Owens v. Maness

Filing 9

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge James Donato on 9/29/16. (lrcS, COURT STAFF) (Filed on 9/29/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KENNETH OLIVER OWENS,
Plaintiff,

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
JOHN MANESS,
Defendant.

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United States District Court
Northern District of California

Case No. 16-cv-04495-JD

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Plaintiff, a detainee, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He
has been granted leave to proceed in forma pauperis.
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 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).

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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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Plaintiff alleges that his defense attorney in his criminal case is not properly preparing his

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defense. Plaintiff seeks injunctive relief and money damages. Defendants in state court

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prosecutions cannot generally sue their lawyers under Section 1983 for mistakes in their

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representation. A public defender does not act under color of state law, an essential element of an

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action under 42 U.S.C. § 1983, when performing a lawyer’s traditional functions, such as entering

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pleas, making motions, objecting at trial, cross-examining witnesses, and making closing

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arguments. Polk County v. Dodson, 454 U.S. 312, 318–19 (1981). A private attorney

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representing a defendant or appellant also is not a state actor. See Simmons v. Sacramento County

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

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Under principles of comity and federalism, a federal court should not interfere with

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ongoing state criminal proceedings by granting injunctive or declaratory relief absent

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extraordinary circumstances. See Younger v. Harris, 401 U.S. 37, 43-54 (1971). Federal courts

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should not enjoin pending state criminal prosecutions absent a showing of the state’s bad faith or

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harassment, or a showing that the statute challenged is “flagrantly and patently violative of express

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constitutional prohibitions.” Younger, 401 U.S. at 46, 53-54 (cost, anxiety and inconvenience of

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criminal defense not kind of special circumstances or irreparable harm that would justify federal

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court intervention; statute must be unconstitutional in every “clause, sentence and paragraph, and
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in whatever manner” it is applied).

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Plaintiff’s allegations against him fall within the scope of work that Polk County has

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determined is not actionable under Section 1983. For this reason, the claim may not proceed. Nor

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can plaintiff present a state cause of action for malpractice under Section 1983. See Ove v. Gwinn,

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264 F.3d 817, 824 (9th Cir. 2001) (“To the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.”) (internal quotation marks and citation omitted). To

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the extent plaintiff seeks this Court to interfere with the ongoing state prosecution he will be

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provided an opportunity to amend to demonstrate extraordinary circumstances.
CONCLUSION

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United States District Court
Northern District of California

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1.

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 case.

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2.

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

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

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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: September 29, 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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KENNETH OLIVER OWENS,

Case No. 16-cv-04495-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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JOHN MANESS,
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 September 29, 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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Kenneth Oliver Owens ID: Prisoner Id 290606
Maguire Correctional Facility
300 Bradford Street
Redwood City, CA 94063

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Dated: September 29, 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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