Blocker v. HSBC Bank USA
Filing
6
OPINION & ORDER: Plaintiff's motion to proceed in forma pauperis 1 is granted. Plaintiff's motion for appointment of counsel 3 is denied. Based on the foregoing, Plaintiff's Complaint 2 is dismissed. Plaintiff may file a n amended complaint, curing the deficiencies noted above, within 30 days of the date of this order. Plaintiff is advised that failure to file an amended complaint which cures the deficiencies noted shall result in the dismissal of this proceeding, with prejudice. See 5-page opinion & order attached. Signed on 12/1/2014 by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
TYRONE BLOCKER,
Plaintiff,
No. 3:14-cv-1822-HZ
v.
HSBC BANK USA,
OPINION & ORDER
Defendant.
Tyrone Blocker
12620 SE Cora St.
Portland, Oregon 97236
Plaintiff Pro Se
HERNÁNDEZ, District Judge:
Pro se plaintiff Tyrone Blocker brings this action against HSBC Bank USA. Plaintiff
moves to proceed in forma pauperis. Because he has no appreciable income or assets, the Court
grants the motion. However, for the reasons explained below, the Court dismisses the Complaint.
STANDARDS
A complaint filed in forma pauperis may be dismissed at any time, including before
service of process, if the court determines that:
1- OPINION & ORDER
(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 “where it lacks an arguable basis in law or
in fact.” Neitzke, 490 U.S. at 325; Jackson v. State of Ariz., 885 F.2d 639, 640 (9th Cir. 1989).
As the Ninth Circuit has instructed however, courts must “continue to construe pro se
filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se complaint filed
“‘must be held to less stringent standards than formal pleadings drafted by lawyers.’” Id.
(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). A pro se litigant will be given
leave to amend his or her complaint unless it is clear that the deficiencies of the complaint cannot
be cured by amendment. Lopez, 203 F.3d at 1130–31.
DISCUSSION
I. Allegations
Plaintiff’s Complaint includes (1) his name and address, (2) the name of Defendant
without an address, (3) a marked checkbox indicating that the basis for federal court jurisdiction
is “federal question,” (4) the phrase “fraudulent action” written in support of the basis of federal
jurisdiction, (5) a one sentence statement of the claim: “HSBC Bank USA did not have pecuniary
interest to transfer note and trust deed for auction purposes,” and (6) under the relief sought, a
request for “1,000,000 dollars in damages.”
2- OPINION & ORDER
II. Federal Rule of Civil Procedure 8
“The Federal Rules of Civil Procedure describe ‘a liberal system of notice pleading.’”
Walsh v. Nev. Dep't of Human Resources, 471 F.3d 1033, 1036 (9th Cir. 2006) (quotation
omitted). This notice pleading system “requires a complaint to contain (1) a statement of
jurisdiction, (2) ‘a short and plain statement of the claim showing that the pleader is entitled to
relief,’ and (3) ‘a demand for judgment for the relief the pleader seeks.’” Id. (quoting Rule 8(a)).
“[T]he pleading standard Rule 8 announces does not require detailed factual allegations,
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Iqbal, 556 U.S. at 678 (internal quotation omitted). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. . . . Nor
does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id.
(internal quotation omitted).
The complaint “must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face[,]” meaning “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (internal
quotation and citation omitted). The complaint must contain “well-pleaded facts” which “permit
the court to infer more than the mere possibility of misconduct.” Id.
Plaintiff fails to assert a “short and plain statement” of his claims. Plaintiff’s one-sentence
statement of his claim is so lacking in specific factual content that the Court cannot draw a
reasonable inference that Defendant is liable for misconduct. Thus, the Complaint fails to state a
claim under Iqbal.
III. Jurisdiction
3- OPINION & ORDER
Rule 8 requires a pleading to contain “a short and plain statement of the grounds for the
court’s jurisdiction[.]” Fed. R. Civ. P. 8(a)(1). Federal courts are courts of limited jurisdiction.
Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 998 (9th Cir. 2007). Federal jurisdiction
may be based on the presence of a federal question or on diversity of citizenship. 28 U.S.C. §§
1331, 1332. To invoke federal question jurisdiction, Plaintiff must plead that Defendant has
violated some constitutional or statutory provision.
In his Complaint, Plaintiff indicates that the basis for jurisdiction is “federal question” but
he cites no federal constitutional, statutory, or treaty right at issue in the case. Plaintiff’s
statement, “fraudulent action,” is insufficient for the Court to identify or infer which federal
question Plaintiff asserts; an allegation merely of “fraudulent action” is not a federal question.
Accordingly, this Court lacks subject matter jurisdiction over Plaintiff’s Complaint, and must
therefore dismiss the Complaint. See Fed.R.Civ.P. 12(h)(3) (court is required to dismiss an
action if the court determines that it lacks subject matter jurisdiction); Scholastic Entm’t, Inc. v.
Fox Entm’t Group, Inc., 336 F.3d 982, 985 (9th Cir. 2003).
IV. Motion to Appoint Counsel
Finally, Plaintiff moves for a court-appointed attorney. 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, pursuant to 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).
4- OPINION & ORDER
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; Terrell v. Brewer, 935 F.2d 1015, 1017 (9th
Cir. 1991).
Here, it is inappropriate to consider Plaintiff's request when the Court is dismissing the
case. The Court denies the motion for appointment of counsel.
CONCLUSION
Plaintiff’s motion to proceed in forma pauperis [1] is granted. Plaintiff’s motion for
appointment of counsel [3] is denied. Based on the foregoing, Plaintiff’s Complaint [2] is
dismissed. Plaintiff may file an amended complaint, curing the deficiencies noted above, within
30 days of the date of this order. Plaintiff is advised that failure to file an amended complaint
which cures the deficiencies noted shall result in the dismissal of this proceeding, with prejudice.
IT IS SO ORDERED.
Dated this
day of
, 2014
MARCO A. HERNÁNDEZ
United States District Judge
5- OPINION & ORDER
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