IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LUTHER RAYMOND ALSPACH, 

Plaintiff, 

v. 

MRS. X WILCOX, CASEY SPARTZ, 

ANITA BURDICK DENHAM, and 

SEQUOIA MENTAL HEALTH 

SERVICES, INC., 

Defendant. 

PAP AK, Magistrate Judge: 

3:14-cv-01493-PK 

FINDINGS AND 

RECOMMENDATION 

Plaintiff Luther Raymond Alspach filed this pro se action in Jonna pauperis against 

defendants Mrs. X Wilcox, Casey Sparts, Anita Burdick Denham, and Sequoia Mental Health 

West & East. 

Alspach's claim lacks clarity as to the factual and legal foundations for his alleged 

injuries. On October 17, 2014, I issued an order to show cause (#10) as to this comt's 

jurisdiction and the nature of Alspach's claims. Having received only one filing that does not 

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directly respond to that order, I find that Alspach has failed to show cause and his claims should 

be dismissed without prejudice for lack of subject matter jurisdiction. 

Analysis of the allegations contained in Alspach' s complaint highlights two salient 

issues: (1) whether Alspach was abandoned or "banished" by individuals employed by Sequoia 

Mental Health Services ("SMHS") for an extended period; and (2) whether this court has 

jurisdiction over SMHS employees. 

In Alspach's November 7 filing, which I do not constrne as a direct response to the order 

to show cause, he describes additional facts on the reverse side of a piece of receipt paper. He 

alleges that unnamed individuals "refused to open doors of Sequioa building at 8:00am" and that 

those individuals instead "would open at 8:30am only!" Notice, #10, 1. Whether this is intended 

to describe the nature of Alspach's alleged abandonment is questionable, as his complaint alleges 

being abandoned for a 28-day period. Thus, the facts smrnunding Alspach's banishment remain 

unclear. More impo1tantly, however, Alspach has failed to show cause as to why employees of 

SMHS are within this court's jurisdictional reach. 

The federal courts are courts oflimited jurisdiction. See, e.g., Exxon }vfobil C01p. v. 

Allapattah Servs., 545 U.S. 546, 552 (2005). As such, the cou1ts presume that causes of action 

"lie[] outside this limited jurisdiction, and the burden of establishing the contra1y rests upon the 

party asse1tingjurisdiction." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 

(1994); see also, e.g., Vacekv. United States Postal Serv., 447 F.Jd 1248, 1250 (9th Cir. 2006). 

The complaint of a prose plaintiff is to be construed liberally when analyzing subject matter 

jurisdiction. Wolfe v. Strankman, 392 F.Jd 358, 362 (9th Cir. 2004). 

Federal Rule of Civil Procedure 12(h)(3) provides that, "[i]fthe cou1t determines at any 

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time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 

12(h)(3); see also Watkins v. Vital Phann., Inc., 720 F.3d 1179, 1181 (9th Cir. 2013) ("[I]t is 

well established that district comis may address questions of subject matter jurisdiction sua 

sponte."). Moreover, in connection with informa pauperis actions such as this, the district 

coutis are obliged to dismiss sua sponte actions failing to state a claim upon which relief can be 

granted: "Notwithstanding any filing fee, or any po1iion thereof, that may have been paid, the 

comi shall dismiss the case at any time if the court detennines that ... the action ... fails to state 

a claim on which relief may be granted." 28 U.S.C, § 1915(e)(2). 

Here, although Alspach's allegations are not entirely clear, it appears that his claims are 

brought under 42 U.S.C. § 1983 against employees ofSMHS, a private Oregon non-profit. "To 

state a claim under§ 1983, a plaintiff must allege two essential elements: (1) that a right secured 

by the Constitution or laws of the United States was violated, and (2) that the alleged violation 

was committed by a person acting under color of State law." Long v. Cty. of L.A., 442 F.3d 1178, 

1185 (9th Cir. 2006). Because Alspach does not allege that SMHS is acting under color of State 

law or is so connected to state functions as to render it a constructively public entity, I find that 

Alspach's claims should be dismissed for lack of subject matter jurisdiction. 

A case is properly dismissed for lack of subject matter jurisdiction when the comi lacks 

the statutory or constitutional power to adjudicate the case. See, e.g., Home Builders Ass'n v. 

City oflv!adison, 143 F.3d 1006, 1010 (5th Cir. 1998); Nowakv. Ironworkers Local 6 Pension 

Fund, 81F.3d1182, 1187 (2nd Cir. 1996). "Ordinarily, a case dismissed for lack of subject 

matter jurisdiction should be dismissed without prejudice so that a plaintiff may reasse1t his 

claims in a competent comt." Frigardv. United States, 862 F.2d 201, 204 (9th Cir. 1988) 

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(citation omitted); Watkins v. Proulx, et al., 235 Fed. Appx. 678, 679 (9th Cir. 2007) (remanding 

a district court's dismissal of an action based on subject matter jurisdiction with prejudice). 

However, where no other coutt has the power to hear the case, dismissal with prejudice is 

appropriate. See id. 

I note that, in light of the nature of Alspach' s filings, I have concerns regarding his 

competency. Neve1theless, I have given Alspach a chance to cure the deficiencies in his 

complaint, and, even construing the complaint and his responses to the order to show cause in the 

light most favorable to him, I am unable to conclude that this coutt has subject-matter 

jurisdiction or that Alspach has stated valid a claim for relief. Additionally, I do not reach the 

merits on Alspach's abandonment claim, and a court of general jurisdiction, such as a state 

circuit court, likely has the power to hear this case. Thus, I recommend that the district couti 

dismiss Alspach's complaint without prejudice. 

CONCLUSION 

Based on the foregoing, Alspach's complaint (#2) should be dismissed without prejudice 

and a final judgment should be prepared. 

SCHEDULING ORDER 

The Findings and Recommendation will be referred to a district judge. Objections, if any, 

are due fourteen (14) days from service of the Findings and Recommendation. If no objections 

are filed, then the Findings and Recommendation will go under advisement on that date. If 

objections are filed, then a response is due foutieen (14) days after being served with a copy of 

the objections. When the response is due or filed, whichever date is earlier, the Findings and 

Recommendation will go under advisement. 

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Case 3:14-cv-01493-PK Document 13 Filed 11/19/14 Page 4 of 5
NOTICE 

A party's failure to timely file objections to any of these findings will be considered a 

waiver of that pmiy's right to de novo consideration of the factual issues addressed herein and 

will constitute a waiver of the party's right to review of the findings of fact in any order or 

judgment entered by a district judge. These Findings and Recommendation are not immediately 

appealable to the Ninth Circuit Court of Appeals, Any notice of appeal pursuant to Rule 4(a)(l) 

of the Federal Rules of Appellate Procedure should not be filed until entry of judgment. 

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