Newcomb v. State of Oregon

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ROBERT JOSEPH NEWCOMB, JR., Case No. 3:25-cv-00451-IM

Plaintiff, OPINION AND ORDER GRANTING

APPLICATION FOR LEAVE TO

v. PROCEED IN FORMA PAUPERIS

AND DISMISSING COMPLAINT

STATE OF OREGON,

Defendant.

Robert Joseph Newcomb, Jr., Clackamas, OR 97015. Pro se.

IMMERGUT, District Judge.

Before this Court is Plaintiff Robert Joseph Newcomb’s Application to Proceed In Forma

Pauperis, ECF 1. Plaintiff has shown an inability to prepay fees and costs or give security for

them. This Court thus grants Plaintiff’s application to proceed in forma pauperis (“IFP”)

pursuant to 28 U.S.C. § 1915(a). However, this Court also dismisses Plaintiff’s Complaint

without leave to amend because it fails to state a claim on which relief may be granted. See id.

§ 1915(e)(2).

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 & Cnty. of S.F., 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 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 must, however, 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.” Erickson v. Pardus, 551 U.S.

89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). 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).

BACKGROUND1

Plaintiff is a defendant in a criminal case in Multnomah County Circuit Court that has

been pending since November 2023. Complaint (“Compl.”), ECF 2 at 6. That month, Plaintiff

was cited for two class C felonies: Unauthorized Use of a Vehicle in violation of O.R.S. 164.135

and Possession of a Stolen Vehicle in violation of O.R.S. 819.300. Id.; Docket, State v.

Newcomb, No. 23CR57456 (Multnomah Cnty. Cir. Ct. filed Nov. 27, 2023) (“Circuit Ct.

Docket”). Plaintiff has not been arraigned. Compl., ECF 2 at 6. Plaintiff failed to appear at

arraignments set for December 2023, February 2024, June 2024, and February 2025. Circuit Ct.

Docket. Plaintiff “do[es] not deny being unable to appear in the hearings [he] was summoned

to.” Compl., ECF 2 at 7. Plaintiff alleges that he was unable to appear at these hearing because

he was hospitalized for emergency surgery, suffering from an infection, or in recovery. Id. at 8.

Plaintiff alleges that the government “has continued to set court dates that are too frequent” and

disruptive to his life. Id.

Plaintiff did appear for arraignment hearings in April 2024, February 2025, and March

2025. Circuit Ct. Docket. Each time, Plaintiff was assigned an arraignment attorney who verbally

moved for dismissal, the prosecutor objected, and the judge denied the motion and set a future

arraignment date. Compl., ECF 2 at 10–11.

Plaintiff alleges that he does not have representation for his criminal charges. Id. at 6–7.

Plaintiff states that he has qualified for a public defender but none has been appointed. Id. at 10.

1 The following facts are taken from Plaintiff’s Complaint. This Court also takes judicial

notice of the Multnomah County Circuit Court docket for Plaintiff’s criminal case, including

Plaintiff’s citation, failures to appear, and hearing dates. See Fed. R. Evid. 201; Lee v. City of

L.A., 250 F.3d 668, 689–90 (9th Cir. 2001) (holding courts can take judicial notice of undisputed

matters of public record).

Plaintiff alleges that if he had counsel, it would have been easier to communicate with the

government. Id. at 9.

Plaintiff states that he is without information about the charges and so he is unable to

defend his innocence. Id. at 9. Plaintiff has requested discovery but not received a response. Id.

at 11.

Plaintiff filed his Complaint on March 17, 2025. ECF 2. He requests that this Court

remove his state court action to federal court and dismiss the charges with prejudice for

violations of several of his Sixth Amendment rights, as well as his Fourteenth Amendment rights

to due process and equal protection. Id. at 12.

DISCUSSION

This Court first addresses Plaintiff’s Motion to Proceed IFP and then turns to the merits.

A. Motion to Proceed IFP

This Court finds that Plaintiff is “unable to pay” the filing fee or “give security therefor.”

28 U.S.C. § 1915(a)(1). While Plaintiff did not provide information regarding his prior

employment, IFP Application, ECF 1 at 2, this Court finds that the remainder of Plaintiff’s

application demonstrates his lack of assets. Plaintiff’s IFP application is therefore granted.

B. Sua Sponte Dismissal

This Court now turns to the required screening. Plaintiff alleges Sixth and Fourteenth

Amendment claims. Compl., ECF 2 at 3. Addressing each in turn, this Court finds that Plaintiff’s

Complaint fails to state a claim upon which relief may be granted.2 Alternatively, the relief that

2 This Court also notes that the State of Oregon is immune from suit in federal court

pursuant to Eleventh Amendment immunity. Delong Corp. v. Or. State Hwy. Comm’n, 343 F.2d

911, 912 (9th Cir. 1965). This Court construes Plaintiff’s Complaint to be against an appropriate

enforcement official.

