Humes v. Olson

Filing 4

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/13/2017 ORDERING Clerk of Court to randomly assign a US District Judge to this action and RECOMMENDING 1 Complaint be dismissed without leave to amend. Assigned and referred to Judge John A. Mendez. Objections due within 21 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JON HUMES,

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Plaintiff,

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No. 2:17-cv-2327 AC P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

TRACIE OLSON,

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Defendant.

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Plaintiff, a county prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983.

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ECF No. 1.
I.

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Application to Proceed In Forma Pauperis
Plaintiff has not paid the filing fee or requested leave to proceed in forma pauperis.

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However, the court will not assess a filing fee at this time. Instead, the undersigned will

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recommend that the complaint be summarily dismissed.
II.

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Complaint

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Plaintiff alleges that his Fourteenth Amendment due process rights and rights to family

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and to procreate were violated by his public defender, defendant Olson, when she failed to take

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action during his criminal proceedings, which resulted in plaintiff remaining in jail and losing

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custody of his daughter. ECF No. 1 at 3-5.

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III.

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Failure to State a Claim
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

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the Constitution and laws of the United States, and must show that the alleged deprivation was

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committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)

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(citations omitted). “[A] public defender does not act under color of state law when performing a

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lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v.

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Dodson, 454 U.S. 312, 325 (1981).

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In this case, plaintiff’s claims against Olson are based on his allegations that she was

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deficient in carrying out her duties as counsel. Because plaintiff’s allegations are about Olson’s

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actions in representing him as a public defender, Olson was not acting under color of state law.

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This means that plaintiff cannot bring a claim against her under § 1983. Furthermore, any

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potential claims for legal malpractice do not come within the jurisdiction of the federal courts.

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Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). For these reasons, the claims against

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defendant Olson should be dismissed without leave to amend.

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IV.

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No Leave to Amend
Leave to amend should be granted if it appears possible that the defects in the complaint

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could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31

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(9th Cir. 2000) (en banc); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se

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litigant must be given leave to amend his or her complaint, and some notice of its deficiencies,

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unless it is absolutely clear that the deficiencies of the complaint could not be cured by

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amendment.” (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987))). However, if, after

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careful consideration, it is clear that a complaint cannot be cured by amendment, the court may

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dismiss without leave to amend. Cato, 70 F.3d at 1005-06.

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The undersigned finds that, as set forth above, the complaint fails to state a claim upon

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which relief may be granted and that amendment would be futile. The complaint should therefore

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be dismissed without leave to amend.

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V.

Plain Language Summary of this Order for a Pro Se Litigant
Your claims should be dismissed because even if what you say is true, your defense

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attorney cannot be sued under § 1983. That civil rights statute is for lawsuits against individuals

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who act “under color of state law,” which generally means state and local officials. It does not

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include public defenders.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a
United States District Judge to this action.
IT IS FURTHER RECOMMENDED that the complaint 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: November 13, 2017.

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