Calloway v. Baker et al

Filing 10

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Amended Complaint due by 2/18/2014. Signed by Judge Joseph C. Spero on 1/9/2014. (Attachments: # 1 Certificate/Proof of Service)(klhS, COURT STAFF) (Filed on 1/13/2014)

1
2
3
4
5

UNITED STATES DISTRICT COURT
6

NORTHERN DISTRICT OF CALIFORNIA

7
8
9

JAMISI JERMAINE CALLOWAY,
Plaintiff,

United States District Court
For the Northern District of California

10

ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.

11
12

No. C 13-3266 JCS (PR)

FREDERIC S. BAKER, et al.,
Defendants.

13

/

14
15

INTRODUCTION

16

This is a civil action filed by a pro se state prisoner. After review pursuant to

17

28 U.S.C. § 1915(e), the Court DISMISSES the complaint with leave to file an amended

18

complaint on or before February 18, 2014.1

19
20
21

DISCUSSION
A.

Standard of Review
In its initial review of this pro se complaint, this Court must dismiss any claim that is

22

frivolous or malicious, or fails to state a claim on which relief may be granted, or seeks

23

monetary relief against a defendant who is immune from such relief. See 28 U.S.C.

24
25
26
27

1

Plaintiff has consented to magistrate judge jurisdiction. The magistrate, then, has jurisdiction
to issue this order, even though defendants have not been served or consented to magistrate jurisdiction.
See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (holding that magistrate judge had jurisdiction
to dismiss prisoners action under 42 U.S.C. § 1983 as frivolous without consent of defendants because
they had not been served and therefore were not parties).

28
No. C 13-3266 JCS (PR)
ORDER OF DISMISSAL

1

§ 1915(e). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police

2

Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

3

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

5

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

6

plausibility when the plaintiff pleads factual content that allows the court to draw the

7

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

8

Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions

9

cast in the form of factual allegations if those conclusions cannot reasonably be drawn from

10
United States District Court
For the Northern District of California

4

the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

11

B.

12

Legal Claims
Plaintiff alleges claims against his former attorney Frederic Baker, and against

13

employees of the California State Bar Association. He alleges that Baker was an

14

incompetent attorney who violated his right to the effective assistance of counsel.

15

Plaintiff also alleges that the state bar employees denied his constitutional rights by ignoring

16

the record of Baker’s alleged misdeeds and by failing to discipline Baker in the way plaintiff

17

wished.

18

The complaint will be dismissed for the following reasons. Baker, whether a private

19

attorney or a public defender, is not liable under section 1983. Private actors are not liable

20

under § 1983. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). Also, a state-appointed

21

defense attorney “does not qualify as a state actor when engaged in his general representation

22

of a criminal defendant.” Polk County v. Dodson, 454 U.S. 312, 321 (1981). Polk County

23

“noted, without deciding, that a public defender may act under color of state law while

24

performing certain administrative [such as making hiring and firing decisions], and possibly

25

investigative, functions.” Georgia v. McCollum, 505 U.S. 42, 54 (1992) (citing Polk County,

26

454 U.S. at 325.) Under this standard, plaintiff’s allegations fail to state a claim for relief

27

under § 1983. Accordingly, the claims against Baker are DISMISSED with leave to amend.

28
No. C 13-3266 JCS (PR)
ORDER OF DISMISSAL

2

1

This Court may not be the correct forum for plaintiff’s claims against Baker. In his

2

amended complaint, plaintiff must allege facts that state a claim for relief and that show that

3

this Court has jurisdiction over such claims. Unlike state courts, “[f]ederal courts are courts

4

of limited jurisdiction. They possess only that power authorized by Constitution and statute.”

5

Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). The two main

6

classes of cases over which the federal courts have jurisdiction are those that present a

7

federal question, see 28 U.S.C. § 1331, and those in which the parties have diverse

8

citizenship and involve an amount in controversy exceeding $75,000, see 28 U.S.C. § 1332.

9

His claims against the state bar will be dismissed without leave to amend. First, the

United States District Court
For the Northern District of California

10

“Eleventh Amendment’s grant of sovereign immunity bars monetary relief from state

11

agencies such as California’s Bar Association.” Hirsh v. Justices of The Supreme Court of

12

The State of California, 67 F.3d 708, 715 (9th Cir. 1995). This immunity extends to

13

individuals performing the official functions of the state bar. Id. Second, this Court lacks

14

jurisdiction because the complaint fails to show an actual injury. The jurisdiction of federal

15

courts, as defined by Article III of the Constitution, is limited to “cases” and “controversies.”

16

Flast v. Cohen, 392 U.S. 83, 94 (1968). One element of a case or controversy is standing.

17

To prove standing, the party invoking federal jurisdiction must demonstrate, among other

18

things, that he has suffered actual or imminent particularized harm and that a favorable

19

judicial decision would redress that harm. Lujan v. Defenders of Wildlife, 504 U.S. 555,

20

560-61 (1992). If the party cannot demonstrate such harm, then the party has no standing

21

and the federal court has no jurisdiction over the claim. Plaintiff has not shown an actual

22

harm or imminent particularized harm. A state bar ruling plaintiff dislikes is not an actual

23

injury, and he alleges no facts indicating any actual injury resulting from the decision.

24

Accordingly, plaintiff’s claims against the state bar and its employees are DISMISSED

25

WITH PREJUDICE.

26
27

Because of these deficiencies, the complaint is DISMISSED with leave to amend.
Plaintiff shall file an amended complaint on or before February 18, 2014. The first

28
No. C 13-3266 JCS (PR)
ORDER OF DISMISSAL

3

1

amended complaint must include the caption and civil case number used in this order

2

(13-3266 JCS (PR)) and the words FIRST AMENDED COMPLAINT on the first page.

3

It must also address all deficiencies discussed above. Because an amended complaint

4

completely replaces the previous complaints, plaintiff must include in his first amended

5

complaint all the claims he wishes to present and all of the defendants he wishes to sue.

6

See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate

7

material from the prior complaint by reference. Failure to file an amended complaint in

8

accordance with this order will result in dismissal of this action without further notice to

9

plaintiff.

United States District Court
For the Northern District of California

10

It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

11

informed of any change of address by filing a separate paper with the clerk headed “Notice

12

of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask

13

for an extension of time to do so. Failure to comply may result in the dismissal of this action

14

pursuant to Federal Rule of Civil Procedure 41(b).

15
16

IT IS SO ORDERED.
DATED: January 9, 2014
JOSEPH C. SPERO
United States Magistrate Judge

17
18
19
20
21
22
23
24
25
26
27
28

No. C 13-3266 JCS (PR)
ORDER OF DISMISSAL

4