Opinion
Civil No. 04-3056-CO.
August 25, 2004
FINDINGS AND RECOMMENDATION
Plaintiffs allege in their first amended complaint a civil rights action for a "taking" and violation of their constitutional rights against various defendants, including the State of Oregon and Oregon Water Resources Department seeking damages in the amount of $1,000,000,000.00. (Amended Complaint at 1 and 4). Plaintiffs filed a second amended complaint without leave of court. In their second amended complaint, plaintiffs name the same defendants, but it is unclear what type of action they are bringing. (Plaintiffs' Second Amended Complaint). It appears this second amended complaint is also a civil rights action for violation of their constitutional rights. The State defendants move to dismiss plaintiffs' amended complaint (#6). The court will also apply this motion to plaintiffs' second amended complaint.
I. FACTS
In making the following statement of facts, I view the facts in plaintiffs' first and second amended complaints as true, and construe them in the light most favorable to plaintiffs. The following paragraphs paraphrase plaintiffs' allegations:
In their first amended complaint, plaintiffs allege that the Oregon Water Resources Department and the State of Oregon misled Judge Hogan in May and September of 2000. Defendants trespassed on the Leopold Mining Group and claims due to error on the maps caused by an engineer of the Oregon Water Resources Department. The Oregon Water Resources Department took plaintiffs' valid existing rights and in court misled Judge Hogan. (Plaintiffs' First Amended Complaint at 1). Plaintiffs allege their property was taken without due process. (Plaintiffs' First Amended Complaint at 3).
It appears that plaintiffs' second amended complaint consists of parts of an IBLA decision and various headnotes to the Fifth Amendment, but it is unclear. (Plaintiffs' Second Amended Complaint). Plaintiffs' Second Amended Complaint also alleges Fourteenth Amendment violations. (Plaintiffs' Second Amended Complaint).
II. LEGAL STANDARDS
Federal courts require notice pleading. A pleading must contain a short and plain statement of the claim showing the party is entitled to relief. Jones v. Community Redevelopment Agency of the City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1983). It must give fair notice and state the elements of the claim plainly and succinctly. Id. A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that plaintiff can plead no set of facts in support of a claim.California Dump Truck Owners Association v. Association of General Contractors of America, San Diego Chapter, Inc., 562 F.2d 607 (9th Cir. 1977). The court accepts plaintiff's material allegations in the complaint as true and construes them in the light most favorable to plaintiff. Sands v. Lewis, 886 F.2d 1166 (9th Cir. 1989); Gorham v. Banovetz, 652 F.2d 750 (8th Cir. 1981).
III. DISCUSSION
State defendants move to dismiss plaintiffs' complaints based on the grounds that Eleventh Amendment bars suit against them. The Eleventh Amendment bars a citizen from bringing suit in federal court against the citizen's own state, state agencies or departments when seeking monetary damages. Welch v. Texas Department of Highways and Public Transportation, 483 U.S. 468 (1987); Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Alabama v. Pugh, 438 U.S. 781 (1978); Thiokol Corp. v. Department of Treasury, State of Michigan, 987 F.2d 376, 381 (6th Cir. 1993) (citation omitted); Austin v. State Industrial Insurance System, 939 F.2d 676, 677 (9th Cir. 1991). A state's Eleventh Amendment immunity may be waived. Actmedia, Inc. v. Stroh, 830 F.2d 957 (9th Cir. 1986).
The test for finding a waiver is very stringent. Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985). The waiver or consent must be unequivocally expressed and must be stated by the most express language or by such overwhelming implications in the text as to leave no room for any other reasonable construction.Id; Welch, 483 U.S. at 473. (citation omitted). The Supreme Court has held that the enactment of 42 U.S.C. § 1983 was not intended to overcome a state's Eleventh Amendment immunity from suit. Edelman v. Jordan, 415 U.S. 651 (1974).
A state's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued.Pennhurst, 465 U.S. at 99. A general waiver of sovereign immunity, although sufficient to subject a state to suit in its own courts, is insufficient to waive a state's Eleventh Amendment immunity from suits in federal court. See Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985); Pennhurst, 465 U.S. at 99.
If the state expressly waives its immunity and consents to suit in federal court, the suit is not barred by the Eleventh Amendment. Welch, 483 U.S. at 473. (citation omitted);Scanlon, 473 U.S. at 241. In the absence of consent, a suit in federal court in which a state or its agency is named as a defendant is barred by the Eleventh Amendment. Pennhurst, 465 U.S. at 100.
Under the "arm of the state" doctrine, a state agency is immune from suit under the Eleventh Amendment because the state is the real party in interest. Durning v. Citibank, N.A., 950 F.2d 1419, 1423 (9th Cir. 1991). To determine whether an agency is an "arm of the state", the following factors must be examined:
1) whether the judgment would be satisfied out of state funds;
2) whether the entity performs central government functions;
3) whether the entity can sue or be sued;
4) whether the entity has the power to take property in its own name or only in the state's name; and
5) the corporate status of the entity. When determining these factors the court looks to the way state law treats the entity.Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
ORS 536.040 establishes of the Water Resources Department in the executive-administrative branch of the state government. Under Oregon law the Oregon Water Resources Department is treated as an arm of the state.
In this case, plaintiffs are seeking compensatory against the State of Oregon and the Oregon Water Resources Department. Plaintiffs do not cite the basis for jurisdiction.
Plaintiffs cannot rely on the Oregon Tort Claims Act (OTCA) as a basis for jurisdiction because the OTCA is a general waiver of the state's sovereign immunity. The statute contains no express consent to suit in federal court. This general waiver of the state's sovereign immunity is insufficient to waive the state's Eleventh Amendment immunity to suit in federal court.
Since § 1983 and the OTCA are not waivers of the state's Eleventh Amendment immunity from suits in federal court, this court lacks subject matter jurisdiction over plaintiffs' claims against the State of Oregon and the Oregon Water Resources Department.
IV. RECOMMENDATION
Based on the forgoing, it is recommended that defendants' motion to dismiss (#6) be granted and plaintiffs' action against the State of Oregon and the Oregon Water Resources department be dismissed.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have ten days within which to file a response to the objections. Failure to timely file objections to any factual 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.