IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JAMES M. HOUSTON, 

Plaintiff, 

v. 

OREGON DEPT. OF JUSTICE, 

et al., 

Defendants. 

AIKEN, Chief Judge: 

Case No. 6:15-02247-AA 

OPINION AND ORDER 

Plaintiff moves to proceed in forma pauperis (filed December 

1, 2015). Upon examination of plaintiff's affidavit, the court 

finds that plaintiff is unable to afford the cost of this action. 

Accordingly, IT IS ORDERED that the provisional in forma pauperis 

status given plaintiff is confirmed. This action may go forward 

without the payment of fees. However, plaintiff's petition fails to 

establish federal jurisdiction and this action is dismissed. 

1 - OPINION AND ORDER 

Case 6:15-cv-02247-AA Document 7 Filed 12/02/15 Page 1 of 5
Plaintiff filed a "Petition for Declaratory Judgment to 

Determine Constitutionality of Agency Rule or Statute" and seeks a 

temporary restraining order enjoining an administrative hearing 

before the State of Oregon Office of Administrative Hearings in a 

matter brought by the State of Oregon Teacher Standards and 

Practices Commission (TSPC). The hearing, requested by plaintiff, 

is scheduled to commence on December 7, 2015. Despite the fact that 

plaintiff requested this hearing, he seeks to enjoin it pending 

"judicial review" of TSPC' s authority to "overrule" the findings of 

the assigned Administrative Law Judge (ALJ). Pet. at 5. Plaintiff's 

alleges that this authority could violate his rights to procedural 

due process and equal protection, if the ALJ finds in his favor and 

the TSPC nevertheless "vetoes" such findings. 

Federal law authorizes federal courts to review cases filed in 

forma pauper is to determine if the complaint is "frivolous or 

malicious'' or "fails to state a claim upon which relief may be 

granted." 28 U.S.C. § 1915(e) (2) (B). If the court finds that the 

complaint lacks an arguable basis in law or fact or fails to state 

a claim, the court may dismiss the action. Id.; see also Neitzke v. 

Williams, 490 U.S. 319, 328 (1989). The court must liberally 

construe a prose plaintiff's complaint and permit amendment unless 

the deficiencies cannot be cured. Lopez v. Smith, 203 F.3d 1122, 

1131 (9th Cir. 2000) (en bane). Upon review of plaintiff's 

petition, its deficiencies cannot be cured. 

2 - OPINION AND ORDER 

Case 6:15-cv-02247-AA Document 7 Filed 12/02/15 Page 2 of 5
Plaintiff names three State of Oregon agencies as defendants. 

However, the relevant statute, 42 U.S.C. § 1983, does not authorize 

such suits against the State; rather, a plaintiff may file suit 

against a "person" acting "under color" of state law to vindicate 

the alleged violation of federal constitutional rights. Although a 

"person" under § 1983 may include a municipality, it does not 

encompass a state or its instrumentalities. Moreover, the Eleventh 

Amendment prohibits plaintiff from suing the State of Oregon or its 

instrumentalities in federal court, unless the State has given 

unequivocal consent to be sued or Congress has abrogated that 

immunity. Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 

540-542 (2002); Will v. Mich. Dep't of State Police, 491 U.S. 58, 

66 (1989); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 

97-101 (1984). Therefore, plaintiff's claims against State of 

Oregon agencies cannot proceed. 

Further, I find that amendment of plaintiff's complaint would 

be futile. Plaintiff's due process and equal protection allegations 

pertain to a pending administrative action brought by TSPC. Thus, 

plaintiff essentially seeks improper federal court interference 

with or invalidation of pending State of Oregon proceedings that 

implicate important state interests. Gilbertson v. Albright, 381 

F.3d 965, 971-73, 975 (9th Cir. 2004) (en bane). However, ''federal 

courts should abstain from intervening in pending state judicial 

proceedings out of deference to the interests of comity and 

3 - OPINION AND ORDER 

Case 6:15-cv-02247-AA Document 7 Filed 12/02/15 Page 3 of 5
federalism." Kleenwell Biohazard Waste & General Ecology 

Consultants, Inc. v. Nelson, 48 F.3d 391, 393 (9th Cir. 1995). 

Here, I find that plaintiff's requests for an injunction and 

declaratory relief would interfere directly with pending state 

administrative proceedings involving plaintiff; therefore, 

abstention is appropriate. Gilbertson, 381 F.3d at 975. 

Regardless, plaintiff's so-called constitutional claims are 

not ripe for review, thus divesting this court of subject matter 

jurisdiction. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th 

Cir. 1999) ("Whether a claim is ripe for adjudication goes to a 

court's subject matter jurisdiction under the case or controversy 

clause of article III of the federal Constitution.•). Plaintiff 

does not allege that he has been deprived of a protected liberty or 

property interest; he alleges only that he may be deprived of such 

interest in the course of the TSPC proceedings. Specifically, 

plaintiff asserts that he is "attempting to prevent a miscarriage 

of justice that may lead to the violation• of his constitutional 

rights, and that the court should "halt the proceedings before harm 

is done." Pet.' s Mem. 2-3 (emphasis added) . Thus, plaintiff's 

allegations rest on a certain outcome of the yet-to-be-held 

administrative proceedings. However, "[a] claim is not ripe for 

adjudication if it rests upon 'contingent future events that may 

not occur as anticipated, or indeed may not occur at all. 1 • Texas 

v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union 

4 - OPINION AND ORDER 

Case 6:15-cv-02247-AA Document 7 Filed 12/02/15 Page 4 of 5
Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)). Plaintiff 

alleges no current injury-in-fact, and no case or controversy 

exists between the parties that is ripe for review. 

As an aside, to the extent plaintiff alleges the deprivation 

of procedural due process, his filings reflect that plaintiff has 

been given notice and will have an opportunity to be heard 

regarding his interests. See Fuentes v. Shevin, 407 U.S. 67, 80 

(1972) (procedural due process requires notice and an opportunity 

to be heard "at a meaningful time and in a meaningful manner"). 

Generally, a pro se plaintiff is given the opportunity to 

amend a complaint and cure any deficiencies identified by the 

court. However, for the reasons explained above, the deficiencies 

cannot be cured in this case. 

CONCLUSION 

Accordingly, for the reasons set forth above, plaintiff's 

request for temporary restraining order is DENIED and this case 

DISMISSED. 

IT IS SO ORDERED. ~ 

Dated this ~ day of December, 2015. 

Ann Aiken 

United States District Judge 

5 - OPINION AND ORDER 

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