Willis v. State of Oregon

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

STEVEN WILLIS, No. 3:20-cv-00477-HZ

Plaintiff, OPINION & ORDER

v.

STATE OF OREGON, ANDREW ERWIN,

HERSHELL BROWN, and WASHINGTON

COUNTY DISTRICT ATTORNEYS OFFICE,

Defendants.

HERNÁNDEZ, District Judge:

Pro se plaintiff Steven Willis brings this action against the State of Oregon, Andrew

Erwin, Hershell Brown, and the Washington County District Attorney’s Office. Plaintiff moves

for the appointment of counsel and to proceed in forma pauperis. Because he has no appreciable

income or assets, the motion to proceed in forma pauperis is granted. However, for the reasons

explained below, the motion for the appointment of counsel is denied, and the complaint is

dismissed.

STANDARDS

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); see also Neitzke v. Williams, 490 U.S. 319, 324 (1989) (sua sponte

dismissals under section 1915 “spare prospective defendants the inconvenience and expense of

answering” complaints which are “frivolous, malicious, or repetitive”); Lopez v. Smith, 203 F.3d

1122, 1126 n.7 (9th Cir. 2000) (section 1915(e) applies to all in forma pauperis complaints, not

just those filed by inmates). A complaint is frivolous when “it lacks an arguable basis either in

law or in fact.” Neitzke, 490 U.S. at 325; Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989).

A complaint fails to state a claim when it does not contain sufficient factual matter which, when

accepted as true, gives rise to a plausible inference that defendants violated plaintiff’s

constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v.

Twombly, 550 U.S. 554, 556–57 (2007). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

When a plaintiff is pro se, the court construes his pleadings liberally and affords him the

benefit of any doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Ortez v. Washington County,

88 F.3d 804, 806 (9th Cir. 1996).

DISCUSSION

Plaintiff brings three claims based on Defendants’ alleged violations of the Fourth, Fifth,

Sixth, and Fourteenth Amendments. Each claim is based on acts that occurred during criminal

proceedings brought against Plaintiff. Specifically, Plaintiff appears to allege that Judge Erwin,

while presiding over his trial, refused to grant Plaintiff additional time to find a witness; made

certain evidentiary mistakes at trial (for example, allowing the district attorney to introduce

expert testimony and evidence of drug paraphernalia); and made certain unidentified mistakes at

sentencing. Plaintiff also appears to allege that he was either pressured into waiving his speedy

trial rights or that the judge and prosecutor colluded in finding a trial date that would not violate

Plaintiff’s speedy trial rights. Plaintiff requests the Court vacate his sentence and award

$15,000,000 in damages.

I. 28 U.S.C. § 1915(e)(2)

As an initial matter, Plaintiff’s claims for money damages against the judge and

prosecutor involved in his case fail because these defendants are immune from such a suit. Olsen

v. Idaho State Bd. of Medicine, 363 F. 3d 916, 922 (9th Cir. 2004) (“Absolute immunity is

generally accorded to judges and prosecutors functioning in their official capacities.”); see

Kalina v. Fletcher, 522 U.S. 118, 123–25 ( 1997) (prosecutorial immunity). Similarly, because

42 U.S.C. § 1983 provides the cause of action for alleged federal constitutional violations,

Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002), the State of Oregon is also immune from suit,

Stilwell v. City of Williams, 831 F.3d 1234, 1245 (9th Cir. 2016) (Ҥ 1983 . . . did not abrogate

States’ Eleventh Amendment immunity and therefore does not allow suits against States

themselves.”).

To the extent Plaintiff seeks money damages against other defendants, Plaintiff’s claims

appear to directly and indirectly challenge the legality of his conviction and are therefore barred

absent a showing that the conviction has been set aside. See Heck v. Humphrey, 512 U.S. 477,

486–87 (1994) (to recover damages for harm caused by actions whose unlawfulness would

render a conviction invalid, plaintiff must prove that the conviction has been reversed or

otherwise invalidated); Edwards v. Balisok, 520 U.S. 641 (1997). Before Plaintiff can bring a §

1983 damages action, he must first invalidate his conviction through a state court proceeding, or

through a federal petition for writ of habeas corpus if he has exhausted his state court remedies.

Heck, 512 U.S. at 486–87.

To the extent Plaintiff asks the Court to vacate his conviction, such a request is not

cognizable under § 1983. Id. at 481, 489. While it is unclear to the Court whether Plaintiff is

currently in custody, the Court notes that habeas corpus is the exclusive remedy for a state

prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier

release. Preiser v. Rodriguez, 411 U.S. 475 (1973). The Court will not construe Plaintiff’s

complaint as a petition for habeas corpus without clear indication of Plaintiff’s intent. See

Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).

The Court therefore dismisses Plaintiff’s complaint pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) and (iii).

II. Motion to Appoint Counsel

Plaintiff also moves for a court-appointed attorney. 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). However, under 28 U.S.C. § 1915(e), this Court has discretion to request volunteer

counsel for indigent parties in exceptional circumstances. Wood v. Housewright, 900 F.2d 1332,

1335 (9th Cir. 1990); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). While this

Court may request volunteer counsel in exceptional cases, it has no power to make a mandatory

appointment. Mallard v. United States Dist. Ct. of Iowa, 490 U.S. 296, 301–08 (1989).

In order to determine whether exceptional circumstances exist, this Court evaluates the

party’s likelihood of success on the merits and the ability of the party to articulate his or her

claim pro se in light of the complexity of the legal issues involved. Wood, 900 F.2d at 1335–36;

Wilborn, 789 F.2d at 1331; Richards v. Harper, 864 F.2d 85, 87 (9th Cir. 1988) (quoting

Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). However, “[n]either of these factors is

dispositive and both must be viewed together before reaching a decision on request of counsel

under section 1915(d).” Wilborn, 789 F.2d at 1331.

It is not appropriate to appoint counsel under 28 U.S.C. § 1915(e)(1) when the Court is

dismissing the case under 28 U.S.C. § 1915(e)(2)(B). The Court therefore denies the motion for

appointment of counsel.

CONCLUSION

Plaintiff’s motion to proceed in forma pauperis [1] is GRANTED, and Plaintiff’s motion

for appointment of counsel [3] is DENIED. Because Plaintiff has failed to state a cognizable

claim, Plaintiff’s complaint [2] is dismissed without prejudice. Plaintiff may file an amended

complaint, consistent with this Opinion & Order, within 30 days of the date below. The Clerk’s

Office is directed to withhold issuance of any summons until further order of the Court.

IT IS SO ORDERED.

Dated: ______________M_a__y_ 5_,_ 2_0__2_0____________.

MARCO A. HERNÁNDEZ

United States District Judge