FINDINGS AND RECOMMENDATION AND ORDER – 1 

 

 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ANGELA NAILS, ) Civil No.: 3:15-cv-1034-JE 

 ) 

 Plaintiff, ) FINDINGS AND 

 ) RECOMMENDATION AND ORDER 

 v. ) 

 ) 

STEVEN C. BURKE, ) 

 ) 

 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 Steven Burke. 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. In this 

action Plaintiff alleges that she hired Defendant, an attorney, to represent her in court but 

Defendant did not appear as agreed and Plaintiff’s case was dismissed. She further alleges that 

Defendant has failed to return the full amount of a $1,000 retainer fee Plaintiff paid. Plaintiff 

seeks the return of $450 in fees paid to Defendant, $55.00 in various costs and filing fees and 

$74,045.00 in additional 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 a 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 Plaintiff alleges that the parties are citizens of different states, she 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. 

 Additionally, regardless of how liberally Plaintiff’s Complaint is construed, it fails to 

state a claim upon which relief can be granted. First, the Complaint does not include “a short 

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 

8(a); see also Conley v. Gibson, 355 U.S. 41, 47 (1957) (complaint must “give the defendant fair 

notice of what the plaintiff's claim is and the grounds upon which it rests”). The short and plain 

statement of the claim must give the defendant fair notice of what the claim is. Twombly, 550 

U.S. at 555. Plaintiff has failed to do that in her Complaint. Furthermore, to the extent Plaintiff 

may allege legal malpractice, this is a state-law claim for which “there exists no independent 

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FINDINGS AND RECOMMENDATION AND ORDER – 4 

basis of federal jurisdiction.” See Aragon v. Federated Dept. Stores, Inc., 750 F.2d 1447, 1457-

58 (9th Cir.1985). 

 Accordingly, Plaintiff’s complaint should be dismissed. Nonetheless, because Plaintiff 

may be able to cure the deficiencies of the complaint by amendment, the dismissal should be 

without prejudice and with leave to replead. If Plaintiff does file an amended complaint, she 

must allege sufficient facts to satisfy the federal pleading standard set out by the federal rules of 

civil procedure and the Iqbal and Twombly cases. Plaintiff must also either specifically identify 

the federal statute, treaty or Constitutional provision that Plaintiff alleges was violated by 

Defendant or allege facts sufficient to support diversity jurisdiction. 

 Plaintiff also moves for appointment of 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). While this court has discretion to request volunteer counsel for indigent 

plaintiffs in “exceptional circumstances,” the court has no power to make a mandatory 

appointment. 28 U.S.C. § 1915(e)(1) (formerly §1915(d)); Palmer v. Valdez, 560 F.3d 965, 970 

(9th Cir. 2009); Mallard v. U.S. Dist. Court of Iowa, 490 U.S. 296, 301–08 (1989). 

 In determining whether “exceptional circumstances” exist, a court considers the plaintiff's 

likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 

light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970. 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). In the present case, I do not find the requisite exceptional 

circumstances to support the appointment of counsel under § 1915(e)(1). Plaintiff’s motion for 

appointment of pro bono counsel is, therefore, denied. 

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FINDINGS AND RECOMMENDATION AND ORDER – 5 

Conclusion 

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

motion for appointment of pro bono counsel (#4) is DENIED. This action should be 

DISMISSED without service of process, without prejudice and with leave to replead. Plaintiff 

should be given 30 days to file an amended complaint curing the defects described above if she 

wishes to proceed with this action. If Plaintiff fails to file such an amended complaint, the case 

should be dismissed 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. 

 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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