United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
THERESA L. FRICKE UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on plaintiffs commencement of an
action on June 11, 2018, proceeding pro se and
seeking in forma pauperis status. Dkt. 1. This
matter has been referred to the undersigned Magistrate Judge.
Mathews, Sec 'y of H.E. W. v. Weber, 423 U.S.
261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR
has not filed any complaint, but seeks from this Court the
appointment of counsel, apparently to represent him before
Washington's Board of Industrial Insurance Appeals and
before the Washington Supreme Court. For the reasons set
forth below, this matter must be dismissed because this Court
lacks authority to provide the relief plaintiff seeks.
Because no amendment can result in a claim upon which this
Court would be empowered to grant the requested relief, the
Court recommends that this matter be dismissed with
prejudice. In light of this recommended disposition, the
Court also recommends denial of plaintiff s in forma
11, 2018, plaintiff submitted for filing a defective motion
to proceed in forma pauperis, together with a
"Motion, Order, and Affidavit for Telephonic
Hearing" and a "Motion to Appoint Ad Hoc Counsel to
Represent Petitioner on All Matters of Law Pertaining to the
Litigation in Industrial Appeals." Dkt. 1. He did not
file any complaint, nor state any cause of action against any
party, and after two deficiency notices from the Clerk of the
Court, has still not done so. Dkts. 2, 6.
captions of the documents submitted by plaintiff listed the
"Department of Corrections Correctional
Industries/Dep't of Labor & Industries/WA Attorney
General" as the opposing parties, and listed this Court,
the Washington State Supreme Court, and the Washington State
Board of Industrial Insurance Appeals in the heading
identifying the court in which he is proceeding. Dkt. 1. It
appears from these documents that plaintiff is seeking
counsel to represent him in wholly separate proceedings in
different state courts; he specifically identifies a matter
pending before the Washington Board of Industrial Insurance
Appeals, and more generally seems also to refer to a matter
or matters before the Washington Supreme Court. Id.
subsequently submitted another in forma pauperis
application, together with a Petition for Habeas Corpus; this
has been docketed as matter C18-5511 RJB-TLF, and is
proceeding as a separate matter.
Court must dismiss the claims of a prisoner "at any time
if the [C]ourt determines" that the action: (a) "is
frivolous or malicious"; (b) "fails to state a
claim on which relief may be granted"' or (c)
"seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2); 28
U.S.C. § 1915A(a), (b). A complaint is frivolous when it
has no arguable basis in law or fact. Franklin v.
Murphy, 745 F.3d 1221, 1228 (9th Cir. 1984).
before the Court may dismiss the complaint as frivolous or
for failure to state a claim, it "must provide the
[prisoner] with notice of the deficiencies of his or her
complaint and an opportunity to amend the complaint prior to
dismissal." McGuckin v. Smith, 974 F.2d 1050,
1055 (9th Cir. 1992, overruled on other grounds, WMX
Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir.
1997). However, leave to amend need not be granted
"where the amendment would be futile or where the
amended complaint would be subject to dismissal."
Saul v. United States, 928 F.2d 829, 843 (9th Cir.
1991) (citing Reddy v. Litton Indus., Inc., 912 F.2d
291, 296 (9th Cir. 1990).
has not filed any complaint in this matter. Dkt. 1. But even
if he had done so, the relief he seeks is beyond the
jurisdiction of this Court. Plaintiff seeks the appointment
of counsel to represent him before entirely separate
tribunals of Washington State, over which this Court has no
jurisdiction. This Court "has no authority to appoint
counsel for plaintiff in a civil proceeding in state
court." Brigaerts v. Cardoza, 952 F.2d 1399 at
*1 (9th Cir. 1992). Plaintiff should direct his request for
counsel to the courts in which his matters are pending.
in light of the Court's recommended disposition of this
matter, the Court also recommends denial of plaintiff s
in forma pauperis application in this
has stated no claim upon which relief can be granted. The
relief plaintiff seeks is not within the Court's power to
grant even if a claim had been properly stated. This is a
deficiency that cannot be cured by any amended pleading;
therefore dismissal of this action with prejudice for failure
to state a claim under 42 ...