White v. Morse

Filing 7

ORDER DISMISSING CASE. Signed by Judge James Donato on 1/7/16. (lrcS, COURT STAFF) (Filed on 1/7/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LARRY WHITE,
Plaintiff,

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DAVID MCNEIL MORSE, et al.,
Defendants.

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United States District Court
Northern District of California

ORDER OF DISMISSAL

v.

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Case No. 15-cv-04488-JD

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Larry White, a state prisoner, proceeds with a pro se civil rights complaint under 42 U.S.C.

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§ 1983. The original complaint was dismissed with leave to amend and plaintiff has filed an

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amended complaint and a second amended complaint.
DISCUSSION

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I.

STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by

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the Constitution or laws of the United States was violated, and (2) the alleged deprivation was

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United States District Court
Northern District of California

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

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II.

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LEGAL CLAIMS
In the original complaint, plaintiff alleged that his appellate attorney for his criminal

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conviction failed to timely send plaintiff the case transcripts. Plaintiff sought money damages.

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Plaintiff was informed that defendants in state court prosecutions cannot generally sue their

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lawyers under Section 1983 for mistakes in their representation. A public defender does not act

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under color of state law, an essential element of an action under 42 U.S.C. § 1983, when

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performing a lawyer’s traditional functions, such as entering pleas, making motions, objecting at

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trial, cross-examining witnesses, and making closing arguments. Polk County v. Dodson, 454

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U.S. 312, 318–19 (1981). A private attorney representing a defendant or appellant also is not a

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state actor. See Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir.

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2003). The complaint was dismissed with leave to amend for plaintiff to address these

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deficiencies.

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In the amended and second amended complaint plaintiff alleges that the presiding judge in

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his criminal trial had not filed an official oath of office within the time required. He argues that

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the arrest warrant issued by the judge was therefore invalid. He again seeks monetary damages.

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Plaintiff was convicted of multiple rapes after trial in 2008. In order to recover damages for an

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allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose
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unlawfulness would render a conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must

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prove that the conviction or sentence has been reversed on direct appeal, expunged by executive

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order, declared invalid by a state tribunal authorized to make such determination, or called into

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question by a federal court’s issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S.

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477, 486-487 (1994). A claim for damages bearing that relationship to a conviction or sentence

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that has not been so invalidated is not cognizable under § 1983. Id. at 487. Plaintiff is not entitled

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to relief because this fails to state a claim. Plaintiff previously brought a variation of this claim in

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a prior claim that was dismissed. See White v. City and County of San Francisco, Case No. 15-cv-

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3265-JD. Because it would be futile to allow further amendments this case is dismissed with

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prejudice.
CONCLUSION

United States District Court
Northern District of California

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This action is DISMISSED with prejudice for the reasons state above.

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The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: January 7, 2016

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________________________
JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LARRY WHITE,

Case No. 15-cv-04488-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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DAVID MCNEIL MORSE, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on January 7, 2016, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Larry White
G37720
P.O. Box 5242
Corcoran, CA 93212

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Dated: January 7, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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