Davis v. Lefcourt

Filing 10

ORDER DISMISSING CASE. Signed by Judge James Donato on 1/17/17. (lrcS, COURT STAFF) (Filed on 1/17/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN LIMBIRD DAVIS, Plaintiff, 8 9 10 ORDER OF DISMISSAL v. V. ROY LEFCOURT, Defendant. 11 United States District Court Northern District of California Case No. 16-cv-04980-JD 12 13 Plaintiff, a detainee, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The 14 original complaint was dismissed with leave to amend and plaintiff has filed an amended 15 complaint. DISCUSSION 16 17 STANDARD OF REVIEW 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 20 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 21 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 22 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 23 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 24 Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 27 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 28 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 1 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 2 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 3 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 4 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 5 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 6 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 7 should assume their veracity and then determine whether they plausibly give rise to an entitlement 8 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 9 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 11 United States District Court Northern District of California 10 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 12 LEGAL CLAIMS 13 Plaintiff alleges that his defense attorney did not properly handling his criminal case. 14 Plaintiff seeks money damages. Defendants in state court prosecutions cannot generally sue their 15 lawyers under Section 1983 for mistakes in their representation. A public defender does not act 16 under color of state law, an essential element of an action under 42 U.S.C. § 1983, when 17 performing a lawyer’s traditional functions, such as entering pleas, making motions, objecting at 18 trial, cross-examining witnesses, and making closing arguments. Polk County v. Dodson, 454 19 U.S. 312, 318–19 (1981). A private attorney representing a defendant or appellant also is not a 20 state actor. See Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 21 2003). 22 Plaintiff’s allegations against his attorney fall within the scope of work that Polk County 23 has determined is not actionable under Section 1983. For this reason, the claim may not proceed. 24 Nor can plaintiff present a state cause of action for malpractice under Section 1983. See Ove v. 25 Gwinn, 264 F.3d 817, 824 (9th Cir. 2001) (“To the extent that the violation of a state law amounts 26 to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal 27 Constitution, Section 1983 offers no redress.”) (internal quotation marks and citation omitted). To 28 the extent that this may have occurred as part of a federal criminal trial, plaintiff is still not entitled 2 1 to relief. Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982) (attorney not a federal actor for 2 purposes of Bivens action). Because plaintiff has already been provided leave to amend and 3 because providing further amendments would be futile, this case is dismissed without leave to 4 amend. CONCLUSION 5 6 1. The complaint is DISMISSED with prejudice for failure to state a claim. 7 2. The Clerk shall close this case. 8 IT IS SO ORDERED. 9 Dated: January 17, 2017 10 United States District Court Northern District of California 11 JAMES DONATO United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 JOHN LIMBIRD DAVIS, Case No. 16-cv-04980-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 V. ROY LEFCOURT, Defendant. 8 9 10 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 11 12 13 14 15 That on January 17, 2017, 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. 16 17 18 John Limbird Davis #16664426 850 Bryant Street San Francisco, CA 94103 19 20 21 Dated: January 17, 2017 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 27 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 28 4

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