v.
STATE OF OREGON, DEPARTMENT
OF REVENUE
Defendant.
BROWN, Judge.
Plaintiff brings this civil action pro se.

Pursuant to an

order entered by the Court this date, Plaintiff was granted leave
to proceed in forma pauperis.

However, for the reasons set forth

below, Plaintiff's Complaint is dismissed.
BACKGROUND

Plaintiff alleges that Defendant State of Oregon, Department
of Revenue breached a installment contract for the pctyment of a
parking

citation.

contract payments,

Plaintiff

alleges

that

despite

his

timely

Defendant illegally and wrongfully garnished

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moneys from Plaintiff's bank account.

By way of remedy, Plaintiff

seeks money damages.
STANDARDS

Where
pauperis,

a

a

party

is

granted

leave

to

proceed

in

forma

the court shall dismiss the case at any time if the

court determines that:
(B)

the action .
(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).
Before dismissing a pro se civil complaint for failure to
state a claim, this Court supplies the plaintiff with a statement
of the complaint's
Police Dept.,
Block,

deficiencies.

839 F.2d 621,

832 F.2d 1132,

1136

623-24

Karim-Panahi

v.

Los Angeles

(9th Cir. 1988); Eldridge v.

(9th Cir.

1987).

A pro se litigant

will be given leave to amend his or her complaint unless it is
absolutely clear that the deficiencies of the complaint cannot be
cured by amendment.

Karim-Panahi,

839

F.2d at

Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).

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623;

Lopez v.

DISCUSSION
I.

Subject Matter Jurisdiction

A federal court is a court of limited jurisdiction, and may
adjudicate only those cases authorized by the Constitution and by

Kokkonen v. Guardian Life Ins.

Congress.
(1994).
time

Co.,

511 U.S. 375, 377

Lack of subject matter jurisdiction may be raised at any

by

either

party

or

by

the

Videotape Computer Products, Inc.,

court.

Attorneys

93 F.3d 593, 594-95

Trust

v.

(9th Cir.

1996).
The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 &
1332,

confer

respectively.

"federal

question"

and

"diversity"

jurisdiction,

Statutes which regulate specific subject matter may

also confer federal jurisdiction.

See generally, W.W. Schwarzer,

A.W. Tashima & J. Wagstaffe, Federal Civil Procedure Before Trial
§

2:5.

Unless a complaint presents a plausible assertion of a

substantial
jurisdiction.

federal

right,

a

federal

court

does

Bell v. Hood, 327 U.S. 678, 682 (1945).

not

have

A federal

claim which is so insubstantial as to be patently without merit
cannot serve as the basis for federal

jurisdiction.

Hagans v.

Lavine, 415 U.S. 528, 587-38 (1974).
Plaintiff's Complaint makes no reference to federal law and
is not based on diversity jurisdiction; it raises only a state law

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claim of

breach

of

Accordingly,

contract.

this

Court

lacks

jurisdiction and the Complaint must be dismissed.
II.

Sovereign Immunity

The Eleventh Amendment bars suits in federal court brought by
a citizen against the state,

its agencies,
Pennhurst

without the state's consent.

465 U.S. 89, 100 (1984)

Halderman,

or its departments,

State Sch.

&

(citations omitted).

Hosp.

v.

"A State

may effectuate a waiver of its constitutional immunity by a state
statute or constitutional provision, or by otherwise waiving its
immunity to suit in the context of a particular federal program."
Atascadero State Hosp. v. Scanlon,

473 U.S. 234, 238 n.1 (1985),

superceded by statute on other grounds as recognized in Cousins v.
Dole, 674 F.Supp. 360, 362 n.6 (D. Me. 1987).

is made,

However the waiver

it must be an ''unequivocal indication that the State

intends to consent to fedreal jurisdiction."

Id.

A general ''sue and be sued'' clause is not sufficient to waive
sovereign

immunity to

suits

in federal

Lumber Co. v. Columbia River Gorge Comm'n,

Cir.

1992)

("[a] lthough

the

Compact

court.

See

Broughton

975 F.2d 616, 619 (9th
contains

a

provision

empowering the Commission to 'sue and be sued,' the Commission has
not explicitly waived its sovereign immunity to suits in federal
courts"), cert. denied, 510 U.S. 813 (1993).

Likewise, a state's

waiver of sovereign immunity in its own courts is not a waiver of

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the

Eleventh

Amendment

immunity

to

suit

in

federal

court.

Pennhurst, 465 U.S. at 99 n.9 (citing Fla. Dep't of Health v. Fla.
Nursing Home Ass'n, 450 U.S. 147, 150 (1981)

(per curiam)).

Oregon law contains a general waiver of common law immunity,
providing that "[a] suit or action may be maintained against
the State of Oregon by and through and in the name of the
. such agency

appropriate state agency upon a contract made by
and within the scope of its authority.''

Or. Rev. Stat.

§

30.320.

However, Oregon did not unequivocally consent to suit in federal
court when it enacted Or.

Rev.

Stat.

§

30.320.

Drollinger v.

Gerber, Case No. 3:09-cv-00134-AC, 2011 WL 7154483 at *5 (D. Or.

Sept. 12, 2011)

(citing Olson v. Oregon University System ex rel.

Pernsteiner, Case No. 3:09-cv-00167-MO, 2009 WL 1270293 at *6 (D.

Or. May 6, 2009)),

report and recommendation adopted by 2012 WL

381215 (D. Or. Feb. 6, 2012).

Consequently, even if Plaintiff's

Complaint established subject matter jurisdiction in this Court,
Plaintiff cannot state a claim for damages against the State of
Oregon Department of Revenue upon which relief may be granted.
CONCLUSION

Based

on

the

foregoing,

IT

IS

ORDERED

that

Plaintiff's

Complaint is DISMISSED for failure to state a claim upon which

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relief may be granted.

Because it is clear that the deficiencies

of the Complaint cannot be cured by amendment,

the dismissal is

with prejudice.
IT IS SO ORDERED.
DATED this

~Vil day of

A/l1t"rr~
Ap141,

2016.

ANNA J. BRO.
United States District Judge

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