Sharp v. Callahan et al

Filing 24

ORDER: Granting Motion to Dismiss 10 ; Denying Motion for Appointment of Counsel 13 . Plaintiff is ordered to show cause in writing why this action should not be dismissed unless there is an appearance by plaintiff's counsel within 90 days. Signed on 6/26/2012 by U.S. District Judge Michael R. Hogan. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
The Estate of MARJORY D. SHARP,
by and through her Personal
Representative, JEFFERY SHARP,
Plaintiff,

v.

CASE NO. 3:12-cv-0605-HO

CAROL CALLAHAN, OREGON CASCADES
WEST COUNCIL of GOVERNMENTS,
SAMARITAN HEALTH SERVICES,
INDEPENDENCE HEALTH and
REHABILITATION CENTER,

ORDER

Defendants.
INTRODUCTION
Pro se plaintiff Jeffrey Sharp, acting in his capacity as

personal representative for the Estate of Marjory Sharp
(plaintiff), brings three claims asserting violation of the 14th
Amendment, false imprisonment and wrongful death against
defendants Carol Callahan (Callahan); Oregon Cascades West
Council of Governments (OCWCG); Samaritan Health Services
(Samaritan); and Independence Health and Rehabilitation

Center (IHRC) .

[#2- pp.12-13].

Plaintiff also moves the court

for appointment of pro bono counsel.

[#13] .

Defendants Callahan and OCWCG move to dismiss because
plaintiff,

ft

a non-lawyer, may not represent the estate in this

case" in which there are mUltiple beneficiaries.

[#10; #12].

BACKGROUND
This action appears to arise as a result of Jeffrey Sharp's
dissatisfaction with his late mother's treatment by various caregivers and care-giver providers, while she was in a government
funded residence, as well as his arrest for elder abuse'.

[#21-

Ex. 7 ,p. 4,'1['[9-10] .
Plaintiff does not dispute that there are mUltiple
beneficiaries to Marjory Sharp's estate?' or that he is not an
attorney licensed to practice in Oregon.

[#2-Ex.l; #11].

DISCUSSION
1.

Motions to Dismiss

A Motion to Dismiss under Fed.R.Civ.P. 12(b) (6) is proper
only where there is a lack of a cognizable legal theory or the

After a bench trial, plaintiff was found not guilty of
the charge of criminal mistreatment in the first degree on
February 2, 2012.
[#2-Ex.ll] .
2

The record before the court indicates that Mrs. Sharp
died without a will and that she had at least two sons, Jeffery
and Christopher, thus, under ORS 112.045 her estate has at least
two beneficiaries.
[#2; #10]. It is unclear from the record
whether the estate had any creditors.
2 - ORDER

absence of sufficient facts alleged under a cognizable theory.
Balisteri v. Pacific Police Dept., 901 F. 2d 696,699 (9 th
Cir.1990).

The issue is not whether the plaintiff is likely to

succeed on the merits but if the complaint is sufficient to
entitle the plaintiff to proceed beyond the pleadings in an
attempt to establish his claim.

De La Cruz v. Torrey, 582 F.2d

45, 48 (9 th Cir 1978).
General:y, when ruling on a 12(b) (6) motion, a court may
only consider allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice.
Cir. 2000).

Shwarz v. United States, 234 F.3d 428, 435 (9th

However, the court need not accept allegations as

true that contradict facts that may be judicially noticed by the
court.

Shwartz v. KPMG, LLP, 476 F.3d 756, 763 (9th Cir 2007).

Additionally, the court's reliance on judicially-noticed
documents does not convert a motion to dismiss into a summary
judgment motion.

Intri-Plex tech., Inc. V. Crest Group, Inc.,

499 F.3d 1048, 1052 (9th Cir.2007).
The general rule establishing the right of an individual to
represent himself in federal courts of the United States is
intended to provide individuals with equal access to the courts.
See 28 U.S.C. §1654.

In other words, in an action brought by a

pro se litigant, the real party in interest must be the person
who "by substantive law has the right to be enforced."

3 - ORDER

C.E. Pope

~quity

Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987);

~ ~

McShane v. United States, 366 F.2d 286, 288 (9th

Cir.1966) ( the privilege to represent oneself pro se provided by
section 1654 is personal to the litigant and does not extend to
other parties or entities) .
Where, as here, an estate has multiple beneficiaries and
creditors, an attorney must represent a personal representative
before the court.

Simon v. Harford Life, Inc., 546 F.3d 661, 664

(9th Cir.200B) (courts have routinely adhered to the general rule
prohibiting pro se plaintiffs from pursuing claims on behalf of
others in a representative capacity).

These limits on pro se

representation serve the interests of the represented party as
well as the interests of adversaries and the court.

C.E. Pope

Equity Trust v. United States, 818 F.2d 696, 697-98 (9th

Cir.1987) (trustee attempting to represent a trust pro se was not,
pursuant to 28 U.S.C. §1654, a ftparty" conducting his ft own case
personally" as he was not the beneficial owner of the claims
being asserted) .
Under the circumstances in this case, the action cannot be
described as the litigant's own, because the personal interests
of the estate, other survivors, and possible creditors, will be
affected by the outcome of the proceedings.

A non-lawyer

representative, such as plaintiff, can not litigate claims that
are not personal to him.

4 - ORDER

2.

Motion for Appointment of Counsel:

Plaintiff also moves the court for appointment of pro bono
counsel.

[#13].

a civil case.

There is no constitutional right to counsel in

United States v. 30.64 Acres of Land, 795 F.2d

796, 801 (9th Cir. 1986).

While this court has discretion to

request volunteer counsel for indigent plaintiffs in exceptional
circumstances, the court has no power to make a mandatory
appointment.

Iowa, 490

u.s.

28 U.S.C.

§

1915(d); Mallard v.

u.s.

Dist. Court of

296, 301-08 (1989).

In order to determine whether exceptional circumstances
exist, the court evaluates the plaintiff's likelihood of success
on the merits and the ability of the plaintiff to articulate his
claim in light of the complexity of the legal issues involved.

Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir.1990);
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986).
However, n[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).n

Wilborn, 789 F.2d at 1331.

Although the facts and legal issues involved in this case
are not of substantial complexity, in light of plaintiff's in

forma pauperis status and his inartful attempts to articulate a
claim, the clerk of the court shall submit this matter to the
volunteer panel for the limited purpose of review to determine

5 - ORDER

possible pro bono representation.

28 U.S.C. §1915(e) (1).

CONCLUSION
Based on the foregoing reasoning, defendants Motion to
Dismiss [#10J is GRANTED.

Plaintiff's Motion for Appointment of

pro bono Counsel [#13] is DENIED.

Plaintiff is ordered to show

cause in writing, why this action should not be dismissed unless
there is an appearance by plaintiff's counsel within 90 days.
IT IS SO ORDERED.
DATED this

~~~

day of June, 2012.

I

6 - ORDER