The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
ROBERT S. BONDICK, Civ. No. 6:20-cv-01728-AA
Plaintiff, OPINION & ORDER
v.
HOMES FOR GOOD HOUSING AGENCY,
Defendant.
_______________________________________
AIKEN, District Judge.
Pro Se Plaintiff Robert S. Bondick seeks leave to proceed in forma pauperis
(“IFP”) in this action. ECF No. 11. The Court previously granted IFP status but
dismissed Plaintiff’s original Complaint with leave to amend. ECF No. 7. For the
reasons set forth below, Plaintiff’s Amended Complaint, ECF No. 8, is DISMISSED
without further leave to amend. Final judgment shall be entered accordingly.
LEGAL STANDARD
Generally, all parties instituting any civil action in United States District
Court must pay a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP
statute, 28 U.S.C. § 1915(a)(1), provides indigent litigants an opportunity for
meaningful access to federal courts despite their inability to pay the costs and fees
associated with that access. To authorize a litigant to proceed IFP, a court must make
two determinations. First, a court must determine whether the litigant is unable to
pay the costs of commencing the action. 28 U.S.C. § 1915(a)(1). Second, it must assess
whether the action is frivolous, malicious, fails to state a claim upon which relief may
be granted, or seeks monetary relief from a defendant who is immune to such relief.
28 U.S.C. § 1915(e)(2)(B).
In regard to the second of these determinations, district courts have the power
under 28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the
complaint on the defendants and must dismiss a complaint if it fails to state a claim.
Courts apply the same standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing
a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter,
668 F.3d 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss under the federal
pleading standards, the complaint must include a short and plain statement of the
claim and “contain sufficient factual matter, accepted as true, to ‘state a claim for
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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. The plausibility
standard . . . asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. The court is not required to accept legal conclusions, unsupported
by alleged facts, as true. Id.
Pro se pleadings are held to less stringent standards than pleadings by
attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). That is, the court should
construe pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefit of
any doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir.
1988). Additionally, a pro se litigant is entitled to notice of the deficiencies in the
complaint and the opportunity to amend, unless the complaint’s deficiencies cannot
be cured by amendment. Id.
DISCUSSION
In the Court’s previous Order dismissing the original Complaint, the Court
noted that the pleadings fell short of the requirement that a complaint provide more
than “an unadorned, the defendant-unlawfully-harmed-me accusation.” Order, at 3
(quoting Iqbal, 556 U.S. at 678). A complaint “must contain sufficient factual
matter accepted as true, to state a claim for relief that is plausible on its face[,]”
meaning “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678.
The Court observed that the original Complaint did not clearly establish
federal jurisdiction, either through diversity or federal question jurisdiction. Order,
at 4. In the Amended Complaint, ECF No. 8, it appears that Plaintiff is alleging a
claim for violation of his rights pursuant to 42 U.S.C. § 1983. Title 42 U.S.C. § 1983
“provides a federal cause of action against any person who, acting under color of
state law, deprives another of his federal rights.” Conn v. Gabbert, 526 U.S. 286,
290 (1999). To maintain a claim under § 1983, “a plaintiff must both (1) allege the
deprivation of a right secured by the federal Constitution or statutory law, and (2)
allege that the deprivation was committed by a person acting under color of state
law.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).
Here, Plaintiff alleges that Defendant breached a contract, apparently a
housing voucher, in retaliation for Plaintiff’s refusal to sign a release related to the
settlement of previous litigation between the parties. To the extent that Plaintiff is
alleging First Amendment retaliation, he has failed to plead facts in support of that
claim, or even to clearly establish the basic facts of his case. For instance, Plaintiff
alleges that Defendant caused the housing voucher to expire because Plaintiff did
not sign the settlement agreement, but the voucher itself shows that the voucher
would expire by its own terms on July 7, 2020, three months before Plaintiff
commenced this action. Am. Compl. Ex. 2. How Defendants allegedly breached this
contract, or if some other contract is at issue, is left unexplained.
As the Court observed in its prior Order, the referenced settlement appears to
be related to Bondick v. Khalsa et al., Case No. 6:18-02122-MK. In that case,
Plaintiff unsuccessfully attempted to have the final judgment set aside after
Plaintiff “refused to consummate the settlement he and his then attorney agreed to
at the settlement conference because he later felt that the amount agreed to was not
enough compensation.” Opinion and Order at 5, ECF No. 87 in Case No. 6:18-
02122-MK. Plaintiff has also unsuccessfully pursued an appeal in that case.
Here, Plaintiff’s Amended Complaint alleges that Defendant breached a
contract to reinstate Plaintiff’s housing “in retaliation because Plaintiff refused to
release the allegations from a previous law suit filed against them.” Am. Compl. 1.
As the Court observed in its prior Order, “[i]t seems that plaintiff is asking this
Court to either enforce that settlement or impose damages for breach,” and “[i]t is
likely that his claim in this case is precluded by that previous litigation.” Order at
5. This collateral attempt to challenge the judgment in Case No. 6:18-02122-MK, or
to seek recission or modification of the settlement agreement in that case is, as the
Court previously informed Plaintiff, barred by preclusion.
The Court therefore DISMISSES Plaintiff’s Amended Complaint for failure to
state a claim. Plaintiff has previously been given leave to amend with guidance
from the Court and this guidance has not resulted in a complaint that meets federal
pleading standards. It appears that allowing amendment would be futile and
dismissal shall therefore be without further leave to amend.
CONCLUSION
For the reasons set forth above, the Amended Complaint, ECF No. 8, is
DISMISSED without leave to amend. Final judgment shall be entered accordingly.
It is so ORDERED and DATED this 14th day of June 2022.
/s/Ann Aiken
ANN AIKEN
United States District Judge