White v. Dietrich

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DAVID WHITE, Case No. 1:24-cv-01395-IM

Plaintiff, OPINION AND ORDER GRANTING

PLAINTIFF’S IFP APPLICATION,

v. DISMISSING THE COMPLAINT, AND

DENYING PLAINTIFF’S MOTION

SUSANA DIETRICH; MARY LOU FOR PRELIMINARY INJUNCTION

SOSCIA, in her personal capacity as AND TEMPORARY RESTRAINING

President of Water Watch Oregon; BRYAN ORDER

SOHLIN, in his personal capacity as Vice

President of Water Watch Oregon; NEIL

BRANDT, in his personal capacity as

Executive Director of Water Watch Oregon;

and MELANIE KLYM, River Design

Group,

Defendants.

David White, 18965 NW Illahe St, Portland, OR 97229. Pro Se.

IMMERGUT, District Judge.

This matter is before this Court on Plaintiff David White’s Application to Proceed In

Forma Pauperis, ECF 2, and Motion for a Preliminary Injunction and Temporary Restraining

PAGE 1 – OPINION AND ORDER GRANTING PLAINTIFF’S IFP APPLICATION,

Order, ECF 3. Plaintiff has shown an inability to prepay fees and costs or give security for them.

Accordingly, this Court grants Plaintiff’s request to proceed in forma pauperis (“IFP”) pursuant

to 28 U.S.C. § 1915(a). For the reasons below, however, this Court dismisses Plaintiff’s

Complaint without prejudice. See 28 U.S.C. § 1915(e)(2). Plaintiff may refile a signed complaint

on or before September 16, 2024. Plaintiff is advised that any amended complaint should comply

with the standards identified below. This Court also denies Plaintiff’s Motion for a Preliminary

Injunction and Temporary Restraining Order as he has failed to establish standing and

irreparable harm. Plaintiff may refile this motion, if appropriate, but not before filing any

amended complaint.

LEGAL STANDARDS

A complaint filed IFP may be dismissed at any time, including before service of process,

if the court determines that 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. § 1915(e)(2); see also Neitzke v. Williams, 490 U.S. 319, 324 (1989)

(explaining that sua sponte dismissals under § 1915 “spare prospective defendants the

inconvenience and expense of answering” complaints which are “frivolous, malicious, or

repetitive”); Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000) (en banc) (noting that

§ 1915(e) applies to all IFP complaints, not just those filed by prisoners). A complaint is

frivolous when “it lacks an arguable basis either in law or in fact.” Neitzke, 490 U.S. at 325;

Ozim v. City & County of San Francisco, No. 21-15099, 2021 WL 5412457, at *1 (9th Cir. Nov.

19, 2021). A complaint fails to state a claim when it does not contain sufficient factual matter

which, when accepted as true, gives rise to a plausible inference that a defendant violated a

plaintiff’s rights. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550

PAGE 2 – OPINION AND ORDER GRANTING PLAINTIFF’S IFP APPLICATION,

U.S. 544, 556–57 (2007). “Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Courts, however, must construe pro se filings liberally. Gonzalez-Castillo v. Garland, 47

F.4th 971, 980 (9th Cir. 2022). A pro se complaint, “however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers.” Simmons v. United States,

142 S. Ct. 23, 25 (2021) (Sotomayor, J., statement respecting denial of certiorari) (quoting

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). A pro se litigant will be given leave to

amend his complaint unless it is clear that the deficiencies of the complaint cannot be cured by

amendment. Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (per curiam).

BACKGROUND

Plaintiff filed the Complaint on August 23, 2024. Complaint (“Compl.”), ECF 1. Plaintiff

brings this action under 18 U.S.C. § 3; 18 U.S.C. § 1001; 18 U.S.C. § 1621, the Endangered

Species Act (“ESA”); 18 U.S.C. § 41; 29 CFR § 1606.8 (1), the Clean Water Act; 28 U.S.C.

