Newell et al v. Circuit Court for Washington County et al
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)
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
ORDER TO DISMISS
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
Pursuant to an Order entered by the Court this date, Plaintiff was
granted leave to proceed in
forma pauper is.
reasons set forth below, Plaintiff's Complaint is dismissed.
1 - ORDER TO DISMISS -
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.
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).
has subsequently filed fourteen additional documents, many of some
length, including motions, a 350-page Amended Complaint, additional
Petitions for Writ
of Habeas Corpus,
(ECF Nos. 4, 5, 8,
9, 10, 11, 12, 13, 14, 15, 16,
17, 18, 19, 20, 21). 2
numerous filings can be narrowed to one primary issue, the removal
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).
To date, Plaintiff has submitted a total of some 1,471 pages
of documents to the Court.
2 - ORDER TO DISMISS -
Defendants, and money damages.
Where a person is granted leave to proceed in forma pauperis,
is frivolous or malicious;
(ii) fails to state a claim on which relief may be
seeks monetary relief against a defendant
who is immune from such relief.
contain sufficient factual
when accepted as
true, give rise to a plausible inference that Defendants violated
Bell Atlantic Corp.
Ashcroft v. Iqbal, 556 U.S. 662, 678
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.
572 F.3d 962,
"continue to construe prose filings liberally."
3 - ORDER TO DISMISS -
Hebbe v. Pliler,
627 F.3d 338, 341 (9th Cir. 2010).
A "complaint [filed by a prose
'must be held to less stringent standards than formal
pleadings drafted by lawyers. '"
551 U.S. 89, 94
(quoting Erickson v. Pardus,
Before dismissing a pro se complaint for failure to state a
claim, this Court supplies the plaintiff with a statement of the
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
Karim-Panahi, 839 F.2d at 623; Lopez v. Smith, 203 F.3d
1122, 1130-31 (9th Cir. 2000).
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
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
Jones v. Community Redev. Agency of the City of Los
Angeles, 733 F.2d 646, 649 (9th Cir. 1984)
Plaintiff's Complaint is neither short nor plain.
4 - ORDER TO DISMISS -
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.
original complaint and not amended complaint,
for subject matter
Moreover, the burden is on the federal plaintiff to
independent duty to consider its own subject-matter jurisdiction,
whether or not the issue is raised by the parties.
12 (h) (3);
see also Cal.
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
5 - ORDER TO DISMISS -
819 F. 2d at 237.
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
barred, because a federal district court does not have jurisdiction
to review legal errors in state court decisions.
Court of Appeals v.
Dist. of Columbia
476 (1983); Rooker v.
Fidelity Trust Co., 263 U.S. 413, 415 (1923).
Based on the Complaint and its attachments,
this Court is
abstention principles, or because Plaintiff seeks to appeal a state
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.
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
6 - ORDER TO DISMISS -
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
Plaintiff's remaining motions
Nos. 4, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21) are found
IT IS SO ORDERED.
day of May, 2017.
United States District Judge
7 - ORDER TO DISMISS -
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