IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CARVEY LEWIS LESTER, 

Plaintiff, 

v. 

SPRINGFIELD POLICE 

DEPARTMENT ET AL, 

Defendant. 

MCSHANE, Judge: 

Civ. No. 6:15-cv-01738-MC 

OPINION AND ORDER 

Plaintiff, pro se, brings this action against the Springfield Police Department1 for alleged 

violation ofhis rights under the Fourth and Sixth Amendments, ECF No. 1, a motion to proceed 

in forma pauperis, ECF No.2, and a motion for appointment of counsel, ECF No.3. 

This Court may dismiss a claim sua sponte under FRCP 12(b)(6) for failure to state a 

claim upon which relief can be granted. Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th 

Cir. 1987) (citations omitted). Likewise, if a plaintiff proceeds in forma pauperis, this Court is 

required to dismiss "the case at any time if the court determines that" the action or appeal is 

"frivolous or malicious" or "fails to state a claim on which relief may be granted." 28 U.S.C. § 

1915(e)(2)(B). Upon review, plaintiffs complaint, ECF No. 1, is DISMISSED with leave to file 

a petition for writ of habeas corpus pursuant to 28 U.S. C. § 2254, plaintiffs motion to proceed in 

forma pauperis, ECF No.2, is GRANTED, and plaintiffs motion for appointment of counsel, 

ECF No. 3, is DENIED without prejudice. 

1 Plaintiff did not identify any additional defendants in his complaint. See Compl. 1-6, ECF No. 1. 

1 - OPINION AND ORDER 
STANDARD OF REVIEW 

"in civil rights cases where the plaintiff appears prose, [this Court] must construe the 

pleadingsliberally and must afford plaintiff the benefit of any doubt." Karim-Panahi v. L.A. 

Police Dep't, 839 F.2d 621,623 (9th Cir. 1988) (citations omitted). This Court must give a prose 

litigant "leave to amend his or her complaint unless it is absolutely clear that the deficiencies of 

the complaint could not be cured by amendment." Id. (citations and internal quotation marks 

omitted). "Moreover, before dismissing a prose civil rights complaint for failure to state a claim, 

[this Court] must give the plaintiff a statement ofthe complaint's deficiencies." Id. · 

DISCUSSION 

Plaintiff seeks to recover various damages resulting from an alleged unconstitutional 

imprisonment. See Compl. 1-6, ECF No. 1. Plaintiff, who was convicted of unlawful delivery of 

methamphetamine, ORS § 475.890, and unlawful possession of methamphetamine, ORS § 

. 475.874, in Lane County Case No. 201203990, appears to be currently under Oregon Post-Prison 

Supervision. See Compl. 4, ECF No. 1-1. 

To survive this assessment under FRCP 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B), plaintiff 

must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under this standard, plaintif-fs alleged facts must 

constitute "more than a sheer possibility that a defendant acted unlawfully." Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). This Court must assume that the allegations contained in the 

complaint are true. Id. 

Plaintif-fs allegations, at least as currentiy_articulated, are insufficient to state a claim. To . 

. properly state a claim, plaintif-fs complaint must contain "a short and plain statement of the 

claim showing that the pleader is entitled to relief." FRCP 8( a)(2). Plaintiff need, in an amended 

2- OPINION AND ORDER 
complaint, specify the claim or claims that he is asserting against each named defendant? If 

plaintiffi:ritends to challenge the constitutionality ofhis state imprisonment and subsequent postprison supervision in federal district court, he need file a petition for writ of habeas corpus 

pursuant to 28 U.S.C. § 2254. See Heck v. Humphrey, 512 U.S. 477, 486 (1994); Preiser v. 

Rodriguez, 411 U.S. 475,490 (1973). Such a petition must allege that he exhausted3 his state 

remedies, see O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Kellotat v. Cupp, 719 F.2d· 

1027, 1030-31 (9th CiL 1983), and "must be legibly written or typewritten on forms supplied by 

the Court and ... signed under penalty of perjury by the petitioner or by a person authorized to 

sign for the petitioner. The original of the petition ... must be sent to the Clerk of the Court," LR 

81-1. 

Plaintiff also moves for appointment of pro bono counsel. See Pl.'s Mot. Appointment 

Counsell-4, ECF No.3. This Court has discretion to appoint counsel under "exceptional 

circumstances." See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). To determine whether 

· such circumstances. exist, this Court considers "the likelihood of success on the merits as well as 

the ability of the petitioner to articulate his claims prose in light of the complexity of the legal 

issues involved." !d. (citation and internal quotation marks omitted). Plaintiffhas not made this 

requisite showing. 

. CONCLUSION 

2 Plaintiff, in his request for relief, seeks compensation for "time spent under false imprisonment." Compl. 6, ECF 

No. 1. To assert a claim for false imprisonment under Oregon law, plaintiff must allege four elements, including: (l) 

defendant confined plaintiff;(2) defendant intended the act that caused the confinement; (3)plaintiffwas aware of 

the confinement; and ( 4) the confinement was unlawful. See Hiber v. Creditors Collection Serv. of Lincoln Cnty., 

Inc., 154 Or. App. 408, 413 (1998) (citations omitted). Even had plaintiff properly plead these four elements, a claim 

for false imprisonment asserted against the Springfield Police I)epartment does not confer federal subject matter 

jurisdiction over this matter. 3 There are two limited exceptions to exhaustion: first, when there is an absence of available State corrective 

process; and second, when circumstimces exist that render such process ineffective to protect the rights of the 

applicant. See 28 U.S.C. § 2254(b)(l)(B). · . 

3 - OPINION AND ORDER 
For these reasons, plaintiffs complaint, ECF No. 1, is DISMISSED with leave to file a 

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, plaintiffs motion to proceed in 

forma pauperis, ECF No. 2, is GRANTED, and plaintiffs motion for appointment of counsel, 

ECF No. 3, is DENIED without prejudice. Plaintiff is allowed 45 days from the date of this 

order to file a petition for writ of habeas corpus consistent with this opinion. The Clerk of 

the Court shall provide plaintiff with an appropriate habeas corpus form, but shall not issue 

process until further order of this Court. 

IT IS SO ORDERED. 

DATED this 25th day of September, . 

4 - OPINION AND ORDER 

t l...._ __ _ 

Michael J. McShane 

United States District Judge 

2015