Duke v. Dept Human Services et al
OPINION AND ORDER: Denying Motion for a Preliminary Injunction 21 . Further, Plaintiff's amended complaint is DISMISSED, without prejudice. Plaintiff is allowed 30 days from the date of this order to file a complaint that complies with the requirements of Fed R. Civ. P. 8(a). Failure to file an amended complaint as ordered will result in the dismissal of this action, with prejudice. The Court sua sponte orders a pro bono appointment of counsel be made for the specific and limited p urpose of reviewing the case with plaintiff and discussing options to proceed. This appointment shall not exceed 3 hours in length. Amended Complaint is due 10/23/2017. IT IS SO ORDERED. Signed on 9/21/2017 by Judge Ann L. Aiken. A copy of this Opinion and Order was mailed to S.D. (ck) Modified on 9/21/2017 by removing mailing to Shayla M. Duke (Rogers) (ck).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
S.D., and ex rel. D.D. and
Next Friend ofM.D
Case No. 6:17-cv-00770-JR
OPINION AND ORDER
CLIDE SAIKI, et al.,
AIKEN, District Judge:
Pro se plaintiff, S.D., moves this Court for a preliminary injunction against the Oregon
Department of Human Services ("DHS") enjoining it from making any reductions of in-home
services funded by the agency and restoring full benefits to any consumer whose benefits have
been reduced. For the reasons set forth herein, the motion for preliminary injunction is DENIED
and plaintiffs amended complaint is ordered DISMISSED, without prejudice.
PAGE l -ORDER
Pro se plaintiff S.D., proceeding in Jonna pauperis, brings this action against various
employees of the Oregon Depatiment of Human Services ("DHS"). On May 23, 2017, the Comt
dismissed plaintiffs complaint, with leave to amend, for failure to state a claim pursuant to 28
U.S.C. § 1915(e). On June 27, 2017, the Comt denied plaintiffs motion for appointment of pro
bono counsel (doc. 8) because the underlying facts and legal issues did not appear to be overly
complex, and plaintiffs briefing demonstrated an ability to sufficiently articulate claims pro se.
On July 7, 2017, the Court granted plaintiff an extension of time to file an amended complaint.
On July 24, 2017, plaintiff filed an Emergency Motion (doc. 15), in which she argued
that she was unable to meet the deadline to amend her pleadings. She also therein objected to an
attached Oregon Court of Appeals Judgement because it "did not allow costs" and "is being used
to inflict intentional emotional hmm [and] distress in retaliation for filing this case." Pl.' s
Emergency Mot. 2. On July 25, 2017, plaintiff moved for reconsideration of the Court's denial
of pro bono counsel because she had "reasonable cause to believe" defendants were "guilty of
plotting to deport her husband or her child," such that she needs "a preliminary
injunction/restraining order against the defendants," which she could not obtain "without legal
assistance." Pl.'s Mot. Recons. 2. In supp01i of that motion, plaintiff attached docket entries
from this case, as well as hundreds of pages of documents from Oregon administrative and state
On August 9, 2017, the Court denied plaintiffs Emergency Motion and Motion for
Reconsideration, except to the extent that the latter sought to file the underlying documents
under seal, and allowed plaintiff one final oppo1iunity to file a complaint that was not precluded
by the Rooker-Feldman doctrine and complied with the requirements of Fed. R. Civ. P. 8(a).
Specifically, the Court explained that it lacked subject matter jurisdiction under Rooker-Feldman
to: (1) sit in direct review of a state court; or (2) consider any claim that amounts to a collateral
attack on issues, constitutional or otherwise, that were or could have been raised during, or are
intertwined with, a state court decision. (doc. 18).
On September 8, 2017, plaintiff filed an amended class action complaint on behalf of
herself, her husband ("D.D."), and her minor child ("M.D."), encompassing 38 pages, 166
paragraphs, and eight claims asserted against 21 individually-named defendants (doc. 20). In
conjunction with her amended complaint, plaintiff moved for a preliminary injunction that,
among other things, requested that the Court "enter an order halting further reductions in inhome services by DHS and restoring full benefits of any consumer whose benefits DHS
reduced." Pl.'s Mot. Preliminary Inj. 33. In seeking a preliminary injunction, plaintiff attaches
many of the same state court documents previously submitted in regard to her Motion for
Initially, plaintiffs claims contain very few underlying factual allegations and, as such,
presumably incorporate by reference the preceding 118 paragraphs. Importantly, plaintiff does
not delineate which of the twenty-one individually-named defendants her claims are asserted
against. For this reason alone, plaintiff fails to satisfy Fed. R. Civ. P. 8(a) and dismissal pursuant
to 28 U.S.C. § 1915(e) is wan-anted. See 1vfcHe111y v. Renne, 84 F.3d 1172, 1176-78 (9th Cir.
1996) (each avennent of a pleading must be simple, concise, and direct, stating which defendant
is liable for which wrong); see also (doc. 5) (outlining the standard for an in Jonna pauperis
complaint to survive dismissal).