Plaintiff requests is unavailable, both because this case is not removable and because this Court

is required to abstain under Younger v. Harris, 401 U.S. 37 (1971).

1. Sixth Amendment Claims

Plaintiff brings claims for violations of his Sixth Amendment rights to a speedy trial,

notice of the charges against him, confrontation of witnesses, compulsory process, and legal

counsel. Compl., ECF 2 at 3.

a. Right to Counsel

The Sixth Amendment guarantees indigent defendants the fundamental right to “the aid

of counsel in a criminal prosecution.” Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (citation

omitted). This right attaches “at or after the time that judicial proceedings have been initiated

against him whether by way of formal charge, preliminary hearing, indictment, information, or

arraignment.” Brewer v. Williams, 430 U.S. 387, 398 (1977) (citation omitted). Once the right

attaches, the defendant “is entitled to the presence of appointed counsel during any ‘critical

stage’ of the postattachment proceedings” at minimum. Rothgery v. Gillespie Cnty., 554 U.S.

191, 212 (2008). A stage is critical if the presence of counsel would alleviate the “potential

substantial prejudice to defendant’s rights [that] inheres in the particular confrontation.” United

States v. Wade, 388 U.S. 218, 227 (1967).

Plaintiff fails to allege an absence of counsel at critical stages. See Betschart v. Garrett,

700 F. Supp. 3d 965, 985–86 (D. Or. 2023). Plaintiff is not in custody and has not alleged that

his release is subject to any conditions other than a requirement to appear. See generally Compl.,

ECF 2. Plaintiff has also had representation at every hearing he has attended. Id. at 10–11.

Plaintiff therefore cannot state a claim for a denial of his right to counsel.

b. Right to Speedy Trial

The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial.”3 Whether a defendant states a claim for a violation

of this right depends on the court’s balancing of four factors: the length of the delay, the reason

for the delay, the time and manner in which the defendant has asserted his right during the

criminal proceeding, and the degree of prejudice to the defendant in the criminal proceeding.

Barker v. Wingo, 407 U.S. 514, 530–32 (1972). As to the first factor, “courts generally have

found that delays approaching one year are presumptively prejudicial.” United States v. Myers,

930 F.3d 1113, 1119 (9th Cir. 2019) (citation omitted). Plaintiff fails, however, to allege facts to

satisfy the remaining factors.

As to the second factor, Plaintiff has not alleged a nefarious reason for the delay, such as

a “deliberate attempt to delay the trial in order to hamper the defense.” Barker, 407 U.S. at 531.

The delay here seems to be caused, at least in part, by Plaintiff’s repeated failure to appear.

Regarding the third factor, Plaintiff has not alleged that he asserted this specific right at his state

hearings, although he alleges that his attorney has moved for dismissal based on a violation of

the Sixth Amendment generally. Compl., ECF 2 at 10. But Plaintiff’s allegations that his court

dates are “too frequent,” id. at 8, “undermine[s]” his assertions of this right. McNeely v. Blanas,

336 F.3d 822, 831 (9th Cir. 2003). Finally, as to prejudice, Plaintiff is not in custody and his

allegations suggest only minimal prejudice. Accordingly, Plaintiff fails to state a viable Sixth

Amendment speedy-trial claim.

3 To the extent Plaintiff’s Complaint alleges an analogous state law claim, “Oregon law

does not require an expeditious trial schedule” for released defendants. Betschart, 700 F. Supp.

3d at 986.

c. Right to Confront Witnesses

The Confrontation Clause of the Sixth Amendment states: “In all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The

Confrontation Clause “provides two types of protections for a criminal defendant: the right

physically to face those who testify against him, and the right to conduct cross-examination.”

Coy v. Iowa, 487 U.S. 1012, 1017 (1988) (citation omitted). “[T]he Confrontation Clause is

primarily a trial right.” Peterson v. California, 604 F.3d 1166, 1170 (9th Cir. 2010).

