Herrera v. Ciummo and Associates, et al.

Filing 5

FINDINGS and RECOMMENDATION Recommending Dismissal Without Leave to Amend re 1 signed by Magistrate Judge Gary S. Austin on 1/7/2015. Objections to F&R due by 2/12/2015. (Martinez, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RUBEN HERRERA,

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Plaintiff,

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v.

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1:14-cv-01492-AWI-GSA
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL
WITHOUT LEAVE TO AMEND
(Doc. No. 1)

CIUMMO AND ASSOCIATES; and
ALLICIA BORREGO,

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Defendants.

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INTRODUCTION

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Plaintiff Ruben Herrera (“Plaintiff”), appearing pro se, filed the instant complaint on

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September 22, 2014 against the law firm Ciummo and Associates and Allicia Borrego, one of the

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firm‟s attorneys. (Doc. No. 1.) The Complaint alleges a single claim under 42 U.S.C. § 1983. Id.

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The Court has screened the Complaint and RECOMMENDS that the Complaint be DISMISSED

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WITHOUT LEAVE TO AMEND.
DISCUSSION

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A.

Legal Standard
Under 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the Complaint
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to determine whether it “state[s] a claim on which relief may be granted,” is “frivolous or

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malicious,” or “seek[s] monetary relief against a defendant who is immune from such relief.” If

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the Court determines that the Complaint fails to state a claim, it must be dismissed. Id. Leave to

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amend may be granted to the extent that the deficiencies of the Complaint can be cured by

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amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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A complaint 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). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to „state a claim that is plausible on its face.‟”

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Ashcroft v. Iqbal, 556 U.S. at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations

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are accepted as true, legal conclusion are not. Id. at 678.

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In determining whether a complaint states an actionable claim, the Court must accept the

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allegations in the complaint as true, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738,

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740 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick

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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff‟s favor.

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to

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less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after

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Iqbal).
Despite this, however, a complaint must be dismissed where “none of the legal points are

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arguable on their merits.” Goland v. United States, 903 F.2d 1247, 1258 (9th Cir. 1990)

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B.

Plaintiff’s Allegations

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Plaintiff alleges that Defendants were appointed by Fresno County Superior Court to

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represent him in a commitment hearing under the Sexually Violent Predator Act, codified in

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California Welfare and Institutions Code § 6600 et seq. He further claims that he was treated with

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“obvious contempt” by Defendant Borrego and that Defendants lacked the necessary experience
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to represent him in this matter. (Doc. No. 1 at 5.) More specifically, he notes that Defendant

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Borrego met with him only once in person to discuss case strategy and that he was treated curtly

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when he contacted Defendants‟ office to complain about Defendant Borrego.1 Id.

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Plaintiff notes that he previously filed a motion requesting the appointment of new

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counsel, but that his motion was “denied without opinion.” Id. It is unclear from the face of the

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Complaint whether Defendants‟ representation of Plaintiff has concluded or what the outcome of

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his case (if any, at this point) was.

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C.

Analysis
Even construing all of Plaintiff‟s allegations in a light most favorable to Plaintiff, the

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Complaint cannot establish a claim under 42 U.S.C. § 1983 as a matter of settled law. To state a

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claim under § 1983, a plaintiff “must allege a violation of a right secured by the Constitution and

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laws of the United States, and must show that the alleged deprivation was committed by a

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person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis

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added). Plaintiff asserts that he was denied due process and equal protection by Defendants, his

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court-appointed defense attorneys, who were acting under color of state law. It is well-settled,

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however, that attorneys do “not act under color of state law when performing a lawyer‟s

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traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dodson,

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454 U.S. 312, 325 (1981) (upholding dismissal of a § 1983 claim by a pro se prisoner against a

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public defender that alleged that she failed to adequately represent him in criminal proceedings).

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Thus, none of Plaintiff‟s legal claims are arguable on their merits and they do not state a claim for

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which relief can be granted.

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Nor can any amendment cure this deficiency. The problem with the Complaint is not that

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Plaintiff has simply failed to allege that Defendants were acting under color of state law; the

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problem is that, as a matter of settled law, Defendants could not have been acting under color of

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state law in representing Plaintiff. Consequently, there is no way to remedy the Complaint‟s

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insufficiency by providing leave to amend.

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It is unclear from the Complaint precisely which of Defendant Borrego‟s strategic decisions Plaintiff objects to—
although he claims that he provided Defendant with a packet “to be submitted to the jury as evidence,” he later
complains that Defendant set “his case for trial.” (Doc. No. 1 at 5.)

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RECOMMENDATION

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For the reasons set forth above, the Court finds that the Complaint fails to state a claim

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under 28 U.S.C. § 1915(e)(2). Accordingly, it is recommended that the Complaint be

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DISMISSED WITHOUT LEAVE TO AMEND.

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These findings and recommendations will be submitted to the Honorable Anthony W.

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Ishii pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being

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served with these Findings and Recommendations, Plaintiff may file written objections with the

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Court. The document should be captioned “Objections to Magistrate Judge's Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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may waive the right to appeal the District Court‟s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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IT IS SO ORDERED.
Dated:

January 7, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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