884 F2d 1395 Mitchell v. Abel

884 F.2d 1395

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Theodore H. MITCHELL, Plaintiff-Appellant,
Timothy ABEL; Abel & Abel Law Office, Defendants-Appellees.

No. 88-2438.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 16, 1989.
Decided Aug. 30, 1989.

Before GOODWIN, Chief Judge, and PREGERSON and REINHARDT, Circuit Judges.

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Plaintiff/appellant Theodore H. Mitchell is a former United States Postal worker. According to Mitchell's original complaint, he retained the law firm of Abel & Abel in June of 1984 to handle, on a contingent fee basis, "two claims for Federal Workmens Compensation for injuries and compensation and compensable rating of injuries sustained by the plaintiff of on the job injuries [sustained] 15 April 1982 and 24 January 1984." Although the firm filed two claims with the Office of Workers' Compensation Programs (OWCR) and came to some sort of agreement with OWCR on Mitchell's behalf, the firm ultimately declined to pursue Mitchell's case further.


Mitchell thereafter, on November 4, 1987, sued the firm and several of its lawyers who had been involved with his case, alleging they "negligently, unlawfully and carelessly prosecuted [his] claims," and that these actions demonstrated the defendants' involvement in a "civil conspiracy ... in furtherance of vicarious deprivation of plaintiff's Civil and Constitutional rights." His complaint listed several omissions by the firm specific enough, at least in a pro se pleading, to satisfy Fed.R.Civ.P. 8(a)(1), but these alleged omissions are relevant only to his malpractice claim, and not to his undefined conspiracy and constitutional claims. The alleged omissions include allegations that firm "[f]ailed to properly investigate matters," "[f]ailed to acquire necessary medical examination," failed "to submit evidence;" other claim represented only by a statement that the firm "[p]articipat[ed] in civil conspiracy to deprive plaintiff of Civil and Constitutional rights (with the Federal government).")


One of the named lawyers, Timothy Abel,1 filed a motion to dismiss based on lack of subject matter jurisdiction. The district court granted the motion on March 18, 1988, finding that "the complaint contains no jurisdictional statement and otherwise fails to allege any basis for federal jurisdiction."


Mitchell timely filed his notice of appeal on March 24, 1988, and we accordingly have jurisdiction. 28 U.S.C. Sec. 1291. We review the district court's dismissal de novo, and affirm.

A. Failure to Aver a Jurisdictional Basis


Rule 8(a)(a) provides, "A pleading which sets forth a claim for relief ... shall contain ... a short and plain statement of the grounds on which the court's jurisdiction depends...." Fed.R.Civ.P. 8(a)(1). Although the caption of Mitchell's complaint lists several federal rules and statutes, including 42 U.S.C. Secs. 1981 and 1983, this list has no verbal counterpart in the complaint itself. A suit arises under the constitution and laws of the United States only when the plaintiff's own statement of his cause of action shows it to be based upon the constitution or those laws.2 Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908). Unsupported conclusions of law in a complaint are not sufficient to support a finding of federal jurisdiction. McCarthy v. Mayo, 827 F.2d 1310, 1316 (9th Cir.1987).


We agree with the district court's conclusion that Mitchell failed to aver in his complaint a basis for federal jurisdiction.

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B. Lack of Actual Subject Matter Jurisdiction


Lack of actual, as well as stated, federal jurisdiction is a basis for dismissal under Rule 12(b)(1). See KVOS, Inc. v. Associated Press, 299 U.S. 269, 278 (1936) (district court ought to have dismissed complaint where truth of jurisdictional allegations was challenged and unsuccessfully defended). Because Mitchell is proceeding pro se, and because his conspiracy claim suggests that it is a civil rights claim, we examine his complaint closely to determine whether he could have made out a cause of action that would confer subject matter jurisdiction on the district court. Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).


Of the list of allegations in Mitchell's complaint, all but one, if true, would tend to show that the Abel firm was negligent in its handling of Mitchell's claims. The only allegation even potentially presenting a federal question is that the firm "[p]articipat[ed] in civil conspiracy to deprive plaintiff of Civil and Constitutional rights (with the Federal government)."3 The basis of Mitchell's claim is made clearer by reference to his opening brief on appeal. There, he states that the conspiracy alleged in his complaint was between defendants and "Federal agencies to deprive [Mitchell of his] cause of action under Federal jurisdiction." His theory of this conspiracy is that because defendants "knew of [Mitchell's] civil harassment due to select characteristic[s] [presumably, race] and retaliation by employer and insurance carrier," yet "deliberately refused to represent [Mitchell]," defendants engaged in a conspiracy with actors who were allegedly depriving him of constitutional rights.


Even if Mitchell had thus spelled out his claim in his complaint, he would not have succeeded in alleging a conspiracy. That a lawyer does not accept a case, or that he discontinues representation of his client, does not ipso facto imply that the lawyer is promoting or even condoning the alleged wrongdoing of the client's adversary, let alone that he is in a conspiracy with that adversary.


Moreover, his factual allegation concerning the number of individuals and governmental and corporate entities with which defendants are alleged to have conspired removes Mitchell's conspiracy claim to the realm of the fantastic. Mitchell's "Request for Trial De Novo"4 listed some 23 "co-dependants"5 ranging from Senator Cranston to the ACLU, from various postal service medical examiners to the Fair Housing and Employment Agency, and from California Attorney General Van De Kamp to the EEOC. A frivolous federal claim cannot confer subject matter jurisdiction on the district court. Baker v. Carr, 369 U.S. 186, 199 (1962). A complaint is frivolous if it lacks an arguable basis either in law or in fact. Cf. Neitzke v. Williams, 109 S.Ct. 1827, 1831 (1989) (construing 28 U.S.C. Sec. 1951(d)); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir.1984) (same). The term " 'frivolous,' when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation." Cf. Neitzke, 109 S.Ct. at 1831 (footnote omitted).


Nor does the fact that the claims Mitchell wished defendants to pursue may have constituted federal causes of action transform his malpractice action against defendants into a federal cause of action.


We conclude it is clear that Mitchell could not have amended his complaint to state a cause of action giving the district court jurisdiction. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir.1988) (stating standard for dismissal of pro se civil rights complaints under Rule 12(b)(6)).




This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


It appears that only the law firm itself and one of the named lawyers, Timothy Abel, were served. [Red at 2.]


If federal jurisdiction were to exist, it would necessarily be federal question jurisdiction. Although Mitchell states in his brief that "[t]he amount of relief sought establishes jurisdiction," [Blue at 4] there is no diversity between the plaintiff and defendants. See 28 U.S.C. Sec. 1332(a)


Mitchell also made the claim that defendants violated Rule 5-105 of the Rules of Professional Conduct. [ER 1 at 1.] He does not argue that this claim supports federal jurisdiction. In any event, although a federal court may discipline lawyers admitted to that court's bar, accepting jurisdiction of a suit merely to exercise its disciplinary power seems unreasonable


Mitchell's misnamed request (there was no trial) was more detailed than his original complaint in setting forth his claims


These parties are referred to in Mitchell's opening brief as "co-conspirators," which is undoubtably what he meant the term "co-dependants" to convey