PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ROBERT BALL,

Plaintiff,

v.

NORTHWEST PILOT PROJECT; THE 

PATHWAYS PROGRAM,

Defendants.

Case No. 3:14-cv-01316-SI

OPINION AND ORDER

Robert Ball, 4715 E. Burnside #407, Portland, OR 97233. Pro se. 

Michael H. Simon, District Judge.

Plaintiff Robert Ball filed a pro se Complaint in forma pauperis on August 18, 2014. Dkt. 

2. Service of process has not yet occurred. Plaintiff has also filed an application to proceed in 

forma pauperis, Dkt. 1, and has moved for the appointment of a pro bono attorney. Dkt.3. The 

Court grants Plaintiff’s application to proceed in forma pauperis and denies Plaintiff’s motion 

for appointment of pro bono counsel. Under the liberal pleading standards afforded to pro se

plaintiffs, however, the Court finds that Plaintiff’s Complaint fails to state a claim on which 

relief may be granted. For the following reasons, Plaintiff’s Complaint is dismissed.

Case 3:14-cv-01316-SI Document 4 Filed 08/26/14 Page 1 of 6
PAGE 2 – OPINION AND ORDER

STANDARDS

A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the 

benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “A pro se 

litigant must be given leave to amend his or her complaint unless it is ‘absolutely clear that the 

deficiencies of the complaint could not be cured by amendment.’” Karim-Panahi v. L.A. Police 

Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th 

Cir. 1987), superseded on other grounds by statute as stated in Lopez v. Smith, 203 F.3d 1122 

(9th Cir. 2000)). Under Federal Rule of Civil Procedure 8(a)(2), however, every complaint must 

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” 

This standard “does not require ‘detailed factual allegations,’” but does demand “more than an 

unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting 

Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic 

recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. 

at 555).

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).

The federal courts are courts of limited jurisdiction. Gunn v. Minton, --- U.S. ---, 133 

S. Ct. 1059, 1064 (2013) (citation omitted). As such, a court is to presume “that a cause lies 

outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party 

Case 3:14-cv-01316-SI Document 4 Filed 08/26/14 Page 2 of 6
PAGE 3 – OPINION AND ORDER

asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) 

(citations omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe 

Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The Court must dismiss any 

case over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). The court has “an 

independent obligation to determine whether subject-matter jurisdiction exists, even in the 

absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). The 

court may therefore raise the question of subject-matter jurisdiction on its own initiative at any 

stage in the litigation. Arbaugh, 546 U.S. at 506. “If the court determines at any time that it lacks 

subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3) (emphasis 

added).

“Defective allegations of jurisdiction may be amended, upon terms, in the trial or 

appellate courts.” 28 U.S.C. § 1653. It is improper to dismiss an action based on a defective 

allegation of jurisdiction without leave to amend “unless it is clear, upon de novo review, that the 

complaint could not be saved by amendment.” Snell v. Cleveland, Inc., 316 F.3d 822, 828 n.6 

(9th Cir. 2002) (citing Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001)).

BACKGROUND

Plaintiff brings suit against the Northwest Pilot Project, a Portland, Oregon-based nonprofit organization, and the Pathways Program.

1

Plaintiff appears to make three separate claims 

in his pro se Complaint. Plaintiff first alleges “443 Housing Accommodations.”2 Next, Plaintiff 

 

1

The Court is unable to determine from the Plaintiff’s Complaint whether the Pathways 

Program is a separate entity or a program administered by the Northwest Pilot Project. Plaintiff’s 

Complaint provides no identifying information for the Pathways Program and Plaintiff alleges no 

separate claims against the entity. 

2

The Court understands Plaintiff’s statement in Section II.B of his Complaint regarding 

“443 Housing Accommodations” to be a reference to Or. Rev. Stat. § 443.

Case 3:14-cv-01316-SI Document 4 Filed 08/26/14 Page 3 of 6
PAGE 4 – OPINION AND ORDER

alleges that defendant created a hostile living environment. Finally, Plaintiff alleges that 

Defendant “created a situation where I could become homeless.” Plaintiff does not assert a basis 

for the Court’s jurisdiction in this matter. 

