Newell et al v. Circuit Court for Washington County et al

Filing 23

ORDER TO DISMISS. IT IS ORDERED that Plaintiff's Complaint is DISMISSED. Because it is apparent that the deficiencies of Plaintiff's Complaint cannot be cured by amendment, the dismissal is WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiff's Motion for Appointment of Counsel (ECF No. 5 ) is DENIED, as the Court finds no extraordinary circumstances. Plaintiff's remaining motions (ECF Nos. 4 , 8 , 9 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , and 21 ) are found MOOT. Signed on 5/16/17 by Judge Anna J. Brown. See attached 7 page order. (jy)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MARY MARCH NEWELL, and DANIELLE MARIE NEWELL, Case No. 3:17-cv-00389-BR Plaintiffs, ORDER TO DISMISS v. CIRCUIT COURT FOR WASHINGTON COUNTY, OHS - Child Welfare; MATHEW AUSTIN NEWELL, Foster Parent; ALANNA LUNDIN, Foster Parent; OHS CHILD WELFARE; CITIZEN REVIEW BOARD; and L.E.A., Local Enforcement Agency, Defendants. BROWN, Judge. Plaintiff Mary Newell brings this civil action pro se. Pursuant to an Order entered by the Court this date, Plaintiff was granted leave to proceed in forma pauper is. However, for reasons set forth below, Plaintiff's Complaint is dismissed. 1 - ORDER TO DISMISS - the BACKGROUND Plaintiff initiated this action by filing a 127-page document titled "Complaint for a Civil Case," to which Plaintiff attached Petitions for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, Petitions for Writ of Mandate, and numerous exhibits (ECF No. 2) . 1 Plaintiff simultaneously filed a 211-page document titled "Petition for Writ of Mandate Vacating Jurisdiction and Judgments of Lower Court Censuring the Juvenile Court and DHS'' (ECF No. 3). Plaintiff has subsequently filed fourteen additional documents, many of some length, including motions, a 350-page Amended Complaint, additional Petitions for Writ "Injunctions." of Habeas Corpus, (ECF Nos. 4, 5, 8, "Expedited Mandates," and 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21). 2 The gravamen of Plaintiff's claims throughout all of her numerous filings can be narrowed to one primary issue, the removal of Plaintiff's minor son from Plaintiff's custody. By way of remedy, Plaintiff apparently seeks restoration of custody over her 'Plaintiff purports to bring this action on behalf of herself and her daughter, Daniel Marie Newell. A non-lawyer, however, may not file papers with the court or otherwise represent the rights of another pro se litigant. See Storseth v. Spellman, 654 F.2d 1349, 1355 (9th Cir. 1981); C.E. Pope Equity Trust v. United States, 818 F.2d 696 (9th Cir. 1987). 2 To date, Plaintiff has submitted a total of some 1,471 pages of documents to the Court. 2 - ORDER TO DISMISS - son, as well as criminal charges against the various named Defendants, and money damages. STANDARDS Where a person is granted leave to proceed in forma pauperis, 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. In § 1915(e) (2). order to state a claim, contain sufficient factual a plaintiff's allegations which, complaint must when accepted as true, give rise to a plausible inference that Defendants violated Plaintiff's rights. Bell Atlantic Corp. Ashcroft v. Iqbal, 556 U.S. 662, 678 v. Twombly, 550 U.S. 554, 556-57 (2009); (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." U.S. at 678; Moss v. U.S. Secret Service, Iqbal, 572 F.3d 962, 969 556 (9th Cir. 2009). As the Ninth Circuit has instructed however, "continue to construe prose filings liberally." 3 - ORDER TO DISMISS - courts must Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). prisoner] A "complaint [filed by a prose 'must be held to less stringent standards than formal pleadings drafted by lawyers. '" 551 U.S. 89, 94 (2007) Id. (quoting Erickson v. Pardus, (per curiam)). Before dismissing a pro se complaint for failure to state a claim, this Court supplies the plaintiff with a statement of the complaint's Karim-Panahi deficiencies. v. Los Angeles Police Dept., 839 F.2d 621, 623-24 (9th Cir. 1988); Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se litigant will be given leave to amend his or her complaint unless it is absolutely clear that the amendment. deficiencies of the complaint cannot be cured by Karim-Panahi, 839 F.2d at 623; Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). DISCUSSION I. Plaintiff's Complaint Fails to Comply with Fed. R. Civ. P. 8 Pursuant to Rule 8(a) of the Federal Rules of Civil Procedure a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Federal Rules adopt a flexible pleading policy, Al though the a complaint must ''give fair notice and state the elements of the claim plainly and succinctly." Jones v. Community Redev. Agency of the City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (citation omitted). Plaintiff's Complaint is neither short nor plain. it is comprised of an initial 4 - ORDER TO DISMISS - "Complaint," with 211 As noted, pages of attachments exhibits. II. including Petitions for Writ of Habeas Corpus and Plaintiff's Complaint does not comply with Rule 8. Plaintiff Has Not Pled a Cognizable Federal Claim Federal courts have no power to consider claims over which they lack subject-matter jurisdiction. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Subject matter jurisdiction is determined and must exist at the time the complaint is filed. See Morongo Equalization, Band 858 of Mission F.2d 1376, Indians 1380 v. Cal. (9th Cir. original complaint and not amended complaint, jurisdiction). allege facts State 1988) Bd. of (looking to for subject matter Moreover, the burden is on the federal plaintiff to establishing jurisdiction, and the court has an independent duty to consider its own subject-matter jurisdiction, whether or not the issue is raised by the parties. Civ. P. 12 (h) (3); see also Cal. See Fed. Diversified Promotions, Inc. R. v. Musick, 505 F.2d 278, 280 (9th Cir. 1974). It is inappropriate for a federal court to interfere with a family law matter pending in state court. F.2d 236, 237 (9th Cir. 1987) See Coats v. Woods, 819 (no abuse of discretion in district court's abstention from hearing§ 1983 claims arising from a child custody dispute pending in state court). Disputes regarding child custody and visitation are domestic relations matters traditionally within the domain of the state courts, and it is appropriate for federal district courts to 5 - ORDER TO DISMISS - abstain from hearing such cases, especially when there are 819 F. 2d at 237. Coats, ongoing state judicial proceedings. If the state court proceedings are no longer ongoing, but have resolved adversely to a plaintiff, there is still no federal jurisdiction which would permit this court to interfere. Any allegations of errors in the state court are barred, because a federal district court does not have jurisdiction to review legal errors in state court decisions. Court of Appeals v. Feldman, 460 U.S. 462, Dist. of Columbia 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923). Based on the Complaint and its attachments, without jurisdiction custody matter is to act ongoing either in state because court this Court is Plaintiff's and is child barred by abstention principles, or because Plaintiff seeks to appeal a state court decision and is barred by the Rooker-Feldman doctrine. 3 Although the Court would ordinarily grant a pro se plaintiff leave to amend, it does not appear that the above-mentioned defects can be cured by revision of Plaintiff's claims. Accordingly, leave to amend would be futile and this action is dismissed with prejudice. 3 To the extent Plaintiff's Complaint is construed as an attempt to seek habeas corpus relief pursuant to 28 U.S.C. § 2254, this Court likewise lacks jurisdiction as such an application may be entertained only "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that [she] is in custody in violation of the Constitution or laws or treaties of the United States." 6 - ORDER TO DISMISS - CONCLUSION Based Complaint on is the foregoing, DISMISSED. IT IS Because ORDERED it is that apparent Plaintiff's that the deficiencies of Plaintiff's Complaint cannot be cured by amendment, the dismissal is WITH PREJUDICE. IT IS FURTHER ORDERED that Plaintiff's Motion for Appointment of Counsel (ECF No. 5) is extraordinary circumstances. DENIED, as the Court finds Plaintiff's remaining motions no (ECF Nos. 4, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21) are found MOOT. IT IS SO ORDERED. :1Yt. DATED this /ffe day of May, 2017. United States District Judge 7 - ORDER TO DISMISS -

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