§ 4101; and 33 CFR Part 329. Id. at 3–4. Plaintiff did not sign his complaint. ECF 1. Plaintiff

names as Defendants the following individuals: (1) Susana Dietrich, the apparent owner of

Dietrich Construction; (2) Mary Lou Soscia, the alleged President of Water Watch of Oregon;

(3) Bryan Sohlin, the alleged President of Water Watch of Oregon; (4) Neil Brandt, the alleged

Executive Director of Water Watch of Oregon; and (5) Melanie Klym of River Design Group.

Id. at 1–2. Plaintiff alleges a class action, where class action members are “local stakeholders”

whose identities will be withheld until trial. Id. at 2. The lawsuit concerns the alleged future

removal of the Pomeroy Dam on the Illinois River. Id. at 4, 25. In his IFP application, Plaintiff

states that he is retired and earns only $78 per month. ECF 2 at 1.

PAGE 3 – OPINION AND ORDER GRANTING PLAINTIFF’S IFP APPLICATION,

DISCUSSION

A. Sua Sponte Dismissal

As detailed below, this Court finds that it is appropriate to dismiss Plaintiff’s Complaint

sua sponte and permit him leave to amend. Plaintiff is advised that an amended complaint

supersedes the preceding complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

After amendment, the court treats all preceding complaints as nonexistent. Id. Because this Court

grants Plaintiff leave to amend all of his claims raised here, except those grounded in criminal

law, any claim raised in a preceding complaint is waived if it is not raised again in the amended

complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012).

1. Jurisdiction

Before screening Plaintiff’s Complaint pursuant to § 1915(e)(2)(B), this Court first

addresses whether it has jurisdiction over this action.

a. Original Jurisdiction

Federal courts are courts of limited jurisdiction and are not empowered to hear every

dispute presented by litigants. See A-Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003). A

federal district court is empowered to hear only those cases that are within the judicial power

conferred by the United States Constitution and those that fall within the area of jurisdiction

granted by Congress. See United States v. Ceja-Prado, 333 F.3d 1046, 1049–50 (9th Cir. 2003).

Original jurisdiction must be based either on a claim arising under the Constitution, laws, or

treaties of the United States or on diversity of citizenship for controversies involving more than

$75,000. 28 U.S.C. §§ 1331, 1332.

Here, Plaintiff brings claims under 18 U.S.C. §§ 3, 1001, and 1621. Though these are

federal statutes, they do not confer jurisdiction here because they do not provide a private right

of action. The first, 18 U.S.C. § 3, is a criminal statute for accessory after the fact to a federal

PAGE 4 – OPINION AND ORDER GRANTING PLAINTIFF’S IFP APPLICATION,

offense and does not create a private right of action.1 The second, 18 U.S.C. § 1001, is a criminal

statute that punishes fraudulent statements within the executive, legislative, or judicial branches,

and does not create a private right of action.2 The third, 18 U.S.C. § 1621, is the criminal statute

for perjury and does not create a private right of action.3 Any claims brought by Plaintiff under

these statutes are dismissed. If Plaintiff includes these claims in an amended complaint, this

Court will dismiss them with prejudice.

b. Subject Matter Jurisdiction

Standing is an aspect of subject matter jurisdiction and is necessary “no matter how

important the issue.” Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100, 1107 (9th Cir.

2006). Courts have “both the power and the duty” to raise the adequacy of standing sua sponte.

Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002).

Plaintiff seeks damages and declaratory and injunctive relief. Compl., ECF 1 at 1.

Plaintiff must have standing for each type of relief sought. Summers v. Earth Island Inst., 555

1 Giblin v. Bloomfield, No. C19-5480 BHS-TLF, 2020 WL 4808654, at *2 (W.D. Wash.

July 15, 2020), report and recommendation adopted, 2020 WL 4785547 (W.D. Wash. Aug. 18,

2020); Birdwell v. Larsen, No. 05-1956-KI, 2006 WL 975911, at *5 (D. Or. Apr. 6, 2006);

Steinman v. I.R.S., No. CIV 95-1889 PHX EHC, 1996 WL 512333, at *5 (D. Ariz. June 5, 1996).

