UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

JAMES WALTER CLARK,

Plaintiff, 

v.

STATE OF IDAHO, IDAHO STATE 

INDUSTRIAL COMMISSION, IDAHO 

STATE INSURANCE FUND, RACHEL M. 

O’BAR, and LYNN M. LUKER,

Defendant.

Case No. 3:14-cv-1497-ST

FINDINGS AND 

RECOMMENDATIONS TO 

GRANT IN FORMA 

PAUPERIS AND 

TO DISMISS

STEWART, Magistrate Judge:

Plaintiff, James Walter Clark, who is representing himself, has applied to proceed in 

forma pauperis. Because plaintiff indicates that he has no income or assets, his Application to 

Proceed In Forma Pauperis (docket #1) should be granted. However, for the reasons set forth 

below, his Complaint should be dismissed with prejudice and his Motion for Appointment of Pro 

Bono Counsel (docket #3) should be denied as moot.

STANDARDS

“If the court determines at any time that it lacks subject-matter jurisdiction, the court 

must dismiss the action.” FRCP 12(h)(3); see also Cal. Diversified Promotions, Inc. v. Musick, 

505 F2d 278, 280 (9th Cir 1974) (“It has long been held that a judge can dismiss sua sponte for 

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lack of jurisdiction.”). Similarly, although not a jurisdictional issue, courts in the Ninth Circuit 

must decide as a threshold issue whether sovereign immunity under the Eleventh Amendment 

bars the plaintiff’s claims. Coal. to Defend Affirmative Action v. Brown, 674 F3d 1128, 1133 (9th

Cir 2012). 

Moreover, 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 USC § 1915(e)(2); see also Neitzke v. Williams, 490 US 319, 324 (1989); Jackson v. State of 

Ariz., 885 F2d 639, 640 (9th Cir 1989). A complaint is frivolous “where it lacks an arguable 

basis in law or in fact.” Neitzke, 490 US at 325; Lopez v. Dep’t of Health Servs., 939 F2d 881, 

882 (9th Cir 1991); Jackson, 885 F2d at 640. 

In order to state a claim for relief, a pleading must contain “a short and plain statement of 

the claim showing that the pleader is entitled to relief.” FRCP 8(a)(2). This standard “does not 

require ‘detailed factual allegations,’” but does demand “more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S Ct 1937, 1949 (2009), citing Bell 

Atl. Corp. v. Twombly, 550 US 544, 555 (2007). “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 US at 555. “[A] complaint must contain sufficient factual matter, accepted as 

true, to ‘state a claim to relief that is plausible on its face.’” Id, quoting Twombly, 550 US at 

570. 

///

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ALLEGATIONS

According to the lengthy “brief” and exhibits attached to the Complaint, Clark seeks to 

overturn the final decision of the Idaho State Industrial Commission’s Findings of Fact and 

Conclusions of Law and Order dated May 2, 2012, and a subsequent decision by the Idaho 

Supreme Court affirming that Order. As relief, he requests that this court grant him workers’

compensation benefits and make the State of Idaho continue his treatments and medication and 

provide retraining to which he is entitled. In the alternative, he seeks to have defendants pay him 

unspecified damages based on a violation of his unspecified constitutional right to workers’ 

compensation.

As best as this court can discern from Clark’s rambling and disorganized brief, he 

suffered an on-the-job injury to his right arm on April 17, 2008, in the State of Idaho. Because 

he was forced to return to work on June 5, 2008, before he had recovered from his injury, he 

filed a complaint against the Idaho State Insurance Fund. It is unclear what happened with 

respect to that complaint. In any event, Clark accuses the Idaho State Industrial Commission, 

Rehabilitation Division, of committing fraud on May 29, 2008 by withholding a jobsite 

evaluation by Clark’s former treating doctor, which he uncovered on July 25, 2008. Clark also 

accuses the Idaho State Insurance Fund of committing fraud with respect to an unauthorized or 

altered release of his unrelated private medical records used at a November 18, 2010 hearing to 

determine if he still needed continued medical treatment for his Post-Traumatic Stress Disorder 

(“PTSD”). He makes numerous other allegations that are difficult to comprehend.

