United States District Court, D. Nevada
MARK W. WEORNER, Plaintiff,
STATE OF NEVADA, CLARK COUNTY COURT, Defendant.
HOFFMAN, JR., UNITED STATES MAGISTRATE JUDGE
before the court is pro se Plaintiff Mark W. Weorner's
application to proceed in forma pauperis (ECF No.
4), filed on June 2, 2017. Also before the Court is
Plaintiff's motion for appointment of counsel (ECF No.
7), filed on March 5, 2018.
IN FORMA PAUPERIS APPLICATION
has submitted the declaration required by 28 U.S.C. §
1915(a) showing an inability to prepay fees and costs or give
security for them. Accordingly, Plaintiff's request to
proceed in forma pauperis will be granted.
granting a request to proceed in forma pauperis, a
court must screen the complaint under 28 U.S.C. §
1915(e)(2). In screening the complaint, a court must identify
cognizable claims and dismiss claims that are frivolous,
malicious, file to state a claim on which relief may be
granted, or seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
Dismissal for failure to state a claim under §
1915(e)(2) incorporates the standard for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012). To survive § 1915 review, a complaint must
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The court liberally construes pro se complaints
and may only dismiss them “if it appears beyond doubt
that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.”
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)
(quoting Iqbal, 556 U.S. at 678).
considering whether the complaint is sufficient to state a
claim, all allegations of material fact are taken as true and
construed in the light most favorable to the plaintiff.
Wyler Summit P'ship v. Turner Broad. Sys. Inc.,
135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
Although the standard under Rule 12(b)(6) does not require
detailed factual allegations, a plaintiff must provide more
than mere labels and conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A formulaic
recitation of the elements of a cause of action is
insufficient. Id. Further, a Court may dismiss a
claim as factually frivolous if its allegations are
“clearly baseless, a category encompassing allegations
that are fanciful, fantastic, and delusional.”
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)
(internal citations and punctuation omitted). Unless it is
clear the complaint's deficiencies could not be cured
through amendment, a pro se plaintiff should be given leave
to amend the complaint with notice regarding the
complaint's deficiencies. Cato v. United States,
70 F.3d 1103, 1106 (9th Cir. 1995).
Plaintiff's complaint (ECF No. 1-1) alleges that he has
been unlawfully deprived of real property by the State of
Nevada and Clark County Court. Plaintiff claims that
unspecified property valued at more than $200, 000 was
unlawfully awarded to Carol Perea. Plaintiff does not provide
any dates, cite to any case in the Clark County Court, or
provide an address or description of the property he alleges
was taken from him. Plaintiff's complaint is devoid of
any meaningful facts to support his legal conclusions. The
Court therefore will recommend dismissal of Plaintiff's
complaint without prejudice for the Plaintiff to file an
Plaintiff chooses to file an amended complaint, the document
must be titled “Amended Complaint.” The amended
complaint must contain a short and plain statement describing
the underlying case, the defendant's involvement in the
case, and the approximate dates of its involvement.
See Fed. R. Civ. P. 8(a)(2). Although the Federal
Rules of Civil Procedure adopt a flexible pleading standard,
Plaintiff still must give a defendant fair notice of the
Plaintiff's claims against it and Plaintiff's
entitlement to relief.
amended complaint also must contain a short and plain
statement of the grounds for the court's jurisdiction.
See Fed. R. Civ. P. 8(a)(1). Regarding jurisdiction,
Plaintiff is advised that “[f]ederal district courts
are courts of limited jurisdiction, possessing only that
power authorized by Constitution and statute.” K2
Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024,
1027 (9th Cir. 2011) (quotation omitted). Federal district
courts “have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. Federal district
courts have original jurisdiction over civil actions in
diversity cases “where the matter in controversy
exceeds the sum or value of $75, 000” and where the
matter is between “citizens of different States.”
28 U.S.C. § 1332(a). “Section 1332 requires
complete diversity of citizenship; each of the plaintiffs
must be a citizen of a different state than each of the
defendants.” Morris v. Princess Cruises, Inc.,
236 F.3d 1061, 1067 (9th Cir. 2001).
Plaintiff is advised that if he files an amended complaint,
the original complaint (ECF No. 1-1) no longer serves any
function in this case. As such, the amended complaint must be
complete in and of itself without reference to prior
pleadings or other documents. The Court cannot refer to a
prior pleading or other documents to make Plaintiff's
amended complaint complete.
Appointment of Counsel
Plaintiff's motion for appointment of counsel, Civil
litigants do not have a Sixth Amendment right to appointed
counsel. Storseth v. Spellman, 654 F.2d 1349, 1353
(9th Cir. 1981). In very limited circumstances, federal
courts are empowered to request an attorney to represent an
indigent civil litigant. For example, courts have discretion,
pursuant to 28 U.S.C. § 1915(e)(1), to
“request” that an attorney represent indigent
civil litigants upon a showing of “exceptional
circumstances.” Ageyman v. Corrections Corp. of
America, 390 F.3d 1101, 1103 (9th Cir. 2004). The
circumstances in which a court will make such a request,
however, are exceedingly rare and require a finding of
extraordinary circumstances. United States v. 30.64 Acres
of Land, 795 F.2d 796, 799-800 (9th Cir. 1986). The
difficulties inherent in proceeding pro se do not qualify as
exceptional circumstances. Housewright, 900 F.2d
1332, 1335-1336 (9th Cir. 1990). Any pro se litigant
“would be better served with the assistance of
counsel.” Rand v. Rowland, 113 F.3d 1520, 1525
(9th Cir. 1997) (citing Wilborn, 789 F.2d at 1331).
determine whether the “exceptional circumstances”
necessary for appointment of counsel are present, courts
evaluate (1) the likelihood of plaintiff's success on the
merits and (2) the plaintiff's ability to articulate his
claim pro se “in light of the complexity of
the legal issues involved.” Agyeman, 390 F.3d
at 1103 (quoting Wilborn v. Escalderon, 789 F.2d
1328, 1331 (9th ...