IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

GARY HIRSCH, and all others similarly situated 

whose interests are joined herein, 

Plaintiffs, 

v. 

KATE BROWN, Governor ofthe State of Oregon, 

Defendant. 

CLARKE, Magistrate Judge. 

Case No. 1:15-cv-01250-CL 

REPORT& 

RECOMMEDATION 

Plaintiff Gary Hirsch ("Plaintiff') seeks to proceed in forma pauperis ("IFP") in this 

action. For the reasons stated below, the Court recommends that Plaintiffs Complaint (#2) be 

DISMISSED without prejudice and his IFP application (#1) be DENIED as moot. 

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)(l), provides indigent litigants an opportunity for meaningful access to the 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 

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litigant is unable to pay the costs of commencing the action. 28 U.S.C. § 1915(a)(l). 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 from 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 the 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 At!. 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." !d. The Court is not 

required to accept legal conclusions, unsupported by alleged facts, as true. !d. 

Pro se pleadings are held to less stringent standards than pleadings by attorneys. Haines 

v. Kerner, 404 U.S. 519, 520-521 (1972). That is, the court should construe pleadings by prose 

plaintiffs liberally and afford the plaintiffs the benefits of any doubt. Karim-Panahi v. Los 

Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988) (citation omitted). Additionally, a prose 

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. !d. 

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DISCUSSION 

Plaintiff seeks a declaration that Oregon Senate Bill 941 is unconstitutional as well as a 

permanent injunction to prevent Defendant Governor Kate Brown ("Defendant") from enforcing 

it. Along with his Complaint, Plaintiff moves for a waiver of the required filing fee. In support of 

his motion, he cites two federal cases in which courts previously granted him IFP status. 

Plaintiff, however, has not filed a formal application to proceed IFP in this case. Without 

information on Plaintiffs income, debts, assets, etc., the Court cannot verify whether Plaintiff is 

unable to pay the costs of commencing this action as required by 28 U.S.C. § 1915(a)(l). 

Even assuming Plaintiff is indigent, his current claims should be dismissed for lack of 

standing. 28 U.S.C. § 1915(e)(2)(B). There are two strands of standing jurisprudence in federal 

court: "Article III standing, which enforces the Constitution's case-or-controversy requirement, 

and prudential standing, which embodies judicially self-imposed limits on the exercise of federal 

jurisdiction." Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (citations and 

internal quotations omitted). Plaintiffs Complaint fails under both strands. 

The "irreducible constitutional minimum of standing contains three elements[:]" (1) the 

plaintiff must have suffered an "injury in fact"; (2) "there must be a causal connection between 

the injury and conduct complained of'; and (3) "it must be 'likely' ... that the injury will be 

redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) 

(citations and internal quotations omitted). The Supreme Court has consistently defined an 

"injury in fact" as "an invasion of a legally protected interest which is . . . concrete and 

particularized ... and ... actual or imminent, not conjectural or hypothetical." Id. at 560 

(quotations and citations omitted). For an injury to be concrete and particularized, the plaintiff 

must show the alleged harm is particular to him and not shared equally with his fellow citizens. 

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See Lance v. Coffman, 549 U.S. 437, 440 (2007). Here, Plaintiff has not met the "injury in fact" 

test. His Complaint does not establish how Defendant's actions affected Plaintiff "in a personal 

and individual way" above and beyond the impact felt by Oregonians generally. Lujan, 504 U.S. 

at 561 n.l. Accordingly, Plaintifflacks Article III standing. 

Dismissal is also appropriate because of prudential considerations. "The prudential 

component of standing precludes the exercise of [subject-matter jurisdiction] even where the 

Constitution's 'irreducible minimum' requirements have been met." Or. Advocacy Ctr. v. Mink, 

322 F.3d 1101, 1108 (9th Cir. 2003). A court may refrain from "adjudicating abstract questions 

of wide public significance which amount to generalized grievances, pervasively shared and 

most appropriately addressed in the representative branches." Valley Forge Christian Col!. v. 

Ams. United for Separation of Church & State, 454 U.S. 464, 474-75 (1982). Here, Plaintiffs 

Complaint presents claims that would be better resolved through the political process. See Jewel 

v. Nat'! Sec. Agency, 673 F.3d 902, 909 (9th Cir. 2011) ("where large numbers of Americans 

suffer alike, the political process, rather than the judiciary process, may provide the more 

appropriate remedy for a widely shared grievance"). There is no evidence that Plaintiff has a 

more particularized stake in Defendant's actions than any other Oregonian asserting a 

generalized grievance. Because Plaintiffs alleged interest is shared by all citizens, he lacks 

prudential standing to bring his claims. 

The Court cannot say with certainty that none of Plaintiffs claims could be cured by 

amendment. Thus, his Complaint should be dismissed without prejudice to filing an amended 

I I I 

I I I 

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complaint. Should Plaintiff be given the opportunity to refile, he should be instructed to follow 

the standards set forth above. 

RECOMMENDATION 

Based on the foregoing, the Court recommends that Plaintiffs Complaint (#2) be 

DISMISSED without prejudice and his IFP application (#1) be DENIED as moot. 

This recommendation is not an order that is immediately appealable to the Ninth Circuit 

Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(l) 

should not be filed until entry of the district court's judgment or appealable order. 

The Report and Recommendation will be referred to a district judge. Objections to this 

Report and Recommendation, if any, are due fourteen (14) days from today's date. If an 

objection is filed, any response to the objection is due within fourteen (14) days from the date of 

the objection. See FED. R. Crv. P. 72, 6. Parties are advised that the failure to file objections 

within the specified time may waive the right to appeal the District Court's order. Martinez v. 

Ylst, 951 F.2d 1153 (9th Cir. 1991). 

United States Magistrate Judge 

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