FINDINGS AND RECOMMENDATION AND ORDER – 1 

 

 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ANGELA NAILS, ) Civil No.: 3:15-cv-1033-JE 

 ) 

 Plaintiff, ) FINDINGS AND 

 ) RECOMMENDATION AND ORDER 

 v. ) 

 ) 

CHARLES BAILEY, ) 

 ) 

 Defendant. ) 

____________________________________ ) 

 Angela Nails 

 15406 Bellaire Ave. 

 Apt. M 

 Grandview, MO 64030 

 Plaintiff Pro Se 

JELDERKS, Magistrate Judge: 

 Plaintiff Angela Nails brings this action against Defendant Charles Bailey. Plaintiff has 

applied to proceed in forma pauperis and has moved for the appointment of pro bono counsel. 

 Plaintiff’s application to proceed in forma pauperis is granted and her motion for 

appointment of counsel is denied. For the reasons set forth below, Plaintiff’s Complaint should 

be dismissed, without service of process, for lack of subject matter jurisdiction and on the basis 

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FINDINGS AND RECOMMENDATION AND ORDER – 2 

that it fails to state a claim upon which relief may be granted. See FRCP 12(h)(3); 28 U.S.C. § 

1915(e)(2)(B). 

Background 

 This Complaint is one of five that Plaintiff filed on the same day in this Court. As in her 

other Complaints, Plaintiff’s allegations are vague, rambling and difficult to ascertain. In this 

action she alleges that “Defendant did not timely respond to the Complaint of the plaintiff when 

granting the dismissal and not finding the other side in default . . . .” She seeks $75,000 in 

damages. 

Discussion 

 Under 28 USC § 1915(e)(2)(B), a complaint filed in forma pauperis must be dismissed 

before service of process if it is frivolous, fails to state a claim on which relief may be granted or 

seeks monetary relief against a defendant who is immune from such relief. 

 In order to state a viable claim, the plaintiff must allege “enough facts to state a claim to 

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see 

also, Ashcroft v. Iqbal, 556 U.S. 662 (2009)(specifically applying Twombly analysis beyond the 

context of the Sherman Act). In addition, under Federal Rule of Civil Procedure 8(a)(1), every 

complaint must contain “a short and plain statement of the grounds for the court's jurisdiction....” 

However, “[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or 

appellate courts.” 28 U.S.C. § 1653. The court must liberally construe a pro se plaintiff’s 

complaint and permit amendment unless the deficiencies in the complaint cannot be cured by 

amendment. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623-624 (9th Cir. 1988). 

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 Furthermore, Federal Rule of Civil Procedure 12(h) requires this court to dismiss an 

action “[w]henever it appears by suggestion of the parties or otherwise that the court lacks 

jurisdiction of the subject matter.” See also Augustine v. United States, 704 F.2d 1074, 1077 (9th

Cir. 1983). A court may dismiss an action sua sponte if it lacks subject matter jurisdiction. See, 

e.g., Cal. Diversified Promotions, Inc. v. Musick, 505 F.2d 278, 280 (9th Cir. 1974). Jurisdiction 

must be based on either diversity of citizenship for cases involving more than $75,000 in 

damages between citizens of different states or on a claim based on the United States 

Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 1331,1332. 

 As an initial matter, for basis of jurisdiction, Plaintiff has checked the box on page 2 of 

the Complaint form indicating federal question jurisdiction. While Plaintiff may have grounds 

for asserting federal question jurisdiction, those grounds are not articulated in Plaintiff’s 

Complaint. Furthermore, although it appears that the parties are citizens of different states, 

Plaintiff seeks exactly $75,000 in damages. Thus the amount in controversy fails to meet the 

jurisdictional threshold. See 28 U.S.C.§ 1332 (amount in controversy must exceed the sum or 

value of $75,000, exclusive of interests and costs). As a result, this court lacks subject-matter 

jurisdiction in this case. 

 Plaintiff does not indicate who Defendant Bailey is. However, based on the limited 

assistance of her allegations and in the context of the other actions Plaintiff has brought against 

various entities connected to the Washington County Circuit Court, I am led to believe that the 

named Defendant is a Washington County Circuit Court Judge. In addition to the inferences 

drawn from the Plaintiff’s Complaints that the Defendant was the judge who granted a dismissal 

(apparently of Plaintiff’s case), this court takes judicial notice that a Charles Bailey is, in fact, a 

Washington County Circuit Judge. As such, Defendant Bailey is entitled to absolute immunity 

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and Plaintiff’s claim against him should be dismissed. See Schucker v. Rockwood, 846 F.2d 

1202, 1204 (9th Cir .1988) (per curiam) (citations omitted)(“Judges are absolutely immune from 

damage actions for judicial acts taken within the jurisdiction of their courts.... A judge loses 

absolute immunity only when [the judge] acts in the clear absence of all jurisdiction or performs 

an act that is not judicial in nature.”). 

 Plaintiff’s action should be dismissed and, because it is apparent that the deficiencies of 

the Complaint cannot be cured by amendment, the dismissal should be with prejudice. In 

addition, 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); 28 U.S.C. § 1915(e)(1), and under the circumstances 

in this case, appointment of counsel would be futile in any event. Plaintiff’s motion for 

appointment of pro bono counsel is, therefore, denied. 

Conclusion 

 For the reasons set out above, Plaintiff’s application to proceed in forma pauperis [#1] is 

GRANTED, and her motion for pro bono counsel [#4] is DENIED. This action should be 

DISMISSED without service of process for lack of subject matter jurisdiction and for failure to 

state a claim upon which relief may be granted. A judgment should be entered dismissing this 

action with prejudice. 

Scheduling Order

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

if any, are due September 4, 2015. If no objections are filed, then the Findings and 

Recommendation will go under advisement on that date. 

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 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. 

 DATED this 18th day of August, 2015. 

 /s/ John Jelderks 

 John Jelderks 

 U.S. Magistrate Judge 

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