Plaintiff fails to state a claim for any violation of the Confrontation Clause. Plaintiff

alleges that he has not yet been tried, and thus no right has been infringed. The crux of Plaintiff’s

Complaint appears to be that he has not received any evidence or information pertaining to his

charges, but such allegations do not give rise to a Confrontation Clause violation.

d. Compulsory Process

The Sixth Amendment guarantees a criminal defendant the right “to have compulsory

process for obtaining witnesses in his favor.” To state a claim for a violation of his compulsory

process right, Plaintiff must plead: “(1) that [the government]’s alleged conduct amounts to

‘substantial government interference’ with a defense witness; (2) that [the government]’s

conduct caused [a defense witness] not to testify; and (3) that [this witness]’s testimony would

have been favorable and material.” Soo Park v. Thompson, 851 F.3d 910, 919 (9th Cir. 2017). A

similar right is protected by the Fourteenth Amendment’s Due Process Clause, which likewise

“guarantees criminal defendants a meaningful opportunity to present a complete defense.” Crane

v. Kentucky, 476 U.S. 683, 690 (1986).

Plaintiff simply alleges his “[r]ight to compulsory process for obtaining witnesses” as one

of the bases for federal jurisdiction. Compl., ECF 2 at 3. This conclusory allegation is

insufficient. Plaintiff does not allege the existence of any favorable witness or government

interference. To the extent he is seeking the government’s evidence against him, Plaintiff is not

entitled to such evidence before he has been formally charged.

e. Right to Be Informed of Charges

“The Sixth Amendment guarantees a criminal defendant the fundamental right to be

informed of the nature and cause of the charges made against him so as to permit adequate

preparation of a defense.” Gautt v. Lewis, 489 F.3d 993, 1002 (9th Cir. 2007). “To determine

whether a defendant has received fair notice of the charges against him, the court looks first to

the information. The principal purpose of the information is to provide the defendant with a

description of the charges against him in sufficient detail to enable him to prepare his defense.”

James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994) (citations omitted).

Plaintiff fails to state a claim for any denial of this right. Plaintiff alleges that he has been

“cited for two felony charges of unauthorized use of a motor vehicle and unlawful possession of

a motor vehicle” but he is “left completely in the dark unaware of any specifics of the charges.”

Compl., ECF 2 at 6. This claim is premature. The right to notice primarily serves to ensure

defendants are able to adequately prepare for trial by protecting them from being convicted on

charges or theories they are unaware of beforehand. See, e.g., Gautt, 489 F.3d at 1008 (finding a

violation where the defendant was convicted of a different crime than he was charged with);

Sheppard v. Rees, 909 F.2d 1234, 1237 (9th Cir. 1990) (finding notice inadequate when legal

theory was first advanced after both sides had rested at trial). At this stage of the case, Plaintiff

cannot allege that any lack of notice has inhibited his ability to prepare a defense at trial.

2. Fourteenth Amendment Claims

Plaintiff alleges violations of the Fourteenth Amendment Equal Protection and Due

Process Clauses. Compl., ECF 2 at 9–10. He alleges that the government’s failure to arraign or

indict him for two years violates his rights under both clauses. Id. He also alleges that he has not

heard about a grand jury or been given the opportunity to testify in front of one. Id.

As to the lack of indictment and grand jury proceedings, there is no federally protected

right to indictment by a grand jury in state criminal proceedings. Alexander v. Louisiana, 405

U.S. 625, 633 (1972). Moreover, the Oregon Constitution permits the prosecution of a felony

based on an information “if the defendant has received a preliminary hearing or has waived the

right to an indictment or preliminary hearing.” State v. Kuznetsov, 215 Or. App. 533, 539 (2007),

aff’d, 345 Or. 479 (2008); see Or. Const. art. VII (Amended), § 5(3)–(5). Even if the government

chose to empanel a grand jury for Plaintiff’s criminal case, he would have no right to appear

before it. United States v. Fritz, 852 F.2d 1175, 1178 (9th Cir. 1988).

Plaintiff’s due process claims also fail. A procedural due process claim has three

elements: “(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the

interest by the government; (3) lack of process.” Armstrong v. Reynolds, 22 F.4th 1058, 1066

(9th Cir. 2022) (citation omitted). Here, Plaintiff has failed to plead a procedural due process

claim. Plaintiff is not in custody, see generally Compl., ECF 2, and so the liberty interest is

limited compared to if he were to be detained pretrial. Betschart v. Garrett, 700 F. Supp. 3d 965,

987 (D. Or. 2023). He also does not sufficiently explain what added safeguards would protect his

interest. Although he suggests that appointment of counsel would make it easier to communicate

with the government, Compl., ECF 2 at 9, it is not clear what difference that would make at this

stage of the case, before the government has formally commenced proceedings. To the extent

Plaintiff alleges prejudicial delay, he has a procedural remedy in state court “by raising a motion

to dismiss for lack of speedy trial.” Betschart, 700 F. Supp. 3d at 987.

As to substantive due process, Plaintiff has alleged only “the minimal restriction to re-

appear,” which is not “the sort of ‘fundamental’ liberty deprivation at the heart of a [substantive]

due process claim.” Id. at 986. He thus fails to state a substantive due process claim.