Defendant Rachel O’Bar (“O’Bar”) of Anderson, Julian & Hull LLP in Boise, Idaho, 

represented defendants. During 2010, Clark was represented by defendant Lynn Luker

(“Luker”), an attorney and Idaho legislator. He complains that Luker did not keep him informed 

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of the progress of his case, did not adequately represent him, only wanted him to settle, quit in 

late December 2010, then apparently obtained an attorney’s lien for $4,689.00, and now seeks 

25% of any eventual settlement.

FINDINGS

A review of the Complaint reveals that the Eleventh Amendment bars Clark’s claims 

against the State of Idaho and its agencies, and this court lacks jurisdiction over whatever claims 

Clark is attempting to allege against the individual defendants.

I. Eleventh Amendment Immunity

The Eleventh Amendment of the United States Constitution bars suit in federal court 

against a state, an agency acting under its control, or a state officer in his official capacity. P.R.

Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 US 139, 144 (1993); Belanger v. Madera 

Unified Sch. Dist., 963 F2d 248, 254 (9th Cir 1992), cert. denied, 507 US 919 (1993). There are 

two exceptions to the Eleventh Amendment protection: (1) Congress can abrogate the Eleventh 

Amendment without the consent of the states in certain situations; and (2) a state may waive its 

immunity by consenting to suit in federal court but must do so by “the most express language or 

by such overwhelming implication from the text as [will] leave no room for any other reasonable 

construction.” Atascadero State Hosp. v. Scanlon, 473 US 234, 239-40 (1985), quoting Edelman

v. Jordan, 415 US 651, 673 (1974) (internal quotation marks and additional citation omitted). 

The State of Idaho has not made a general waiver of its Eleventh Amendment sovereign 

immunity. See Hickman v. State Sch. & Hosp., 339 F Supp 463 (D Id 1972). Thus, plaintiff 

cannot sue the State of Idaho or any of its agencies, including the Idaho State Industrial 

Commission or Idaho State Insurance Fund, in this court.

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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 F3d 963, 967 (9th Cir 2010) (citation omitted), cert. denied 131 S Ct 1678 

(2011). However, a plaintiff may seek “prospective declaratory or injunctive relief against state 

officers in their official capacities.” L.A. Cnty. Bar Ass’n v. Eu, 979 F2d 697, 704 (9th Cir 1992) 

(citations omitted). Since plaintiff does not seek any declaratory or injunctive relief against any 

individual defendant, this court lacks jurisdiction over all of his claims against Luker in her 

official capacity as a state legislator. That leaves only potential claims against O’Bar and Luker

in their personal capacities. However, as explained below, this court lacks jurisdiction over the 

individual defendants.

II. Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction and cannot hear every dispute presented 

by litigants. Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F2d 1221, 

1225 (9th Cir 1989). A district court is empowered to hear only those cases which are within the 

judicial power conferred by the United States Constitution and those which fall within the area of 

jurisdiction granted by Congress. Richardson v. United States, 943 F2d 1107, 1112-13 (9th Cir 

1991), cert. denied, 503 US 936 (1992). 

Jurisdiction may be based on a federal question which requires the plaintiff to plead that a 

defendant has violated a federal law or provision of the United States Constitution. 28 USC 

§ 1331. Alternatively, jurisdiction may be based on diversity which requires that all parties to an 

action be “citizens of different states” and that the amount in controversy exceed $75,000.00. 

28 USC § 1332(a). A natural person’s state citizenship is determined by his or her state of 

domicile. Kanter v. Warner-Lambert Co., 265 F3d 853, 857 (9th Cir 2001). Clark has checked 

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the boxes on the form Complaint to invoke both diversity jurisdiction and federal question 

jurisdiction. 

