Colabine v. Sacramento County Office of the Public Defender et al

Filing 5

ORDER signed by Magistrate Judge Allison Claire on 4/27/2015 DISMISSING this action, without prejudice; plaintiff's 2 motion to proceed IFP is DENIED as moot; and the Clerk shall close this case. CASE CLOSED.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS COLABINE,

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Plaintiff,

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No. No. 2:15-cv-0660 AC P

v.

ORDER

SACRAMENTO COUNTY OFFICE OF
THE PUBLIC DEFENDER, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights complaint and motion to

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proceed in forma pauperis. Plaintiff has consented to the jurisdiction of the undersigned

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Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c), and Local Rule 305(a). See

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ECF No. 4.
The only named defendant in this action is Hilary Davisson, the Sacramento County

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Public Defender who represented plaintiff in a criminal matter before the Sacramento County

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Superior Court, in Case No. 12F06176. Review of the website operated by the California courts1

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This court may take judicial notice of its own records and the records of other courts. See
United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631
F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts
that are capable of accurate determination by sources whose accuracy cannot reasonably be
questioned).
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indicates that this matter was appealed to the Court of Appeal, Third Appellate District, and a

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decision confirming plaintiff’s conviction was issued by that court on March 23, 2015, in Case

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No. C074144. Plaintiff filed his complaint in this action on the same day, alleging that Ms.

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Davisson provided ineffective assistance of counsel at trial. Plaintiff seeks another jury trial and

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damages.

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

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was acting under color of state law at the time of the challenged conduct; and (2) defendant’s

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conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or other

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laws of the United States. Parratt v. Taylor, 451 U.S. 27, 535 (1981), overruled on other grounds,

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Daniels v. Williams, 474 U.S. 327 (1986).

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It is well established that public defenders do not act under color of state law for purposes

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of Section 1983 when representing a criminal defendant. Polk County v. Dodson, 454 U.S. 312,

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325 (1981). This is because “[t]he decisions made by the public defender in the course of

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representing [her] client were framed in accordance with professional canons of ethics, rather

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than dictated by any rule of conduct imposed by the State.” Blum v. Yaretsky, 457 U.S. 991,

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1009 (1982) (citing Polk, 454 U.S. at 318). For this reason, plaintiff is unable to state a

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cognizable civil rights claim against his public defender, thus requiring dismissal of this action.

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Plaintiff is informed, however, that after he has exhausted his claims in the California

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Supreme Court,2 he may seek to pursue a federal petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254. Habeas corpus is the exclusive remedy for a prisoner to challenge his conviction

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and/or sentence. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). However, a habeas claim

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must first be exhausted in the state’s highest court before it may be raised in federal court. See

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Rose v. Lundy, 455 U.S. 509 (1982).

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Accordingly, IT IS HEREBY ORDERED that:

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1. This action is dismissed without prejudice, see Fed. R. Civ. P. 41(b);

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2. Plaintiff’s motion to proceed in forma pauperis is denied as moot; and

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Review of the California courts’ website indicates that plaintiff has not yet pursued in the
California Supreme Court the Court of Appeal’s March 25, 2015 decision in Case No. C074144.
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3. The Clerk of Court is directed to close this case.
DATED: April 27, 2015

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