2 Swanson v. Danielson, No. 6:23-CV-00754-MK, 2023 WL 4474629, at *1 (D. Or. May

25, 2023) (“Because the statute does not confer a private right of action, Plaintiff has not stated

any claim under 18 U.S.C. § 1001.”), report and recommendation adopted, No. 6:23-CV-00754-

MK, 2023 WL 4461760 (D. Or. July 11, 2023); Dowdell v. Sacramento Hous. & Redevelopment

Agency, No. 2:11-CV-00409 JAM, 2011 WL 837046, at *2 (E.D. Cal. Mar. 8, 2011) (“[M]yriad

other courts throughout the nation have persuasively concluded that Section 1001 does not

provide an express or implied right of action.”); Hazzard v. Schaaf, No. 22-CV-02921-JSW,

2022 WL 5101769, at *2 (N.D. Cal. Oct. 4, 2022).

3 Kandell v. SUR 702, No. 223CV00248APGEJY, 2023 WL 3020333, at *2 (D. Nev.

Apr. 20, 2023), report and recommendation adopted, No. 223CV00248APGEJY, 2023 WL

4174624 (D. Nev. June 23, 2023); Li Qin v. Brown, No. 19-CV-00311-SVK, 2019 WL

11343485, at *7 (N.D. Cal. Feb. 7, 2019); Chipman v. Nelson, No. 2:11-CV-2770-TLN-EFB,

2014 WL 4635117, at *9 n.7 (E.D. Cal. Sept. 10, 2014).

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U.S. 488, 493 (2009). “To seek injunctive relief, a plaintiff must show that he is under threat of

suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and

imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of

the defendant; and it must be likely that a favorable judicial decision will prevent or redress the

injury.” Id. “[A]t least one named plaintiff must satisfy the actual injury requirement to seek

relief on behalf of himself or the class.” Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1002

n.7 (9th Cir. 2006) (emphasis omitted) (quoting Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir.

1993)).

Plaintiff states that “[s]tanding is inherent or built-in by the class action nature of this

case.” Compl., ECF 1 at 30. However, in a class action, “at least one named plaintiff must have

standing.” I.C. v. Zynga, Inc., 600 F. Supp. 3d 1034, 1046 (N.D. Cal. 2022) (emphasis added)

(first citing Frank v. Gaos, 586 U.S. 485, 493 (2019); then citing Ollier v. Sweetwater Union

High Dist., 768 F.3d 843, 865 (9th Cir. 2014)). As the only named plaintiff, Plaintiff himself

must have standing. Plaintiff also states that standing is “inherent” due to the alleged federal

environmental law allegations. Compl., ECF 1 at 30. This is incorrect. Suing under federal

environmental laws does not allow Plaintiff to bypass the standing inquiry.

As to the injury prong, Plaintiff does not allege how the destruction of the dam would

injure him. According to the Complaint, Plaintiff resides in Portland, Oregon. Compl., ECF 1 at

1. Plaintiff does not allege, for example, that he regularly visits the Southern Oregon river or that

he fishes in it or that he obtains power from the dam. Plaintiff must have a “more specific

connection” than caring for the environment. Lujan v. Defs. of Wildlife, 504 U.S. 555, 567

(1992).

PAGE 6 – OPINION AND ORDER GRANTING PLAINTIFF’S IFP APPLICATION,

As to the imminence requirement, Plaintiff does not allege the date on which the dam is

scheduled to be taken down. It is unclear if the dam removal is scheduled and “imminent,” rather

than “conjectural or hypothetical.” Thus, this Court finds that Plaintiff lacks standing to seek

injunctive relief.

c. Federal Rule of Civil Procedure 4

Plaintiff served his Complaint on Defendants by email and CM/ECF notification. Compl.,

ECF 1 at 33–34. As described below, this method of service is insufficient, and this Court

therefore lacks jurisdiction over Defendants.