Because Clark alleges that he is a citizen of Washington and all defendants are citizens of 

Idaho, he invokes jurisdiction based on diversity of citizenship. However, nowhere does the 

Complaint allege that the amount in controversy exceeds $75,000.00. Conceivably Clark seeks 

to recover benefits, treatment, medications, and retraining which total more than $75,000.00. 

However, without such an allegation, this court lacks diversity jurisdiction. 

Even though Clark alleges that this court has federal question jurisdiction, he fails to 

identify any violation by either O’Bar or Luker of any specific provision of the Constitution, 

laws or treaties of the United States. Compensation paid to workers for on-the-job injuries is a 

creation solely of state law, not federal law. Clark does make some passing reference to a denial 

of due process. Under the Fourteenth Amendment, a state may not deprive a person of life, 

liberty, or property without due process of law. However, Clark wholly fails to allege facts as to 

what due process he was denied by Idaho’s workers compensation process.

Thus, the Complaint fails to allege the facts and claims necessary to invoke either 

diversity or federal question jurisdiction.

III. Failure to State a Claim

Assuming that Clark’s potential claims against O’Bar and Luker are based on § 1983 for 

violation of his constitutional rights, his Complaint is deficient for several other reasons. When a 

plaintiff seeks damages for a violation of his constitutional rights, he must allege a claim under 

42 USC § 1983. To state a § 1983 claim, a plaintiff must allege facts showing the deprivation of 

a right, privilege or immunity secured by the Constitution or federal law by a person acting under 

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color of state law. L.W. v. Grubbs, 974 F2d 119, 120 (9th Cir 1992), cert. denied, 508 US 951 

(1993); Lopez, 939 F2d at 883. 

First, a claim under 42 USC § 1983 can be stated only against a person acting “under 

color” of state law and precludes a claim against private parties. Clark’s own attorney, Luker, is 

a private party and not an employee of any governmental entity. Thus, Luker was not acting

“under color” of state law and cannot be held liable under § 1983 absent evidence that the 

defendant conspired with state officials to deprive Clark of a federal right. See Kimes v. Stone, 

84 F3d 1121, 1126 (9th Cir 1996). No such conspiracy is alleged. 

Second, a claim under § 1983 must be filed within a certain period of time after the 

alleged violation of a constitutional right. It is obvious from the allegations in the Complaint that 

plaintiff’s constitutional claims are time-barred. Because § 1983 and most related federal civil 

statutes have no independent statute of limitations, the applicable limitation period is borrowed 

from the forum state. Wilson v. Garcia, 471 US 261, 279-80 (1985). Actions filed pursuant to 

§ 1983 are characterized as personal injury actions for statute of limitations purposes. McDougal 

v. Cnty. of Imperial, 942 F2d 668, 673 (9th Cir 1991). In Oregon and Idaho, this period is two 

years. ORS 12.110(1); Idaho Code § 5-219(4); Cooper v. City of Ashland, 871 F2d 104, 105 (9th

Cir 1989). All of Clark’s claims arise from actions taken by O’Bar and Luker in 2008 and 2010. 

Clark filed the Complaint on September 14, 2014, about four years later. Therefore, any claim 

under § 1983 is clearly time-barred.

Third, a litigant may not relitigate in federal court those issues decided by a state court. 

“[I]ssues actually litigated in a state-court proceeding are entitled to the same preclusive effect in 

a subsequent federal § 1983 suit as they enjoy in the courts of the State where the judgment was 

rendered.” Migra v. Warren City Sch. Dist. Bd. Of Ed., 465 US 75, 83 (1984). Even though a 

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state court judgment may erroneously decide constitutional or federal law issues, this court lacks 

jurisdiction to engage in appellate review of that judgment. Texaco, Inc. v. Pennzoil Co., 784 

F2d 1133, 1141 (2nd Cir 1986), rev’d on other grounds, 481 US 1 (1987). “If the constitutional 

claims presented to a United States District Court are inextricably intertwined” with the merits of 

a judgment rendered in a state court proceeding, “then the District Court is in essence being 

called upon to review the state court decision. This the District court may not do.” D.C. Court 

of Appeals v. Feldman, 460 US 462, 483 n16 (1983). A claim is 

inextricably intertwined with the state-court judgment if the federal claim 

succeeds only to the extent that the state court wrongly decided the issues 

before it. Where federal relief can only be predicated upon a conviction 

that the state court was wrong, it is difficult to conceive the federal 

proceeding as, in substance, anything other than a prohibited appeal of that 

state-court judgment. 

