White v. Sacramento Public Defenders Office, et al.

Filing 10

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/2/2014 DENYING plaintiff's 8 request for the appointment of counsel; and RECOMMENDING that this action be dismissed without leave to amend for failure to state a claim. Referred to Judge Troy L. Nunley; Objections due within 21 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LLOYD WHITE,

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No. 2:14-cv-1289 TLN AC P
Plaintiff,

v.

ORDER AND

SACRAMENTO PUBLIC DEFENDER’S
OFFICE, et al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and
has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This
proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §
1915(a). However, because the court finds that this complaint is subject to summary dismissal, a
filing fee will not be assessed.
Screening Requirement
The court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
“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

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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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556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility

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when the plaintiff pleads factual content that allows the court to draw the reasonable inference

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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).

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Plaintiff’s Allegations

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Plaintiff names the Sacramento (County) Public Defender’s Office, Melissa McElheney

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and Robert Woodard as defendants. Plaintiff alleges that although Melissa McElheney (of the

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Sacramento County Public Defender’s Office) was assigned as his counsel (in a criminal matter),

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he never accepted her as his counsel and “went back to pro per.” He claims that the visitors’ log

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at the Sacramento County Main Jail will show that she made an “illegal contact” with him in
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December of 2013 because there should only have been one legal visit which should have

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occurred only after she had been assigned to represent him. Plaintiff complains that because

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McElheney told the court that he had prison priors, the court added a year to his sentence. She

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also told the court that plaintiff might have more priors but that she did not have his file with her.

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Complaint, ECF No. 1 at 3-4.

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On September 4th of an unidentified year, plaintiff alleges that Robert Woodard, also

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apparently from the Public Defender’s Office, “cussed [plaintiff] out and threw paper-work at

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[him].” Plaintiff further claims that an audio and video recording “reveals” that his counsel

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allowed the district attorney to slander him and accuse plaintiff of rape and sodomy at a bail

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hearing in open court with his family members in attendance. Id. at 4.

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For relief, plaintiff wants the defendants “rights to counsel taken” and “full” (but

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unspecified) “compensation.” He also wants “Sacramento County and State of CA held

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responsible.” Id. at 3. In essence, what plaintiff alleges is that his counsel provided him

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ineffective assistance of counsel.

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No Cognizable Claim Under § 1983

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Plaintiff may be seeking to challenge his criminal conviction or sentence on grounds of

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ineffective assistance of counsel, for which an action under 42 U.S.C. § 1983 is not the

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appropriate vehicle.

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Federal law opens two main avenues to relief on complaints related
to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254,
and a complaint under the Civil Rights Act of 1871, Rev. Stat.
1979, as amended, 42 U.S.C. § 1983. Challenges to the validity of
any confinement or to particulars affecting its duration are the
province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475,
500[] (1973); requests for relief turning on circumstances of
confinement may be presented in a ' 1983 action.

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Muhammad v. Close, 540 U.S.749, 750-752 (2004) (per curiam). Plaintiff does not challenge the

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conditions of his confinement, and his claims therefore must be dismissed.

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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). Public defenders do “not act under

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color of state law for purposes of § 1983 when performing a lawyer’s traditional functions as

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counsel to a defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S. 312, 325

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(1981). This court finds that plaintiff has failed to state a claim under § 1983 because the only

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named defendants were not acting under color of state law.

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To the extent plaintiff seeks compensation from the State of California and intended to

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name the state as a defendant, plaintiff is informed that the Eleventh Amendment serves as a

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jurisdictional bar to suits brought by private parties against a state or state agency unless the state

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or the agency consents to such suit. See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh,

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438 U.S. 781 (1978) ( per curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir.

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1982). In the instant case, the State of California has not consented to suit. Accordingly,

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plaintiff's claims against the state are frivolous and must be dismissed.

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Summary Dismissal

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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.”)). The undersigned can discern no manner in which the

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defects of the complaint could be cured by amendment. The court will recommend summary

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dismissal of this action without leave to amend for plaintiff’s failure to state a claim.

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Request for Appointment of Counsel

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Plaintiff has requested appointment of counsel.

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the
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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th

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Cir. 2009) (district court did not abuse discretion in declining to appoint counsel); Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.

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1983). In this instance, because the court must recommend a summary dismissal of this action

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because plaintiff’s allegations lack merit altogether, the court does not find the requisite

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exceptional circumstances to warrant appointment of counsel and the request will be denied.

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Accordingly, IT IS ORDERED that plaintiff’s request for the appointment of counsel

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(ECF No. 8) is denied.
IT IS HEREBY RECOMMENDED that this action be dismissed without leave to amend
for failure to state a claim.
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. Such a 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: October 2, 2014

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