Arcelus v. Borrego

Filing 7

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint filed by Michael Scott Arcelus. Signed by Judge James Donato on 5/23/16. (lrcS, COURT STAFF) (Filed on 5/23/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL SCOTT ARCELUS,
Plaintiff,

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
ALICIA BORREGO,
Defendant.

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United States District Court
Northern District of California

Case No. 16-cv-01430-JD

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Michael Scott Arcelus, who is being held at Napa State Hospital, has filed a pro se civil

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rights complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis.

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DISCUSSION

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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 this 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).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by
the Constitution or laws of the United States was violated, and (2) the alleged deprivation was
committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

United States District Court
Northern District of California

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LEGAL CLAIMS

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Arcelus seeks monetary damages from his public defender due to her alleged poor

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performance. However, 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 making

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closing arguments. Polk County v. Dodson, 454 U.S. 312, 318-19 (1981). It matters not that the

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public defender failed to exercise independent judgment or that she was employed by a public

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agency; it is the nature and context of the function performed by the public defender that is

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determinative under Polk County. Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir.)

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(en banc), cert. denied, 540 U.S. 814 (2003).

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Arcelus argues that the public defender failed in her duties regarding the annual review of

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Arcelus’ confinement in a mental hospital when the confinement was extended. He argues that the

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public defender failed to file a motion to dismiss and failed to present expert witnesses. Yet, the

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public defender does not act under state law so Arcelus cannot proceed under § 1983. The

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complaint is dismissed with leave to amend and Arcelus will be provided one opportunity to

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address the deficiencies noted above.

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CONCLUSION

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The complaint is DISMISSED with leave to amend. The amended complaint must

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be filed within twenty-eight (28) days of the date this order is filed and must include the caption

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and civil case number used in this order and the words AMENDED COMPLAINT on the first

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page. Because an amended complaint completely replaces the original complaint, plaintiff must

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include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to

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amend within the designated time will result in the dismissal of this action.

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2.

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

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

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United States District Court
Northern District of California

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: May 23, 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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MICHAEL SCOTT ARCELUS,

Case No. 16-cv-01430-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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ALICIA BORREGO,
Defendant.

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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 May 23, 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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Michael Scott Arcelus
NAPA STATE HOSPITAL
2100 NAPA-VALLEJO HIGHWAY
NAPA, CA 94558-6293

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Dated: May 23, 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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