Pennzoil Co. v. Texaco, Inc., 481 US 1, 25 (1987) (Marshall, J., concurring); accord Canal 

Capital Corp. v. Valley Pride Pack, Inc., 169 F3d 508, 512 (8th Cir 1999) (a federal claim is 

inextricably intertwined with a state court judgment when “the relief requested in the federal 

action would effectively reverse the state court decision or void its ruling”). 

Because Clark is seeking to overturn a judgment entered by an Idaho court with respect 

to his workers compensation award, his claim cannot be brought in federal court. Since this is 

the relief that Clark seeks, it is unclear why he is suing O’Bar and Luker who cannot provide that 

relief. If he has some other claim against O’Bar and Luker for damages, then he has made no 

attempt to allege it. 

IV. No Personal Jurisdiction

And even if Clark adequately stated some claim against O’Bar and Luker based on 

diversity jurisdiction or federal question jurisdiction, this court clearly has no personal 

jurisdiction over either of them. Personal jurisdiction may be conferred by state law or with 

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constitutional principles of due process. See Int’l Shoe Co. v. Wash., 326 US 310 (1945). 

Where, as in Oregon, the state and federal limits are coextensive, State ex rel. Hydraulic 

Servocontrols, Inc. v. Dale, 294 Or 381, 384, 657 P2d 211 (1982), the court must determine 

whether the exercise of jurisdiction comports with federal constitutional principles of due 

process. 

Even if a non-resident’s contacts with the state are not substantial, the court may have 

“specific” jurisdiction over him. Haisten v. Grass Valley Med. Reimbursement Fund, 784 F2d 

1392, 1397 (9th Cir 1986). To determine whether “specific” jurisdiction exists, courts consider 

three things. The defendant must have purposefully availed himself of the privilege of 

conducting activities in the forum, thereby invoking the benefits and protection of its laws. Id at 

1396 (citations omitted). The claim must also arise out of the defendant’s forum-related 

activities. Id. Finally, the exercise of jurisdiction must be reasonable. Id. Since all of the 

alleged conduct by O’Bar and Luker occurred in Idaho, not Oregon, this court has no personal 

jurisdiction over either of them.

V. Futility of Amendment

A pro se litigant must be given leave to amend his or her complaint unless it appears the 

deficiency cannot be cured by amendment. James v. Giles, 221 F3d 1074, 1077 (9th Cir 2000) 

(citations omitted). Viewing all allegations in the Complaint as true and construing all 

inferences in Clark’s favor, this court concludes that it has no jurisdiction over Clark’s claims 

against the State of Idaho, its agencies, including the Idaho State Industrial Commission or the 

Idaho State Insurance Fund, and officials acting in their official capacity. In addition, this court 

has no diversity jurisdiction, federal question jurisdiction, or personal jurisdiction over the 

remaining defendants. Those deficiencies in the Complaint cannot be cured by amendment. 

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RECOMMENDATIONS

For the reasons set forth above, Clark’s Application to Proceed In Forma Pauperis

(docket #1) should be granted, but the Complaint should be dismissed with prejudice based on 

lack of jurisdiction and the Motion for Appointment of Pro Bono Counsel (docket #3) should be 

denied as moot.

SCHEDULING ORDER

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

any, are due Thursday, November 06, 2014. 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 within 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.

NOTICE

This Findings and Recommendation is not an order that is immediately appealable to the 

Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules 

of Appellate Procedure, should not be filed until entry of a judgment.

DATED October 20, 2014.

s/ Janice M. Stewart

Janice M. Stewart

United States Magistrate Judge

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