Without proper service under Federal Rule of Civil Procedure 4, a court cannot exercise

jurisdiction over a defendant. Barnett v. Maxwell, No. 6:22-CV-00312-MK, 2022 WL 2817176,

at *1 (D. Or. July 19, 2022); Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840

F.2d 685, 688 (9th Cir. 1988). Federal Rule of Procedure 4(e) authorizes four methods of service

on an individual within a United States Judicial District:

(1) following state law for serving a summons in an action brought

in courts of general jurisdiction in the state where the district court

is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint

to the individual personally;

(B) leaving a copy of each at the individual’s dwelling or

usual place of abode with someone of suitable age and

discretion who resides there; or

(C) delivering a copy of each to an agent authorized by

appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e).

Under state law, the Oregon Rules of Civil Procedure provide that:

PAGE 7 – OPINION AND ORDER GRANTING PLAINTIFF’S IFP APPLICATION,

Summons shall be served, either within or without this state, in any

manner reasonably calculated, under all the circumstances, to

apprise the defendant of the existence and pendency of the action

and to afford a reasonable opportunity to appear and defend . . . .

Service may be made, subject to the restrictions and requirements

of this rule, by the following methods: personal service of true

copies of the summons and the complaint upon defendant or an

agent of defendant authorized to receive process; substituted

service by leaving true copies of the summons and the complaint at

a person’s dwelling house or usual place of abode; office service

by leaving true copies of the summons and the complaint with a

person who is apparently in charge of an office; service by mail; or

service by publication.

Or. R. Civ. P. 7(D)(1). Alternate service is appropriate “when it appears that service is not

possible under any method otherwise specified in these rules or other rule or statute.” Or. R. Civ.

P. 7(D)(6). One such alternative is service by email. Or. R. Civ. P. 7(D)(6)(b). However, the

plaintiff must move the court for alternate service. Or. R. Civ. P. 7(D)(6).

Plaintiff is thus incorrect that service by email and CM/ECF is appropriate at this stage.

Compl., ECF 1 at 32–33; see In re J.P., No. 1:24-CV-00648-AA, 2024 WL 1701940, at *1 (D.

Or. Apr. 19, 2024) (denying motion for alternate service where petitioner failed to show that

“service is not possible save by alternative means.”); Barnett, 2022 WL 2817176, at *1 (denying

plaintiff’s motion for alternate service). Plaintiff cites the Oregon Uniform Trial Court Rules

821.10(2) for his proposition that email service is allowed under Oregon law. Compl., ECF 1 at

32–33. This Court is unable to locate this provision and finds no other authority to support

Plaintiff’s position. Plaintiff must therefore properly serve any amended complaint on

Defendants and submit proof of service to the Court.

2. Federal Rule of Civil Procedure 11

This Court next determines whether Plaintiff has complied with Rule 11 of the Federal

Rules of Civil Procedure, which requires that pleadings be signed. Plaintiff failed to sign the

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Complaint. See ECF 2. Under Rule 11, courts are required to strike an unsigned pleading. Fed. R.

Civ. P. 11(a). Accordingly, the Complaint is stricken.

3. Screening Pursuant to 28 U.S.C. § 1915(e)(2)

This Court now turns to the required screening. As noted above, any complaint filed by a

plaintiff proceeding IFP is subject to sua sponte dismissal by the court to the extent the complaint

contains claims which are frivolous, malicious, fail to state a claim upon which relief may be

granted, or seek monetary relief from a defendant immune from such relief. 28 U.S.C. §

1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam); Lopez, 203

F.3d at 1127 (“[S]ection 1915(e) not only permits but requires a district court to dismiss an in

forma pauperis complaint that fails to state a claim.”).

