Cochran v. Stavris

Filing 10

ORDER granting 8 Plaintiff's Motion/Application for Leave to Proceed in forma pauperis, Plaintiff must pay the $350.00 filing fee. The Complaint (Doc. 1) and this action are dismissed for failure to state a claim without leave to amend. The Clerk must enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g). Signed by Judge Robert C Broomfield on 1/23/12.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Howard Cochran,
Plaintiff,

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vs.

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Christopher Stavris,
Defendant.

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No. CV 11-2098-PHX-RCB (JFM)
ORDER

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Plaintiff Howard Cochran, who is confined in the Fourth Avenue Jail in Phoenix,

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Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an

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Application to Proceed In Forma Pauperis. (Doc. 1, 8.) The Court will dismiss the

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Complaint and this action with prejudice.

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I.

Application to Proceed In Forma Pauperis and Filing Fee

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Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C.

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§ 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1).

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The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory

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fee will be collected monthly in payments of 20% of the previous month’s income each time

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the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a

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separate Order requiring the appropriate government agency to collect and forward the fees

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according to the statutory formula.

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...

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II.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought by prisoners seeking relief against

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a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

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claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

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be granted, or that seek monetary relief from a defendant who is immune from such relief.

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28 U.S.C. § 1915A(b)(1), (2).

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Id.

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

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allegations may be consistent with a constitutional claim, a court must assess whether there

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are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

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But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

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must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards

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than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

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94 (2007) (per curiam)).

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If the Court determines that a pleading could be cured by the allegation of other facts,
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a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the

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action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court

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will dismiss Plaintiff’s Complaint for failure to state a claim and dismiss this action without

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leave to amend because the Complaint cannot be amended to state a claim.

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III.

Plaintiff alleges three counts for violation of his Sixth Amendment rights. Plaintiff

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Complaint

sues attorney Christopher Stavris. Plaintiff seeks compensatory relief.

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Background

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Plaintiff is in the custody of the Maricopa County Sheriff pending criminal

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proceedings in Maricopa County Superior Court cases# CR2010161733 and CR2011101847.

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On October 11, 2011, Plaintiff pleaded guilty pursuant to plea agreements in both cases.1

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Until December 8, 2011, Defendant Stavris represented Plaintiff in connection with those

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proceedings.2 Plaintiff has not yet been sentenced.

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IV.

Failure to State a Claim

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To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the

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conduct about which he complains was committed by a person acting under the color of state

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law and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v.

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Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, a plaintiff must allege that he

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suffered a specific injury as a result of the conduct of a particular defendant and he must

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allege an affirmative link between the injury and the conduct of that defendant. Rizzo v.

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Goode, 423 U.S. 362, 371-72, 377 (1976).

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Plaintiff alleges that Defendant violated his Sixth Amendment rights by conspiring

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with a state official to secure Plaintiff’s conviction by: refusing to turn over evidence to

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See http://www.courtminutes.maricopa.gov/docs/Criminal/102011/m4932987.pdf
and http://www.courtminutes.maricopa.gov/docs/Criminal/102011/m4932988.pdf(last visited
Jan. 19, 2012).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/122011/m5017011.pdf
(last visited Jan. 19, 2012).
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Plaintiff so that he could investigate; falsely telling the court that the prosecution had timely

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made required disclosures; and refusing to fingerprint evidence that the state said was in

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Plaintiff’s possession. A prerequisite for any relief under 42 U.S.C. § 1983 are allegations

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to support that a defendant acted under the color of state law. Whether an attorney

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representing a criminal defendant is privately retained, a public defender, or court-appointed

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counsel, he does not act under color of state law. See Polk County v. Dodson, 454 U.S. 312,

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317-18 (1981); Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003) (en

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banc). Accordingly, Plaintiff fails to state a claim under § 1983 against Stavris based on his

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representation of Plaintiff in criminal proceedings.

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Further, the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971),

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prevents a federal court in most circumstances from directly interfering with ongoing

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criminal proceedings in state court. The Younger abstention doctrine also bars requests for

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declaratory and monetary relief for constitutional injuries arising out of a plaintiff’s ongoing

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state criminal prosecution. Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986). The Younger

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abstention doctrine also applies while a case works its way through the state appellate

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process, if a prisoner is convicted. New Orleans Pub. Serv., Inc. v. Council of City of New

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Orleans, 491 U.S. 350, 369 (1989). If Plaintiff believes that he was denied his Sixth

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Amendment right to the effective assistance of counsel, he should present that claim in his

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criminal proceedings, and/or on direct appeal or in state post-conviction review proceedings.

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For the reasons discussed, Plaintiff’s Complaint and this action will be dismissed.

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IT IS ORDERED:

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis is granted. (Doc. 8.)

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(2)

As required by the accompanying Order to the appropriate government agency,

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Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.
(3)

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The Complaint (Doc. 1) and this action are dismissed for failure to state a

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claim without leave to amend.

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(4)

The Clerk of Court must enter a judgment of dismissal of this action with

prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g).
DATED this 23rd day of January, 2012.

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