United States District Court, D. Oregon
William James Matthew Wallace, II, pro se.
Christopher A. Gilmore, Sr. Assistant County Counsel, Office
of Washington County Counsel, Hillsboro, OR 97124. Of
Attorneys for Defendant Washington County.
Michael H. Simon, United States District Judge.
William James Matthew Wallace, II was an inmate in the
Washington County Jail. He asserts five claims against
Defendant Washington County Jail and Naphcare Medical,
alleging violations of the Health Insurance Portability and
Accountability Act (“HIPAA”), the Americans with
Disabilities Act (“ADA”), and the Eighth
Amendment of the United States Constitution. Naphcare Medical
has not yet been served in this case. Plaintiff moves for a
second time for the appointment of counsel and asks the Court
to issue several subpoenas. Plaintiff's forms for the
issuance of a subpoena are not completed, although Plaintiff
has entered information in the first section of the form. The
remaining sections of each form, however, including the
portions of the form describing where and when documents
should be produced, are blank. For those reasons,
Plaintiff's motions for subpoenas (ECF 21 and 22) are
moves to dismiss all of Plaintiff's claims. For the
reasons that follow, Defendant's Motion to Dismiss (ECF
25) is GRANTED in part and DENIED in part.
Motion for Appointment of 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). The Court has discretion,
however, under 28 U.S.C. § 1915(e) to appoint volunteer
counsel for indigent civil litigants in exceptional
circumstances. Palmer v. Valdez, 560 F.3d 965, 970
(9th Cir. 2009); Agyeman v. Corr. Corp. of Am., 390
F.3d 1101, 1103 (9th Cir. 2004). Although a court may appoint
volunteer counsel in exceptional cases, it has no power to
make a mandatory appointment. Mallard v. U.S. Dist. Court
for S. Dist. of Iowa, 490 U.S. 296, 301-08 (1989).
determining whether exceptional circumstances exist, a court
evaluates the plaintiff's likelihood of success on the
merits and the ability of the plaintiff to articulate his or
her claim pro se in light of the complexity of the legal
issues involved. Palmer, 560 F.3d at 970;
Agyeman, 390 F.3d at 1103. 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);
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
Motion to Dismiss
motion to dismiss for failure to state a claim may be granted
only when there is no cognizable legal theory to support the
claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief.
Shroyer v. New Cingular Wireless Servs., Inc., 622
F.3d 1035, 1041 (9th Cir. 2010). In evaluating the
sufficiency of a complaint's factual allegations, the
court must accept as true all well-pleaded material facts
alleged in the complaint and construe them in the light most
favorable to the non-moving party. Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012); Daniels-Hall v. Nat'l Educ. Ass'n,
629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a
presumption of truth, allegations in a complaint “may
not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). All reasonable inferences from the
factual allegations must be drawn in favor of the plaintiff.
Newcal Indus. v. Ikon Office Solution, 513 F.3d
1038, 1043 n.2 (9th Cir. 2008). The court need not, however,
credit the plaintiff's legal conclusions that are couched
as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009).
complaint must contain sufficient factual allegations to
“plausibly suggest an entitlement to relief, such that
it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation.” Starr, 652 F.3d at 1216. “A
claim has facial plausibility when 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 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Mashiri v. Epstein Grinnell & Howell, 845 F.3d
984, 988 (9th Cir. 2017) (quotation marks omitted).
must liberally construe the filings of a pro se
plaintiff and afford the plaintiff the benefit of any
reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010). “Unless it is absolutely clear that no
amendment can cure the defect, . . . a pro se litigant is
entitled to notice of the complaint's deficiencies and an
opportunity to amend prior to dismissal of the action.”
Garity v. APWU Nat'l Labor Org., 828 F.3d 848,
854 (9th Cir. 2016) (alteration in original) (quoting
Lucas v. Dep't of Corrections, 66 F.3d 245, 248
(9th Cir. 1995) (per curiam)). Under Federal Rule of Civil
Procedure 8(a)(2), however, every complaint must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” This standard
“does not require ‘detailed factual allegations,
'” but does demand “more than an unadorned,
the defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Id. (quoting Twombly, 550 U.S. at 555).