DISCUSSION

A. Jurisdiction

The two primary categories of civil cases over which the federal courts have jurisdiction 

are those based on federal law (federal question jurisdiction) and those involving citizens of 

different states where more than $75,000 is at issue (diversity jurisdiction). In Section II.A of his

Complaint, Plaintiff did not indicate whether a “Federal Question” or “Diversity of Citizenship” 

was the basis for federal court jurisdiction. In Section II.B of his Complaint, Plaintiff listed, “443 

Housing Accommodations,” “Hostile Living Environment,” and “Created a situation where I 

could become homeless” as the basis for federal question jurisdiction. Plaintiff does not, 

however, identify any specific federal Constitutional, statutory, or treaty right at issue.

While pro se complaints are construed liberally, Plaintiff’s Complaint fails to allege 

claims or facts that support federal jurisdiction. Although the Court is skeptical that, under the 

facts alleged by Plaintiff, he can state a claim for a violation by Defendant of a federal statute or 

treaty or the United States Constitution, given the liberal standards for repleading defective 

jurisdiction the Court dismisses this case without prejudice. Plaintiff may, if there are additional 

facts and claims that support federal jurisdiction, file an amended complaint. If Plaintiff files an 

amended complaint, however, he must specifically identify the basis for federal jurisdiction. 

B. Plaintiff’s Claims

Even if Plaintiff had properly alleged jurisdiction, his Complaint fails to allege a cause of 

action under federal law. Interpreting the Complaint under the liberal pro se pleading standard 

and affording the Plaintiff “the benefit of any reasonable doubt,” the Complaint contains 

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PAGE 5 – OPINION AND ORDER

insufficient facts to support a federal cause of action. To the extent it alleges a state law cause of 

action, such claims are not properly before this court. For these reasons, the Court holds that the 

Complaint fails to state a claim on which relief may be granted and dismisses the case pursuant 

to 28 U.S.C. § 1915(e)(2).

C. Plaintiff’s Request for Pro Bono Counsel

Generally, there is no constitutional right to counsel in a civil case. United States v. 30.64 

Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). The Court has discretion, however, under 28 

U.S.C. § 1915(e) to appoint volunteer counsel for indigent civil litigants in exceptional 

circumstances. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Agyeman v. Corr. Corp. of 

Am., 390 F.3d 1101, 1103 (9th Cir. 2004). While this court may appoint volunteer counsel in 

exceptional cases, it has no power to make a mandatory appointment. Mallard v. U.S. Dist. Court 

for S. Dist. of Iowa, 490 U.S. 296, 301-08 (1989).

In determining whether exceptional circumstances exist, a court evaluates the plaintiff’s 

likelihood of success on the merits and the ability of the plaintiff to articulate his or her claim pro 

se in light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970; Agyeman, 390 

F.3d at 1103. However, “[n]either of these factors is dispositive and both must be viewed 

together before reaching a decision on request of counsel under [former] section 1915(d).” 

Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Terrell v. Brewer, 935 F.2d 1015, 

1017 (9th Cir. 1991). In light of the deficiency in Plaintiff’s Complaint, this Court’s dismissal for 

lack of subject-matter jurisdiction, and the Court’s concern that it appears unlikely that Plaintiff 

will be able to state a federal claim under the facts of this case, Plaintiff appears to have a low 

likelihood of success on the merits. Accordingly, at this stage of the proceeding, the Court does 

not find the requisite exceptional circumstances that support the appointment of counsel under § 

1915(e).

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PAGE 6 – OPINION AND ORDER

CONCLUSION

Plaintiff’s application to proceed in forma pauperis (Dkt. 1) is GRANTED and 

Plaintiff’s motion for appointment of pro bono counsel (Dkt. 3) is DENIED. The Court also 

finds that the Complaint fails to state a claim on which relief may be granted and fails to 

establish that this Court has subject-matter jurisdiction over Plaintiff’s claims. Accordingly, 

Plaintiff’s Complaint (Dkt. 2) is DISMISSED. Plaintiff may file an amended complaint within 

30 days if he can cure the deficiencies identified in this Order.

IT IS SO ORDERED.

DATED this 26th day of August, 2014.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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