# Willis v. State of Oregon

> District Court, D. Oregon · May 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10391957

## Case

- **Court:** District Court, D. Oregon
- **Decided:** May 5, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10391957. Public record. Not legal advice.