Vieira v. Van Winkle

Filing 8

ORDER OF DISMISSAL 4 (Illston, Susan) (Filed on 10/9/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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RICHARD JOHN VIEIRA,

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No. C 14-3568 SI (pr)

Plaintiff,

ORDER OF DISMISSAL

v.
WESLEY A. VAN WINKLE,
Defendant.
/

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Richard John Vieira, an inmate on death row at San Quentin State Prison, filed this pro

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se civil rights action under 42 U.S.C. § 1983 against his appointed counsel. In his complaint,

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he complains about counsel's representation during Vieira's capital appeal. His complaint is now

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before the court for review under 28 U.S.C. § 1915A and § 1915(e)(2).

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A federal court must engage in a preliminary screening of any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity. See

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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss

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any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted,

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or seek monetary relief from a defendant who is immune from such relief. See id. at 1915A(b).

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Even if § 1915A does not apply – as, for example, occurs when the prisoner-plaintiff does not

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seek redress from a governmental entity or officer or employee of a governmental entity –

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§ 1915 permits the court to review a complaint filed in forma pauperis, and dismiss the action

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if the complaint fails to state a claim upon which relief may be granted. See 28 U.S.C.

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§ 1915(e)(2)(B)(ii). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica

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Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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Federal courts are courts of limited jurisdiction. As relevant here, the court only has

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jurisdiction to entertain this action if it raises a federal question, such as a civil rights claim

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asserted under 42 U.S.C. § 1983. (There are other federal statutes that grant other bases of

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federal court jurisdiction, but none are applicable to this action.) In simple terms, a prisoner's

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complaint can go forward in federal court if a claim is stated under § 1983; if a complaint does

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not state a claim under § 1983, the plaintiff must file his action in state court.

United States District Court
For the Northern District of California

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a

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person acting under the color of state law (2) violated a right secured by the Constitution or laws

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of the United States. See West v. Atkins, 487 U.S. 42, 48 (1988).

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The amended complaint fails to state a claim under § 1983 because the defendant is not

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a state actor. State court criminal defendants cannot sue their lawyers in federal court for most

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lawyer-type mistakes. A public defender does not act under color of state law, an essential

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element of an action under 42 U.S.C. § 1983, when performing a lawyer’s traditional functions,

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such as entering pleas, making motions, objecting at trial, cross-examining witnesses, and

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making closing arguments. Polk County v. Dodson, 454 U.S. 312, 318-19 (1981); cf. Vermont

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v. Brillon, 556 U.S. 81, 84 (2009) (state court erred in ranking assigned counsel essentially as

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state actors for purposes of evaluating speedy trial claim). A private attorney under court

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appointment to represent a prisoner in a capital appeal also is not a state actor. See Simmons

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v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003).

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conclusory allegations of conspiracy do not suffice to transform the private attorney's actions

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into state action. See id. As the defendant here is not a state actor, he has no liability under

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§ 1983 for the acts and omissions alleged by plaintiff in this action.

Plaintiff's

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For the foregoing reasons, this action is DISMISSED for failure to state a claim upon

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which relief may be granted. Leave to amend will not be granted because the defect in the

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complaint is not curable.
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In light of the dismissal of this action, plaintiff's motion for appointment of counsel is
DENIED. (Docket # 4.)

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The clerk shall close the file.

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IT IS SO ORDERED.

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Dated: October 9, 2014

_______________________
SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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