Rivera v. Diamond

Filing 4

ORDER DISMISSING CASE. Signed by Judge William Alsup on 12/28/9. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 12/29/2009)

1 2 3 4 5 6 7 8 9 10 JAMES RIVERA, Plaintiff, v. GARY M. DIAMOND, Defendant. / INTRODUCTION Plaintiff, a California prisoner proceeding pro se, has filed a civil rights complaint under 42 U.S.C. 1983 against a former attorney who represented him in federal court. ANALYSIS A. STANDARD OF REVIEW Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the No. C 09-5863 WHA (PR) ORDER OF DISMISSAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although in order to state a claim a complaint "does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 1986-87. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). B. LEGAL CLAIMS Plaintiff claims that defendant, an attorney who represented him in a habeas action in federal court, committed legal malpractice. Attorneys in private practice are not state actors. Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); see also Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996) (attorneys are private actors). Services performed by a private attorney in connection with a lawsuit do not constitute action under color of state law. Franklin v. Oregon, 662 F.2d 1337, 1345 (9th Cir. 1981); Briley v. California, 564 F.2d 849, 855-56 (9th Cir. 1977). Similarly, appointed counsel does not act under color of state law in representing a client in court. Polk County v. Dodson, 454 U.S. 312, 318-19 (1981); accord Vermont v. Brillon, 129 S. Ct. 1283, 1291-92 (2009). In addition, claims for legal malpractice do not come within the jurisdiction of the federal courts. Franklin, 662 F.2d at 1344. It is not clear from the pleadings, whether defendant was a privately retained attorney, or one appointed by the court. In either event, plaintiff's legal malpractice claim against him is 2

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not cognizable under 42 U.S.C. 1983. CONCLUSION For the foregoing reasons, the complaint is DISMISSED. The clerk shall close the file. IT IS SO ORDERED.

Dated: December

28

, 2009.

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

United States District Court

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For the Northern District of California

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