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)

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."
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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

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