Chung v. PSRB Director, No. 6:2014cv00952 - Document 5 (D. Or. 2014)
Court Description: Order and Findings & Recommendation: Application for Leave to Proceed IFP 1 is granted. Findings & Recommendation: Complaint 2 should be dismissed. Objections to the Findings and Recommendation are due by 8/14/2014. Signed on 7/28/2014 by Magistrate Judge Thomas M. Coffin. (plb)
Download PDF
<![CDATA[
Chung v. PSRB Director Doc. 5 UNITED STATES DISTRICT COURT DISTRICT OF OREGON ANDY CHUNG, 6:14-cv-952-TC Plaintiff, v. FINDINGS AND RECOMMENDATION PSRB DIRECTOR, Defendant. COFFIN, Magistrate Judge. Plaintiff's Application to Proceed in forma pauperis (#1) is allowed. should be failure to Sparling v. However, for the reasons set forth below, this action dismissed state a sua sponte claim. Hoffman Constr. 28 for lack U.S.C. § Co., 8 64 of jurisdiction 1915(e) (2); F. 2d 635, 637 see and also (9th Cir. 1988). Plaintiff alleges "I was "attacked on 4/19/2014 by my roommate's boyfriend Tyson, because the PSRB allow Tyson to come 1 - FINDINGS AND RECOMMENDATION D Dockets.Justia.com to (Stepping Stones Group Home) as a regular visitor." Plaintiff alleges in Claim II and Claim III that he has been "punished" by the PSRB because of an alleged "threat" on his Facebook page about a "protest in demonstration" (sic). Plaintiff alleges "federal question" "discrimination." defendant. jurisdiction based on Plaintiff does not name a specific individual The court assumes that plaintiff's reference to the "PSRB" intends to refer to the Oregon Psychiatric Security Review Board. "In federal court, dismissal for failure to state a claim is proper 'only if it is clear that no relief could be granted under any set of facts allegations.'" could be proved consistent with the Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993) 73 that (quoting Hishon v. King & Spalding, 467 U.S. 69, (1984)); Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989). In making this determination, this court accepts all allegations of material fact as true and construes the allegations light most favorable to the nonmoving party. in the Tanner, 879 F.2d at 576. In cases involving a plaintiff proceeding pro se, this court construes the pleadings liberally and affords the plaintiff the benefit of any doubt. Cir. McGuckin v. Smith, 974 F.2d 1050, 1055 (9th 1992); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 2 - FINDINGS AND RECOMMENDATION D 621, 623 (9th Cir. 1988). Before dismissing a pro se civil rights complaint for failure to state a claim, this court supplies the statement of the complaint's deficiencies. 1055; Karim-Panahi, 839 F.2d at 623-24; plaintiff with a McGuckin, 974 F.2d at Eldridge v. Block, 832 A prose litigant will be given F.2d 1132, 1136 (9th Cir. 1987). leave to amend his or her complaint unless it is absolutely clear that the amendment. deficiencies of Karim-Panahi, the complaint cannot be cured 839 F.2d at 623; Noll v. Carlson, by 809 F.2d 1446, 1447 (9th Cir. 1987). Pursuant to Fed. R. Civ. P. 8(a), a complaint shall include "(1) a short and plain statement of the grounds upon which the court's jurisdiction depends ... , (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and ( 3) a demand for judgment for the relief the pleader seeks." "Each averment of a pleading shall be simple, concise and direct." Fed. R. Civ. P. 8(e). A district court has the power to dismiss a complaint when a plaintiff fails to comply with Federal Rules of Civil Procedure 8 (a) and 8 (e). McHenry v. Renne, 84 F. 3d 1172, 1179 (9th Cir. 1996); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). If the factual elements of a cause of action are scattered 3 - FINDINGS AND RECOMMENDATION D throughout the complaint but are not organized into a "short and plain statement of the claim," dismissal for failure to satisfy Rule 8(a) 635, 640 is proper. Sparling v. Hoffman Constr. Co., 864 F.2d (9th Cir. 1988); see also, Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). In order to state plaintiff must allege identify how that a claim against specific facts defendant's a named defendant, about that defendant and conduct violated his rights. General allegations are insufficient. The absence of any factual allegations against a named defendant will entitle that defendant to have the complaint dismissed as to him, pursuant to Fed. Civ. P. 12(b). R. Polk v. Montgomery County, 548 F. Supp. 613, 614 (D.Md. 1982). ,See also, Morabito v. Blum, (S.D. N.Y. se 1981). Although pro 528 F.Supp. complaints 252, are 262 to interpreted liberally, Haines v. Kerner, 92 S.Ct. 594 (1972), be the court may not supply essential elements that are not pleaded. Ivey v. Board of Regents, 673 F.2d 266 (9th Cir. 1982). I find that the complaint before the court does not meet the minimal pleading requirements of the federal rules. Assuming that the pleading deficiencies could be cured by amendment, plaintiff's allegations fail to state a claim for the reasons discussed below. As noted above, plaintiff's allegations are apparently intended to