IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RENEE ANDRE STEPHENS, 

Plaintiff, No. 03:15-cv-00709-HZ

v.

OREGON DRIVER & MOTOR VEHICLE

SERVICES DIVISION (DMV), a Division of the 

Oregon State Department of Transportation, OPINION & ORDER

Defendant.

Renee A. Stephens

7135 SW 54th Avenue

Portland, Oregon 97219

Plaintiff Pro Se

HERNANDEZ, District Judge:

Pro se plaintiff Renee Andre Stephens brings this action against the Oregon Driver and

Motor Vehicles Division (DMV). Plaintiff moves to proceed in forma pauperis. Because

Plaintiff has no appreciable income or assets, I grant the motion. However, for the reasons

1 - OPINION & ORDER

Case 3:15-cv-00709-HZ Document 4 Filed 05/09/15 Page 1 of 5
explained below, I dismiss the Complaint.

STANDARDS

A complaint filed in forma pauperis may be dismissed at any time, including before

service of process, if the court determines that:

(A) the allegation of poverty is untrue; or

(B) the action or appeal–

(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) (sua sponte

dismissals under section 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) (section 1915(e) applies to all in forma pauperis complaints, not

just those filed by inmates). 

DISCUSSION

I. Allegations

Plaintiff alleges that the DMV suspended his driver's license in January 2015 after

determining that Plaintiff had supplied the DMV with false information. Compl. at p. 3. 

Although not entirely clear, it appears that Plaintiff contends that the information relied on was

not false but was purposefully tampered with by the DMV. Id. Plaintiff contends that he has

suffered the loss of his driving privileges as a United States citizen due to "fraud at the DMV"

and that the "DMV has betrayed a public trust by tampering with an official record." Id. 

The asserted basis for federal court jurisdiction is the Fourteenth Amendment of the

2 - OPINION & ORDER

Case 3:15-cv-00709-HZ Document 4 Filed 05/09/15 Page 2 of 5
United States Constitution and 18 U.S.C. § 1028. Id. As relief, Plaintiff requests that this Court

empanel a grand jury to investigate the DMV's potential violations of 18 U.S.C. § 1028. Id. at 5. 

II. Discussion

I interpret the Complaint as attempting to bring a claim under 42 U.S.C. § 1983 for an

alleged due process violation under the Fourteenth Amendment. Although Plaintiff does not

mention the due process clause, his allegation that he has been deprived of a driver's license

suggests that the due process clause is the appropriate basis for his claim. Plaintiff does not cite

to section 1983, but because that statute supplies the cause of action for an alleged federal

constitutional violation, Gonzaga University v. Doe, 536 U.S. 273, 285 (2002), I construe the

Complaint as incorporating it. I further interpret the Complaint as attempting to bring a claim

under 18 U.S.C. § 1028, a federal criminal statute providing for fines or imprisonment or both for

certain fraudulent conduct in connection with identification documents.

With this understanding of Plaintiff's claims, I dismiss the Complaint. The Eleventh

Amendment bars a citizen from bringing suit against a state, or state agency or department, in

federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984);

Micomonaco v. Wash., 45 F.3d 316, 319 (9th Cir. 1995). Thus, any claims against the DMV, the

only named Defendant, are barred.

Even if Plaintiff were to name an individual DMV employee in an amended complaint,

the claims could not survive. The same Eleventh Amendment immunity that applies to a state

"also shields state officials from official capacity suits." Krainski v. Nev. ex rel. Bd. of Regents

of Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010). Although a plaintiff may seek

"prospective declaratory or injunctive relief against state officers in their official capacities," Los

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Case 3:15-cv-00709-HZ Document 4 Filed 05/09/15 Page 3 of 5
Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992), Plaintiff does not seek

declaratory or injunctive relief. Instead, he requests that the Court empanel a grand jury to

investigate possible criminal violations by the DMV. Thus, even if Plaintiff were to name an

individual employee as a Defendant, the relief he seeks is barred by Eleventh Amendment

immunity. Further, because criminal statues do not give rise to any civil liability, Allen v. Gold

Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006), an allegation that the DMV's violation of

section 1028 somehow violated Plaintiff's due process rights does not state a claim. 

Finally, I interpret Plaintiff's request that this Court "empanel" a grand jury as a request

that the Court order a grand jury investigation into the DMV's conduct. That authority, however,

rests with the executive branch, not this Court. See United States v. Conces, No. 1:05-CV-739,

2006 WL 356929, at *4 (W.D. Mich. Feb. 15, 2006) (denying "request for a grand jury" because

the court lacked the power to initiate a grand jury investigation into the defendant's claim of

fraud) (citing Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("[T]he decision whether or not

to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in [the

prosecutor's] discretion"; Bonner v. Family Independence Agency, No. 04-74574, at *8 (E.D.

Mich. Dec. 20, 2005) ("This court cannot initiate a grand jury investigation. Such decisions rest

entirely with the executive branch, namely, the United States Attorney"). 

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CONCLUSION

Plaintiff's motion to proceed in forma pauperis [1] is granted. The Complaint is

dismissed with prejudice.

IT IS SO ORDERED.

Dated this day of , 2015

 

Marco A. Hernandez

United States District Judge

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