Belyew v. Stapleton

Filing 14

ORDER signed by Magistrate Judge Edmund F. Brennan on 09/07/17 GRANTING 5 , 6 , 8 , 10 motions to proceed in forma pauperis. Plaintiff shall pay the statutory filing fee of $350.00. All fees shall be collected in accordance with the court's order to the Sheriff of Butte County filed concurrently herewith. This action is dismissed pursuant to 28 USC 1915A. CASE CLOSED. (Plummer, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 LISA BELYEW, 11 Plaintiff, 12 13 No. 2:17-cv-1065-EFB P v. ORDER GRANTING IFP AND DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915A MARK STAPLETON, 14 Defendant. 15 Plaintiff is a pretrial detainee proceeding without counsel in an action brought under 42 16 17 18 U.S.C. § 1983.1 She seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. I. Request to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 19 20 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 21 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 22 § 1915(b)(1) and (2). 23 II. Screening Requirement and Standards 24 Federal courts must engage in a preliminary screening of cases in which prisoners seek 25 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 27 28 1 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4). 1 1 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 2 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 3 relief.” Id. § 1915A(b). 4 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 5 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 6 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 7 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 8 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 9 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 10 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 11 U.S. 662, 679 (2009). 12 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 13 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 14 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 15 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 16 678. 17 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 18 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 21 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 22 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 23 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 24 III. 25 Screening Order The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds it 26 must be dismissed without leave to amend. Plaintiff claims that her court-appointed attorney in 27 state court is pushing for a competency hearing over plaintiff’s objections. She refers to her 28 attorney as a “surrogate prosecutor” and alleges that he is stripping her of a right to a jury in her 2 1 criminal trial. ECF No. 1 at 4. She seeks damages and an order barring him from further 2 representing her. This court cannot provide plaintiff with the relief she seeks and this action will 3 therefore be dismissed. 4 First, plaintiff’s court-appointed attorney cannot be sued under § 1983. To state a claim 5 under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by 6 the Constitution or laws of the United States was violated, and (2) that the alleged violation was 7 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 8 (1988). “[A] public defender does not act under color of state law when performing a lawyer’s 9 traditional functions as counsel to a defendant in a criminal proceeding.” See Polk County v. 10 Dodson, 454 U.S. 312, 325 (1981). Because plaintiff’s claims are based on defendant’s allegedly 11 poor representation of plaintiff in a criminal case, defendant was not acting under color of state 12 law, and plaintiff cannot bring a claim for damages against him pursuant to § 1983. Furthermore, 13 any potential claim for legal malpractice does not come within the jurisdiction of the federal 14 courts. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). 15 Second, this court may not interfere with the state court’s criminal proceedings or 16 otherwise provide plaintiff with the injunctive relief she seeks. As a matter of comity, federal 17 courts may not enjoin pending state criminal proceedings where there is an adequate opportunity 18 to raise the federal question at issue, except under extraordinary circumstances. Younger v. 19 Harris, 401 U.S. 37, 49, 53 (1971); H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 20 2000). Although plaintiff claims that the trial judge is “prejudiced” (ECF No. 1 at 5), she has not 21 shown that the state court does not afford her “an opportunity to raise [her] constitutional claims” 22 or that exceptional circumstances warrant this court’s interference with the pending state 23 prosecution. Id. at 49. 24 For these reasons, plaintiff’s complaint must be dismissed without leave to amend. See 25 Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009); Silva v. Di Vittorio, 658 F.3d 1090, 1105 26 (9th Cir. 2011) (“Dismissal of a pro se complaint without leave to amend is proper only if it is 27 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” 28 (internal quotation marks omitted)); Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] 3 1 district court should grant leave to amend even if no request to amend the pleading was made, 2 unless it determines that the pleading could not be cured by the allegation of other facts.”). 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Plaintiff’s request to proceed in forma pauperis (ECF Nos. 5, 6, 8, 10) is granted. 5 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 6 in accordance with the notice to the Butte County Sheriff filed concurrently 7 herewith. 8 9 3. This action is dismissed pursuant to 28 U.S.C. § 1915A. DATED: September 7, 2017. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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