PAGE 3 -ORDER
Equally problematic is the fact that plaintiffs amended complaint appears to be, with
cetiain minimal additions, a direct copy of the dispositive pleading from C.S. et al. v. Saiki et.
al., Case No. 6: 17-cv-00564-MC ("C.S. v. Saiki"), which was drafted by an attorney and brought
on behalf of a putative class. Although plaintiff names D.D. and S.D. in her amended complaint
and seeks class certification, she has not identified any injury outside of that already atiiculated
in C.S. v. Saiki (except to the extent that she seeks to challenge state court proceedings related to
the reduction of D.D.'s benefits and, by extension, her compensation as an in-home care
provider; however, as noted in the August 9, 2017 Order, the Court lacks subject-matter
jurisdiction over these allegations). For this additional reason, her amended complaint fails.
Finally, plaintiff lacks standing to bring claims on behalf of D.D. or M.D. Regarding
M.D., it is well-established that "a guardian or parent may not bring suit in federal comi on
behalf of a minor without first retaining an attorney." Simon v. Hartford Life, Inc., 546 F.3d 661,
664 (9th Cir. 2008) (citing Johns v. Cnty. of San Diego, 114 F.3d 874, 876-77 (9th Cir. 1997)).
Concerning both M.D. and D.D., "[a]s a general rule, a third-party does not having standing to
bring a claim asserting a violation of someone else's rights." lvfartin v. Cal. Dep 't of Veterans
Affitirs, 560 F.3d 1042, 1050 (9th Cir. 2009) (citation omitted). Accordingly, because plaintiff is
not represented and neglected to provide the Court with any basis that would allow her to asseti
third-patiy claims, her allegations brought on behalf of D.D. and M.D. arc not cognizable.
Indeed, D.D. is over the age of eighteen and, therefore, if he seeks redress for the injuries alleged
in plaintiffs complaint, he may proceed pro se on his own behalf. 28 U.S.C. § 1654; see also
C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) ("[a]lthough a non-
attorney may appear in propria persona in his own behalf ... [h]e has no authority to appear as
an attorney for others than himself') (citations omitted).
lvfotion for Preliminmy Injunction
In order to succeed on a motion for preliminary injunction, a plaintiff seeking such relief
must establish (1) a likelihood of success on the merits; (2) a likelihood of hTeparable harm in
the absence of preliminary relief; (3) the balance of equities tips in the plaintiffs favor; and (4) a
preliminary injunction is in the public interest. Winter v. Nat 'l Resources Def Council, 555 U.S.
7, 21 (2008). A court may not enter a preliminary injunction without first affording the adverse
party notice and an opportunity to be heard. Fed. R. Civ. P. 65(1)(2); People of State of Cal. ex
rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1322 (9th Cir. 1985).
A preliminary injunction is not warranted in this case for several reasons. First, a district
comi has no authority to grant relief in the form of a temporary restraining order or permanent
injunction where it has no jurisdiction over the paiiies. See Ruhrgas AG v. }vfarathon Oil Co.,
526 U.S. 574, 584 (1999) ("Personal jurisdiction, too, is an essential element of the jurisdiction
of a district ... comi, without which the court is powerless to proceed to an adjudication.")
(citation and quotation omitted). Because plaintiffs complaint has failed to survive initial sua
sponte screenings, the United States Marshal has not yet been directed to effect service on her
behalf. The named defendants do not have actual notice of either the complaint or the motion for
preliminary injunction. Thus, this Court has no personal jurisdiction over any named defendants.
Second, as noted above, in conducting a sua sponte screening of plaintiffs amended
complaint, this Court has found that it does not state a claim upon which relief can be granted
and dismissed it, without prejudice, pursuant to 28 U.S.C. § 1915(e). Therefore, plaintiff has
necessarily failed to show, for purposes of justifying preliminary injective relief, any likelihood
of success on the merits of her claims at this time. Moreover, Plaintiff has not alleged the type of
immediate and irreparable harm necessary for an injunction to issue. To meet Federal Rule of
PAGE 5 -ORDER
Civil Procedure 65's "irreparable injury" requirement, plaintiff must do more than simply allege
imminent hatm; she must demonstrate it. Caribbean lvfarine Servs. Co., Inc. v. Baldridge, 844
F.2d 668, 674 (9th Cir. 1988). This requires that she allege "specific facts in an affidavit or a
verified complaint [which] clearly show" a credible threat of "immediate and irreparable injury,
loss or damage." Fed R. Civ. P. 65(b)(A).
A preliminary injunction is an extraordinary remedy never awarded as of right. Winter,
555 U.S. at 23. Given the status of plaintiffs pleadings and the lack of notice to the named
defendants, a preliminary injunction shall not be ordered at this time.
For the reasons stated above, plaintiffs' Motion for Preliminary Injunction (doc. 21) is
DENIED. Further, Plaintiffs amended complaint is DISMISSED, without prejudice. Plaintiff
is allowed 30 days from the date of this order to file a complaint that complies with the
requirements of Fed R. Civ. P. 8(a). Failure to file an amended complaint as ordered will result
in the dismissal of this action, with prejudice.
The Court sua sponte orders a pro bono
appointment of counsel be made for the specific and limited purpose of reviewing the case with
plaintiff and discussing options to proceed. This appointment shall not exceed 3 hours in length.
IT IS SO ORDERED .
Dated this oZ/ day of September, 2017.
United States District Judge
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