United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL,
GRANTING MOTION TO DISMISS PLAINTIFF CALCOTE AND DIRECTING
PLAINTIFFS TO AMEND COMPLAINT.
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
Se Plaintiffs Rapheal Russell, Lashaunda Russell, and
Erica Calcote filed a Complaint on March 24, 2017. Dkt. #7.
Summonses have not yet been issued. From what this Court can
discern, Plaintiffs allege claims arising from a property
dispute. Mr. Russell complains that Defendants hit his power
line and cut his phone line while grading property with a
bulldozer. Id. Mr. Russell further claims that
Defendants trespassed on his property, removed dirt, altered
an easement road, damaged his drain field area, and covered
the damaged power and phone lines with rocks so that they
could not be accessed by Plaintiffs. Id. As a
result, Plaintiffs seek an Order from this Court directing
Defendants to replace the damaged power and phone lines, pay
for the dirt removed from the property, and pay for other
damage to the property. Plaintiffs also ask the Court to
replace the easement road “where it was surveyed and
recorded to be.” Id. at 4. Plaintiffs further
seek an Order precluding the sale or transfer of any of
Defendants' property until this case can be heard.
federal courts are courts of limited jurisdiction, a
plaintiff bears the burden of establishing that his case is
properly filed in federal court. Kokkonen v. Guardian
Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675,
128 L.Ed.2d 391 (1994); In re Ford Motor Co./Citibank
(South Dakota), N.A., 264 F.3d 952, 957 (9th Cir. 2001).
This burden, at the pleading stage, must be met by pleading
sufficient allegations to show a proper basis for the federal
court to assert subject matter jurisdiction over the action.
McNutt v. General Motors Acceptance Corp., 298 U.S.
178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). Further,
the Court will dismiss a Complaint at any time if the action
fails to state a claim, raises frivolous or malicious claims,
or seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915(e)(2)(B).
case, Mr. Russell states the following bases of jurisdiction
in this Court: 1) “I am black and will never get a fair
trial in Snohomish;” and 2) “[t]his property is
FHA” Dkt. #7 at 2. Neither of these statements provide
a proper basis for jurisdiction in this Court. Moreover,
property disputes of the nature described by Plaintiffs are
typically matters of state law, to be handled in a state
court. Accordingly, Plaintiffs' Complaint suffers from
deficiencies that, if not corrected in an Amended Complaint,
have also filed a Motion to Appoint Counsel. Dkt. #8. While
Plaintiffs do not proceed pro se in this matter, Mr.
Russell has previously been granted pro se status by
this Court in at least one case. See Russell v. Bank of
America, et al, Case No. C15-0306RSL, Dkt. #3.
Plaintiffs seek court-appointed counsel on the basis that
they have spoken with three attorneys, all of whom required a
$10, 000 retainer fee, which they cannot afford. Dkt. #8 at
civil cases, the appointment of counsel to a pro se
litigant “is a privilege and not a right.”
United States ex. Rel. Gardner v. Madden, 352 F.2d
792, 793 (9th Cir. 1965) (citation omitted).
“Appointment of counsel should be allowed only in
exceptional cases.” Id. (citing Weller v.
Dickson, 314 F.2d 598 (9th Cir. 1963)). A court must
consider together “both the likelihood of success on
the merits and the ability of the petitioner to articulate
his claims pro se in light of the complexity of the
legal issues involved.” Weygandt v. Look, 718
F.2d 952, 954 (9th Cir. 1983). Even where the claim is not
frivolous, counsel is often unwarranted where the
litigant's chances of success are extremely slim. See
Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985). At
this early stage of the litigation, the Court cannot find
that Plaintiff is entitled to appointment of counsel. It does
not yet appear that any exceptional circumstances exist, and
there is no record before the Court that would allow the
Court to examine whether Plaintiff's claims appear to
Plaintiffs have also sought to dismiss Plaintiff Erica
Calcote from this matter on the bases that she fears physical
harm if she continues in this lawsuit, and Mr. and Mrs.
Russell are currently unable to locate her. Dkt. #9. The
Court finds good cause to dismiss Ms. Calcote as a Plaintiff
in this matter.
result, the Court hereby ORDERS:
Plaintiffs shall file an Amended Complaint no later than
twenty-one (21) days from the date of this Order. In the
Amended Complaint, Plaintiffs must include a short and plain
statement demonstrating to the Court that there is federal
jurisdiction over their claims, either under federal question
or diversity jurisdiction.
Plaintiffs' Motion to Appoint Counsel (Dkt. #8) is DENIED
without prejudice for the reasons stated above. This Order
does not preclude Plaintiffs from re-filing their Motion if
and when a factual record pertaining to their claims has been
more fully developed.
Plaintiffs' Motion to Recluse [sic] Erica Calcote (Dkt.
#9) is GRANTED. Ms. Calcote shall be terminated as a
Plaintiff in this matter.
Clerk shall send a copy of this Order to Mr. and Mrs. Russell
and to Ms. Calcote at 14751 N. Kelsey St. #105, Box 137.
Monroe, WA 98272.