Modrall v. Oregon State Bar et al
OPINION AND ORDER: Plaintiff's application for leave to proceed IFP 1 is granted. Plaintiff's motion for appointment of counsel 3 is denied. Plaintiff's Complaint 2 is dismissed with prejudice. Signed on 3/17/2017 by Judge Marco A. Hernandez. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBERT G. MODRALL,
OPINION & ORDER
OREGON STATE BAR and
TROY J. WOOD,
Robert G. Modrall
894 Yates Springs Rd.
Ringgold, GA 30736
Plaintiff Pro Se
HERNÁNDEZ, District Judge:
Pro se Plaintiff Robert Modrall brings this action against the Oregon State Bar (OSB) and
Troy J. Wood. Plaintiff moves to proceed in forma pauperis (IFP) and he moves for appointment
of counsel. While Plaintiff’s IFP application lacks the requisite detail for this Court to determine
1- OPINION & ORDER
whether Plaintiff qualifies, the Court grants the motion for the limited purpose of this initial
review of Plaintiff’s Complaint. The Court dismisses the Complaint with prejudice and denies
Plaintiff’s motion for appointment of counsel.
A complaint filed in forma pauperis may be dismissed at any time, including before
service of process, if the court determines that:
(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
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 “‘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.
2- OPINION & ORDER
Plaintiff provides the following statement of his claim:
Young Mr. Wood is a child and his egregious negligence and criminal misconduct is
clear as he was provided with recusals from his superiors in the federal courts and his
actions as well as that of his subordinates are causing considerable hardship for a more
Compl. 5, ECF 2. Plaintiff also attaches a letter he received from Troy J. Wood, Assistant
General Counsel for OSB. Id. at 8. In the letter, Mr. Wood states that the OSB reviewed a
complaint Plaintiff filed against attorney Christopher O’Connor. Id. Plaintiff alleged that Mr.
O’Connor was rude and discourteous to him. Id. Mr. Wood explains that, while OSB does not
condone rude behavior, it does not conclude that any professional misconduct occurred. Id.
Plaintiff alleges that the basis for jurisdiction for his complaint in front of this Court is
“Federal Question.” Compl. 4. When asked to list the specific federal statutes, federal treaties,
and/or provisions of the United States Constitution that are at issue in this case, Plaintiff writes:
“Please refer to Eleventh Circuit Case #15-15121-AA.” Id.
As for the relief sought, Plaintiff asks for “restitution for expenses incurred, damages,
civil, and human rights abuses from June 2014 to present as determined by the court.” Id. at 6.
The Federal Rules of Civil Procedure describe “a liberal system of ‘notice pleading.’”
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168,
(1993). 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.’” Walsh v. Nevada Dep't
of Human Res., 471 F.3d 1033, 1036 (9th Cir. 2006) (quoting Rule 8(a)).
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“[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.
Here, Plaintiff fails to assert a “short and plain statement” of his claims. Plaintiff’s
statements of his claim and the relief sought are 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.
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, a plaintiff must plead that the defendant has
violated some constitutional or statutory provision. Diversity jurisdiction requires that all
plaintiffs be of different state citizenship than all defendants. Pullman Co. v. Jenkins, 305 U.S.
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534, 541 (1939). To establish diversity jurisdiction, plaintiffs must allege that they are citizens of
one state, that all of the defendants are citizens of other states, and that the damages are more
In his Complaint, Plaintiff indicates that the basis for jurisdiction is federal question.
However, he cites no federal constitutional, statutory, or treaty right at issue in the case. Nor is
the Court able to independently discern any federal right at issue in this case. Because Plaintiff
fails to identify the basis for federal jurisdiction, this Court lacks subject matter jurisdiction and
must 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).
Plaintiff seeks to bring a claim against the OSB. His claim, even if properly stated, would
be barred by the Eleventh Amendment. See Paulson v. Oregon State Bar, 609 F. App'x 511, 512
(9th Cir. 2015); Hirsh v. Justices of Supreme Court of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (a
state bar association is entitled to Eleventh Amendment immunity and state bar prosecutors are
entitled to quasi-judicial immunity). The Eleventh Amendment bars citizens from suing states in
federal court for money damages or declaratory relief absent waiver by the state or abrogation by
Congress. Cory v. White, 457 U.S. 85, 90–91 (1982). OSB is an instrumentality of the State of
Oregon. See Or. Rev. Stat. § 9.010(2) (describing OSB as an “instrumentality of the Judicial
Department of the government of the State of Oregon[.]”). Plaintiff presents no evidence or
authority that OSB waived its immunity, nor has Congress abrogated that authority under the
circumstances alleged by Plaintiff.
5- OPINION & ORDER
Similarly, Mr. Wood is immune from Plaintiff’s claim for monetary damages under the
Eleventh Amendment for acts in his official capacity. A state official is immune from suits for
damages under the Eleventh Amendment absent waiver or congressional abrogation. Krainski v.
Nevada, 616 F.3d 963, 968 (9th Cir. 2010). The only exception is “when the relief sought is
prospective in nature and is based on an ongoing violation of the plaintiff's federal constitutional
or statutory rights.” Id. (internal quotation omitted). Here, Plaintiff seeks restitution and
damages. Compl. 6. He does not seek prospective relief, nor does he allege any ongoing
violation of his federal constitutional or statutory rights. Thus, Plaintiff’s claim against Mr.
Wood is barred by Eleventh Amendment immunity.
Leave to Amend
For all of the reasons above, the Complaint must be dismissed. Additionally, because
Defendants are subject to Eleventh Amendment Immunity, the Complaint is dismissed with
prejudice, as amendment would be futile. See Fed. R. Civ. P. 15(a)(2) (“The court should freely
give leave [to amend] when justice so requires.”); but see Carrico v. City and Cnty. of San
Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011) (leave to amend is properly denied “if
amendment would be futile”).
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
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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.
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.
Plaintiff’s application for leave to proceed IFP  is granted. Plaintiff’s motion for
appointment of counsel  is denied. Plaintiff’s Complaint  is dismissed with prejudice.
IT IS SO ORDERED.
Dated this ________________ day of _______________________, 2017
MARCO A. HERNÁNDEZ
United States District Judge
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