allege a claim against the director of the Oregon 4 - FINDINGS AND RECOMMENDATION D Psychiatric Security Review The Board. Psychiatric Security Review Board ("PSRB") is an agency of the State of Oregon. Eleventh Amendment Immunity: Eleventh Amendment immunity applies. A state or its officials or agencies may not be sued by private individuals unequivocally in federal consented to court that unless the or action, state has Congress has unequivocally expressed its intent under the Fourteenth Amendment to waive the immunity of the University of Alabama v. Garrett, Tribe of Florida v. Board of States. Trustees of 531 U.S. 356 (2001); Seminole Florida, 517 U.S. 44, 54 see also, (1996); Quern v. Jordan, 440 U.S. 332 (1979); Edleman v. Jordan, 415 U.S. 651, 673 (1984); Pennhurst Halderman, 465 U.S. 89 (1984). bars any sought. such action Cory v. State and Hospital v. The Eleventh Amendment otherwise regardless White, School of 457 U.S. the 85 nature (1982); of the Brooks v. relief Sulpher Springs Valley Elec. Co-Op, 951 F.2d 1050, 1053 (9th Cir. 1991). Individual defendants share in the Eleventh Amendment immunity afforded states and state agencies where the individuals are sued in their official capacities because such suits "are, in essence, actions against the government entity of which the officer is an agent." Mitchell v Los Angeles Community College Dist., 861 F.2d 19 8 , 2 0 1- 0 2 doctrine, a ( 9th state Ci r . 19 9 9 ) . entity and Under its the "arm officers in of the their state" official 5 - FINDINGS AND RECOMMENDATION D capacities share the state's sovereign immunity because "'the state is the real party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials [or state entities] are nominal defendants.'" Durning v. N.A., 950 F.2d 1419, 1423 (9th Cir. 1991) Dep't of Treasury, 323 U.S. 459, 464 Citibank, (quoting Ford Mtor Co. V. (1945)). A suit against a state officer in his official capacity is effectively considered a suit against the official's office, and therefore, it "is no different than a suit against the State itself." Will v. Michigan Dep't of State Police, 419 U.S. 58, 71 (1989). Thus, to the extent that plaintiff seeks to hold the "PSRB Director" liable in his or her official capacity, plaintiff's claims are barred by the Eleventh Amendment. Respondeat superior: Plaintiff apparently seeks to hold defendant liable under a theory of respondeat superior. It is well settled that respondeat superior is not a proper basis for liability under 42 U.S.C. § 1983. Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 691-694 (1978); Rizzo v. Goode, 423 U.S. 362, 375-76 (1976); King v. Atiyeh, 814 F.2d 565, 568 (9th.Cir. 1987). To establish a§ 1983 claim against an individual participation deprivation. defendant, by the a plaintiff defendant in the must establish alleged personal constitutional Ashcroft v. Iqbab, 129 S.Ct. 1937 (2009). 6 - FINDINGS AND RECOMMENDATION D A "supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. citing Ybarra v. 675, 680-81 791,. 799 List, 880 F.2d 1040, 1045 (9th Cir. Reno Thunderbird Mobile Home Village, (9th Cir. 1984). (4th Cir. 1994) See also, 1989), 723 F.2d Shaw v. Stroud, 13 F.3d (supervisory liability only when a) actual or constructive knowledge of a pervasive and unreasonable risk of injury; b) deliberate indifference to or tacit authorization of the practice; and c) an affirmative causal link between inaction and the injury) . Supervisory officials may also be liable if they "implement a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'" Redman v. County of San Diego, 924 F.2d 1435, 1446 (9th Cir. 1991), cert. denied, 112 S. Ct. 972 (1992). Plaintiff has not alleged any facts that would establish that the "PSRB Director" personally participated in the alleged conduct he complains of or any facts that would subject the named defendant to liability CONCLUSION Plaintiff's Application to Proceed In forma Pauperis (#1) is allowed. However, plaintiff's complaint should be dismissed for 7 - FINDINGS AND RECOMMENDATION D failure to state a Because claim. the complaint cannot be cured by amendment, with prejudice. deficiencies of the the dismissal should be The Clerk of the Court should be directed to enter a judgment accordingly. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal of pursuant to Rule 4 (a) ( 1) , Federal Rules Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. (14) days from the date The parties shall have fourteen of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties have fourteen within which to file a response to the objections. timely file objections to any factual (14) days Failure to determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. IIIII IIIII IIIII IIIII 8 - FINDINGS AND RECOMMENDATION D Any appea~ £rom an Recommendation or Judgment o£ order adopting dismissa~ wou~d this be Finding £rivo~ous and and not taken in good £aith. DATED this ~ day of . Coffin States Magistrate Judge 9 - FINDINGS AND RECOMMENDATION D
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
