Whittington v. Sacramento County Jail, et al

Filing 35

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/03/12 recommending that defendant's 03/19/12 motion to dismiss 23 be granted. The complaint be dismissed without leave to amend; and the clerk be directed to close the case. MOTION to DISMISS 23 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PETER WHITTINGTON,
Plaintiff,

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vs.

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No. 2:10-cv-2118 KJM EFB P

JEFFREY BARBOUR,
Defendant.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff, incarcerated in the Sacramento County Jail, is suing without counsel for alleged

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civil rights violations. See 42 U.S.C. § 1983. Defendant moves to dismiss. Dckt. No. 23. For

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the reasons explained below, it is recommended that the motion be granted without leave to

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amend.

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I.

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Background
This action proceeds on the amended complaint filed February 2, 2011. Dckt. No. 13.

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Plaintiff alleges that defendant, an assistant public defender, violated plaintiff’s federally

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protected rights by releasing his personal information and address “to convicted child killer

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‘John Hunter.’” Id. at 3.1 As a result of defendant’s alleged release of plaintiff’s information,

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plaintiff alleges that he has suffered several severe beatings and attempts on his life. Id.

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Page numbers cited herein refer to those assigned by the court’s electronic docketing
system and not those assigned by the parties.
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Plaintiff provides more specifics in his opposition to the motion to dismiss. Dckt. No. 32.

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He alleges that his friend, John Hunter, confided to him that he (Hunter) had lost his temper with

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his infant, hurt the infant, and thereafter the baby did not respond. Id. at 2. After being picked

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up on a parole violation and returned to CSP-Solano, plaintiff cooperated with authorities

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investigating the infant’s death, presumably by informing them of what Hunter had confided. Id.

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Later, defendant, acting as Hunter’s public defender, subpoenaed letters that plaintiff had written

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to his mother. Id. at 3. Plaintiff alleges that defendant then gave copies of the letters, including

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the front of the envelope with plaintiff’s “Ex Ref. Number,” housing location, and his mother’s

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address, to Hunter. Id. According to plaintiff, Hunter then passed plaintiff’s information and the

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statement plaintiff had given authorities regarding Hunter on to a member of the gang plaintiff

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was in at the time. Id. Plaintiff was labeled a snitch and received several beatings. Id.

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II.

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Rule 12(b)(6) Standard
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain

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“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 570 (2007); id. at 554-56, 562-63 (stating that the 12(b)(6) standard that

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dismissal is warranted if plaintiff can prove no set of facts in support of his claims that would

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entitle him to relief “has been questioned, criticized, and explained away long enough,” and that

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having “earned its retirement,” it “is best forgotten as an incomplete, negative gloss on an

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accepted pleading standard”). Thus, the facts pleaded in the complaint must amount to “more

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than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Id.

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at 555. Instead, the “[f]actual allegations must be enough to raise a right to relief above the

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speculative level on the assumption that all the allegations in the complaint are true (even if

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doubtful in fact).” Id. (internal citation omitted). Dismissal may be based either on the lack of

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cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal

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theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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The complaint’s factual allegations are accepted as true. Church of Scientology of Cal. v.

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Flynn, 744 F.2d 694, 696 (9th Cir. 1984). The court construes the pleading in the light most

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favorable to plaintiff and resolves all doubts in plaintiff’s favor. Parks Sch. of Bus., Inc. v.

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Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General allegations are presumed to include

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specific facts necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

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(1992).

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The court may disregard allegations contradicted by the complaint’s attached exhibits.

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Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing,

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Inc., 143 F.3d 1293, 1295-96 (9th Cir.1998). Furthermore, the court is not required to accept as

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true allegations contradicted by judicially noticed facts. Sprewell v. Golden State Warriors, 266

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F.3d 979, 988 (9th Cir. 2001) (citing Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir.

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1987)). The court may consider matters of public record, including pleadings, orders, and other

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papers filed with the court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir.

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1986) (abrogated on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104

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(1991)). “[T]he court is not required to accept legal conclusions cast in the form of factual

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allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v.

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Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept

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unreasonable inferences, or unwarranted deductions of fact. Sprewell, 266 F.3d at 988.

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Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure

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its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before

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dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc); Noll v. Carlson,

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809 F.2d 1446, 1448 (9th Cir. 1987).

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III.

Analysis
Defendant first notes that plaintiff has failed to allege that defendant was acting under

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color of state law, a required element to establishing a cause of action under section 1983. The

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argument is well taken. The core of plaintiff’s claim against defendant is that defendant, in the

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course of his representation of Hunter, released plaintiff’s confidential and personal information

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to Hunter. A public defender does 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). Accordingly, defendant is not subject to suit under § 1983 for the

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alleged release of plaintiff’s information to his client during the course of his representation.

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Furthermore, the alleged release of plaintiff’s information did not violate a constitutional

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right to privacy. On the current record, plaintiff has not shown that he had a reasonable

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expectation of privacy in his prison identification number, housing location, and mother’s

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address. Defendant has demonstrated the public availability of plaintiff’s prison identification

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number and housing location via the Sacramento County Sheriff’s website, of which the court

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takes judicial notice. See Fed. R. Evid. 201(b)(2) (providing that the court may take judicial

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notice of facts capable of accurate and ready determination by resort to sources whose accuracy

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cannot reasonably be questioned). The address of plaintiff’s mother is not information that is

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generally considered private. See Russell v. Gregoire, 124 F.3d 1079, 1094 (9th Cir. 1997)

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(involving publication of “general vicinity of the offender’s residence”).

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Plaintiff offers to amend his complaint to include the details provided by his opposition

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to defendant’s motion to dismiss. However, because it is clear from plaintiff’s allegations in his

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complaint and opposition that defendant gave plaintiff’s information to Hunter in his capacity as

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Hunter’s defense attorney and that the information given was not protected by plaintiff’s

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constitutional right to privacy, amendment will not save plaintiff’s suit from dismissal.

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Accordingly, it is recommended that the motion to dismiss be granted without leave to amend.

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See Lopez, 203 F.3d at 1127-28.
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IV.

Recommendation

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For all of the above reasons, it is RECOMMENDED that:

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1. Defendant’s March 19, 2012 motion to dismiss (Docket No. 23) be granted;

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2. The complaint be dismissed without leave to amend; and

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3. The Clerk be directed to close the case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: December 3, 2012.

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