Prum v. Jones

Filing 5

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 01/13/14 ORDERING that the clerk of the court make a random assignment of a district judge to this case. U.S. District Judge Lawrence K. Karlton randomly assigned to this action. Also, RECOMMENDING that this action be dismissed. Referred to Judge Lawrence K. Karlton. Objections due within 21 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHANREASMEY PRUM,

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Plaintiff,

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v.
REBECCA P. JONES,

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No. 2:13-cv-2509 AC P

ORDER &
FINDINGS AND RECOMMENDATIONS

Defendant.

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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42

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U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915. Plaintiff has not, however, filed his application for leave to proceed in forma

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pauperis on the form used by this district. Nevertheless, because this complaint calls for

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summary dismissal, the court will not require plaintiff to provide the application on the

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appropriate form and no filing fee will be assessed.
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a cause of
action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading

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must contain something more. . . than . . . a statement of facts that merely creates a suspicion [of]

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a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and

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Procedure § 1216, pp. 235-35 (3d ed. 2004). “[A] complaint must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

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566 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id.

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740

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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421(1969).
Plaintiff names as the sole defendant Rebecca Jones, his state appellate counsel.1 Plaintiff

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alleges that the defendant, while acting in her capacity as his appointed appellate attorney,

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revealed a client confidence. Specifically, Ms. Jones allegedly revealed that plaintiff had shot the

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fatal bullet. Because the evidence was unclear as to the identity of the shooter, and four

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The complaint alleges that defendant Jones was employed by the Central California Appellate
Program (“CCAP”). CCAP administers the appellate panel for the Third and Fifth District Courts
of Appeal.
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defendants were charged, plaintiff alleges that Ms. Jones’ actions have impaired his current and

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future chances for relief. Plaintiff seeks punitive damages. ECF No. 1.

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In order to state a claim under section 1983, a plaintiff must allege that: (1) defendant was

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acting under color of state law at the time the act complained of was committed; and (2)

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defendant’s conduct deprived plaintiff of rights, privileges or immunities secured by the

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Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 27, 535 (1981), overruled

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on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). “Once a lawyer has undertaken the

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representation of an accused, the duties and obligations are the same whether the lawyer is

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privately retained, appointed, or serving in a legal aid or defender program.” Polk County v.

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Dodson, 454 U.S. 312, 449-51 (1981). Thus, even public defenders, who are paid by the state, do

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not act under color of state law for purposes of § 1983. Id., 454 U.S. at 321; Dyer v. Rosenberg,

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434 F.2d 648 (9th Cir. 1970) (retained defense counsel who failed to file opening brief on appeal

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was not acting under color of state law).

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“Under Ninth Circuit case law, district courts are only required to grant leave to amend if

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a complaint can possibly be saved. Courts are not required to grant leave to amend if a complaint

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lacks merit entirely.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). See also, Smith v.

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Pacific Properties and Development Corp., 358 F.3d 1097, 1106 (9th Cir. 2004), citing Doe v.

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United States, 58 F.3d 494, 497(9th Cir.1995) (“a district court should grant leave to amend even

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if no request to amend the pleading was made, unless it determines that the pleading could not be

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cured by the allegation of other facts.”).

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This court finds that plaintiff has failed to state a claim under § 1983 because the only

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named defendant was not acting under color of state law. Accordingly, IT IS ORDERED that the

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Clerk of the Court make a random assignment of a district judge to this case.

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IT IS HEREBY RECOMMENDED that this action be dismissed. See Fed. R. Civ. P.
41(b).
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 twenty-one days

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after being served with these findings and recommendations, plaintiff may file written objections
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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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DATED: January 13, 2014

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