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Silver v. Multnomah County

United States District Court, D. Oregon

July 31, 2014

DANIEL JAMES SILVER, Plaintiff,
v.
MULTNOMAH COUNTY, et al., Defendants.

Daniel James Silver, Portland, OR, Pro Se Plaintiff.

OPINION & ORDER

MARCO A. HERNNDEZ, District Judge.

On July 1, 2014, Daniel James Silver filed an application to proceed in forma pauperis ("IFP") (dkt. #1), a complaint (dkt. #2), and a Motion for Appointment of Counsel (dkt. #3). For the reasons stated, Silver's application to proceed IFP is granted, his complaint is dismissed sua sponte for failure to state a cognizable claim, and his motion for appointment of counsel is denied.

STANDARDS

In connection with IFP actions such as this, district courts are obligated to dismiss sua sponte actions that are frivolous or malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2). Courts have a duty to liberally construe a pro se plaintiff's pleadings, but a court cannot supply essential elements of the claim that were not initially pled. See Ivey v. Bd. of Regents of the Univ. of Alaska , 673 F.2d 266, 268 (9th Cir. 1982).

A complaint must contain a short and plain statement of the claim and contain factual matters that, if accepted as true, are sufficient to state a facially plausible claim. FED. R. CIV. P. 8(a); Ashcroft v. Iqbal , 556 U.S. 662, 677-78 (2009) (citation omitted). A complaint states a plausible claim where the "plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678. When a court dismisses a complaint for failure to state a claim, the court should grant leave to amend "unless the court determines that the allegation of other facts consistent with the challenged pleading could not possible cure the deficiency." DeSoto v. Yellow Freight Sys., Inc. , 957 F.2d 655, 658 (9th Cir. 1992) (quotation marks and citation omitted).

A district court may request an attorney to represent any person unable to afford counsel. 28 U.S.C. § 1915(e)(1). There is not, however, a constitutional right to counsel in a civil case, and 28 U.S.C § 1915 does not "authorize the appointment of counsel to involuntary service." United States v. 30.64 Acres of Land , 795 F.2d 796, 801 (9th Cir. 1986). The decision to appoint counsel is "within the sound discretion of the trial court and is granted only in exceptional circumstances." Agyeman v. Corrections Corp. of Am., 290 F.3d 1101, 1103 (9th Cir. 2004) (quotation marks and citation omitted). A finding of exceptional circumstances depends on two factors: the plaintiff's likelihood of success on the merits, and the plaintiff's ability to articulate his or her claims in light of the complexity of the legal issues involved. Id . Neither factor is dispositive and both must be viewed together before ruling on a request for counsel. Palmer v. Valdez , 560 F.3d 965, 970 (9th Cir. 2009) (citation omitted).

DISCUSSION

After examining Mr. Silver's application to proceed IFP, the court finds the Mr. Silver cannot afford the costs of this action. Mr. Silver's application (dkt. #1) is therefore granted and his IFP status is confirmed.

Mr. Silver's complaint names Multnomah County and two individuals, John O'Hara and Katherine Vonstage, as defendants. He asserts that this court has federal question jurisdiction, but his complaint does not state what federal Constitutional, statutory, or treaty right is at issue. Compl. at 2-3. He alleges two claims. Claim I reads in its entirety:

Multnomah County seems to have some tax lien properties that went into repossession and sold for land development issues in south east Portland. There seems to be some taxes involved in the management of an estate by a power of attorney who won't give [an] honest public accounting of their business. As a result I am now homeless and going broke.

Compl. at 3.

Claim II is similarly vague:

They used the health care department and enforcement to evict and ...

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