Plaintiff fails to adequately allege an equal protection claim for similar reasons. The

Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deny to

any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

Plaintiff’s allegation that he is an indigent, out-of-custody defendant that is deprived of counsel

does not amount to the deprivation of a fundamental interest protected by the Equal Protection

Clause. See Betschart, 700 F. Supp. 3d at 986–87.

3. Relief Requested

Plaintiff requests that this Court remove his state court action to federal court. Compl.,

ECF 2 at 12. Even if Plaintiff stated a claim, this Court is unable to provide such relief.

State criminal cases can only be removed to federal court in extremely limited

circumstances. See 28 U.S.C. §§ 1442, 1442a, 1443. None of these circumstances arise here.

Section 1442 applies to removal of certain cases by federal officers. Plaintiff has not alleged that

he is a federal officer. Section 1442a applies to removal of certain cases by members of the

United States armed forces. Plaintiff has not alleged that he is a member of the armed forces.

As to removal under § 1443(1), Plaintiff must satisfy two criteria:

First, the petitioners must assert, as a defense to the prosecution,

rights that are given to them by explicit statutory enactment

protecting equal racial civil rights. Second, petitioners must assert

that the state courts will not enforce that right, and that allegation

must be supported by reference to a state statute or a constitutional

provision that purports to command the state courts to ignore the

federal rights. Bad experiences with the particular court in question

will not suffice.

California v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1970) (citations omitted). Plaintiff has not

identified any state law or constitutional provision that commands the state court to ignore his

federal rights. Moreover, the rights that Plaintiff asserts are not statutory, but instead spring from

the Sixth and Fourteenth Amendments. “Such rights are not within the coverage of section

1443.” Id.

For these reasons, and those discussed below regarding Younger abstention, removal is

not permitted by law.

a. Younger Abstention

Plaintiff also requests that this Court dismiss the pending state criminal proceedings

against him. Compl., ECF 2 at 12. This Court finds that Plaintiff’s claims are barred by Younger

v. Harris, 401 U.S. 37 (1971).

“[F]ederal courts should almost never enjoin state criminal proceedings.” Gilbertson v.

Albright, 381 F.3d 965, 975 (9th Cir. 2004) (en banc). Three factors must be met to justify

Younger abstention. The state proceeding “must be (1) ‘ongoing,’ (2) ‘implicate important state

interests,’ and (3) provide ‘an adequate opportunity . . . to raise constitutional challenges.’”

Herrera v. City of Palmdale, 918 F.3d 1037, 1044 (9th Cir. 2019) (quoting Middlesex Cnty.

Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, (1982)). The Ninth Circuit

explicitly imposes an additional requirement implicit in Middlesex: Even if all requirements are

met, a district court may only abstain under Younger if adjudication of “the federal action would

have the practical effect of enjoining the state proceedings.” Id.

Each of the Younger requirements is met in this case. First, Plaintiff’s state criminal

proceeding is ongoing. See generally Compl., ECF 2. Second, the state criminal proceedings

implicate important state interests. See Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“[T]he States’

interest in administering their criminal justice systems free from federal interference is one of the

most powerful of the considerations that should influence a court considering equitable types of

relief.”). Third, the state proceedings provide Plaintiff an adequate opportunity to raise his

claims, including trial and state appellate review. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,

15 (1987) (holding that federal courts should assume that state procedures will afford adequate

opportunity for consideration of constitutional claims “in the absence of unambiguous authority

to the contrary”). Fourth, dismissing Plaintiff’s criminal charges would have the practical effect

of enjoining the state proceedings.

Furthermore, Plaintiff has not clearly alleged any basis for applying any of the exceptions

to Younger abstention. He has not alleged facts showing “harassment or prosecutions undertaken

by state officials in bad faith without hope of obtaining a valid conviction” or any other

“extraordinary circumstances” here. Perez v. Ledesma, 401 U.S. 82, 85 (1971).

Accordingly, abstention under Younger is proper with respect to Plaintiff’s claims for

equitable relief pertaining to his state court proceeding. Plaintiff’s Complaint is dismissed

without leave to amend. See Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (holding

denial of leave to amend is appropriate where amendment would be futile).

CONCLUSION

Plaintiff’s Application for Leave to Proceed IFP, ECF 1, is GRANTED. Plaintiff’s in

forma pauperis status is revoked, however, because an appeal would not be taken in good faith.

See 28 U.S.C. § 1915(a)(3). Plaintiff’s Complaint, ECF 2, is DIMISSED without leave to amend.

IT IS SO ORDERED.

DATED this 25th day of March, 2025.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge