Davis v. Lefcourt

Filing 14

ORDER by Judge James Donato denying 12 Motion to Amend/Correct ; ; denying 12 Motion for Discovery; denying 13 Motion to Amend/Correct ;. (lrcS, COURT STAFF) (Filed on 2/24/2017)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 JOHN LIMBIRD DAVIS, Plaintiff, 9 10 United States District Court Northern District of California 11 12 Case No. 16-cv-04980-JD v. V. ROY LEFCOURT, Defendant. ORDER DENYING MOTION TO ALTER OR AMEND THE JUDGMENT Re: Dkt. Nos. 12, 13 13 14 Plaintiff, a detainee, filed a pro se civil rights complaint under 42 U.S.C. § 1983 that was 15 dismissed at screening for failure to state a claim. Plaintiff has filed a motion to alter or amend the 16 judgment pursuant to Fed. R. Civ. P. 59(e). 17 18 19 20 A motion to alter or amend judgment under Rule 59 must be made no later than twentyeight days after entry of judgment. See Fed. R. Civ. P. 59(e). A Rule 59(e) motion “‘should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the law.’” 21 22 23 McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (citation omitted) (en banc). Evidence is not newly discovered for purposes of a Rule 59(e) motion if it was available 24 prior to the district court’s ruling. See Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011) 25 (affirming district court’s denial of habeas petitioner’s motion for reconsideration where 26 petitioner’s evidence of exhaustion was not “newly discovered” because petitioner was aware of 27 28 such evidence almost one year prior to the district court’s denial of the petition). 1 Plaintiff sought money damages from his defense attorney’s alleged mishandling of his 2 3 criminal case. Plaintiff was informed that defendants in state court prosecutions cannot generally 4 sue their lawyers under Section 1983 for mistakes in their representation. A public defender does 5 not act under color of state law, an essential element of an action under 42 U.S.C. § 1983, when 6 performing a lawyer’s traditional functions, such as entering pleas, making motions, objecting at 7 trial, cross-examining witnesses, and making closing arguments. Polk County v. Dodson, 454 8 U.S. 312, 318–19 (1981). A private attorney representing a defendant or appellant also is not a 9 state actor. See Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 10 United States District Court Northern District of California 11 2003). Plaintiff’s allegations against his attorney fell within the scope of work that Polk County 12 has determined is not actionable under Section 1983. For this reason, the claim was not permitted 13 to proceed. Nor could plaintiff present a state cause of action for malpractice under Section 1983. 14 See Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001) (“To the extent that the violation of a state 15 law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by 16 the federal Constitution, Section 1983 offers no redress.”) (internal quotation marks and citation 17 omitted). To the extent that this may have occurred as part of a federal criminal trial, plaintiff is 18 still not entitled to relief. Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982) (attorney not a 19 federal actor for purposes of Bivens action). 20 In his motion to alter or amend the judgment, plaintiff contends he should be able to 21 proceed because of the Federal Tort Claims Act. It is not clear if plaintiff was prosecuted in state 22 or federal court, yet an appointed federal defense attorney is not a federal actor. See Cox at 1099. 23 Furthermore, in order to recover damages for an allegedly unconstitutional conviction or 24 imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction 25 or sentence invalid, a plaintiff must prove that the conviction or sentence has been reversed on 26 direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make 27 such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. 28 Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). Plaintiff cannot obtain money damages until 2 1 he can demonstrate the conviction has been reversed. For all these reasons, the motion to alter or 2 amend the judgment (Docket Nos. 12, 13) is DENIED. 3 4 IT IS SO ORDERED. Dated: February 24, 2017 5 6 JAMES DONATO United States District Judge 7 8 9 10 United States District Court Northern District of California 11 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 February 24, 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: February 24, 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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