Plaintiff’s Complaint fails to state a claim upon which relief may be granted. Plaintiff is

not required to make detailed factual allegations, but “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at

678. Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Id. (quoting Bell Atl. Corp., 550 U.S. at 570 ). Facial plausibility

demands more than the mere possibility that a defendant committed misconduct Id. at 679.

Here, the Complaint contains “introduction” and “argument” sections and makes many

legal conclusions throughout, as if it were a legal brief. Courts need not credit legal conclusions

that are couched as factual allegations. Id. at 678–79. Plaintiff is advised to limit any amended

complaint to factual allegations. Further, the Complaint contains emails, photographs, tables, and

other exhibits within the body of the Complaint. It is not necessary to attach exhibits to the

Complaint or any amended complaint. A complaint must sufficiently state the facts and claims

PAGE 9 – OPINION AND ORDER GRANTING PLAINTIFF’S IFP APPLICATION,

without reference to exhibits. If Plaintiff chooses to submit an amended complaint and that

complaint references any exhibits, those exhibits must be attached at the end of the complaint.

Plaintiff is further advised that an amended complaint needs to specify “which wrongs

were committed by which defendants.” See McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir.

1996). Plaintiff must link the factual allegations to specific defendants. Plaintiff must allege in

any amended complaint how each defendant is responsible for the allegedly wrongful permits,

destruction of the dam, or any other wrong. As it currently stands, this Court is unable to

determine whether Plaintiff has sued the correct defendants, as opposed to the government

entities or actors involved in the dam removal approval process and dam removal process.

B. Motion for Preliminary Injunction and Temporary Restraining Order

Plaintiff also moved for a preliminary injunction and temporary restraining order

(“TRO”), ECF 3. Plaintiff’s TRO request fails for the reasons described in the subject matter

jurisdiction section above. Namely, Plaintiff’s TRO request fails to establish standing and

irreparable harm to Plaintiff or to any purported class member.

A plaintiff seeking a preliminary injunction must establish: (1) a likelihood of succeed on

the merits; (2) a likelihood that plaintiff will suffer irreparable harm in the absence of

preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in

the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). “The standard for

issuing a temporary restraining order is identical to the standard for issuing a preliminary

injunction.” Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320,

1323 (N.D. Cal. 1995); see also Stuhlbarg Int’l Sales Co. v. John D. Brushy & Co., 240 F.3d

832, 839 n.7 (9th Cir. 2001) (standards for issuing a TRO are “substantially identical” to those

for issuing a preliminary injunction). To meet the “irreparable harm” requirement, Plaintiff must

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do more than simply allege imminent harm; he must demonstrate it. Caribbean Marine Servs.

Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1998).

To the extent Plaintiff seeks a TRO without notice upon an adverse party, he cannot yet

proceed with such an extraordinary request, for his submission fails to set out “specific facts in

an affidavit or a verified complaint [which] clearly show that immediate and irreparable injury,

loss, or damage will result . . . before the adverse party can be heard in opposition.” Fed. R. Civ.

P. 65(b)(1)(A); Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (“[I]njunctive relief is ‘to

be used sparingly, and only in a clear and plain case.’”) (quoting Rizzo v. Goode, 423 U.S. 362,

378 (1976)). As described above, notice by email and CM/ECF is insufficient. Plaintiff is

advised that he must immediately serve any future motion for injunctive relief on all defendants

and provide proof of service to the Court.

CONCLUSION

Plaintiff’s Application for Leave to Proceed In Forma Pauperis, ECF 2, is GRANTED.

Plaintiff’s Complaint, ECF 1, is DISMISSED without prejudice. Plaintiff is GRANTED leave to

amend his complaint; if Plaintiff chooses to amend his Complaint, he must do so by September

16, 2024. Plaintiff’s Motion for Preliminary Injunction and Temporary Restraining Order, ECF

3, is DENIED; if Plaintiff finds it appropriate to refile this motion, he may do so, but not before

filing an amended complaint.

IT IS SO ORDERED.

DATED this 26th day of August, 2024.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge

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