Gaines v. Greenberg et al

Filing 14

ORDER REOPENING CASE; ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 11/21/17. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 11/21/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 MARY LEE GAINES, Case No. 17-cv-05720-RS (PR) United States District Court Northern District of California Plaintiff, 12 v. ORDER REOPENING ACTION; 13 14 MARK DAVID GREENBERG, et al., ORDER OF DISMISSAL Defendants. 15 16 17 INTRODUCTION 18 By way of this lawsuit, plaintiff seeks damages from her state appellate attorney, 19 the institution that appointed him (the First District Appellate Project), and its executive 20 director. The suit is barred for the reasons stated below and will be dismissed. 21 22 BACKGROUND This federal civil rights action was dismissed because plaintiff failed to comply with 23 the Court’s order to file a complete application to proceed in forma pauperis (“IFP”), or 24 pay the filing fee of $400.00. Plaintiff since has filed a complete IFP application. The 25 action is REOPENED. The Clerk shall modify the docket to reflect this. The judgment 26 (Dkt. No. 11), and the order of dismissal (Dkt. No. 10) are VACATED. 27 28 DISCUSSION 1 2 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a 3 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 9 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 10 United States District Court Northern District of California 11 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 12 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 13 plausibility when the plaintiff pleads factual content that allows the court to draw the 14 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 15 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 16 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 17 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 18 (9th Cir. 1994). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two 19 essential elements: (1) that a right secured by the Constitution or laws of the United States 20 was violated, and (2) that the alleged violation was committed by a person acting under the 21 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 22 B. 23 Legal Claims Plaintiff, a state prisoner proceeding pro se, alleges that her appellate attorney 24 provided constitutionally inadequate representation and prevented her from accessing the 25 courts when he failed to return court transcripts to her. The appellate project and its 26 executive director are liable for appointing her attorney. In sum, according to plaintiff, 27 defendants are liable under section 1983 for violating her federal constitutional rights and ORDER OF DISMISSAL CASE NO. 17-cv-05720-RS 28 2 1 under state tort law for malpractice and negligence. These allegations fail to state any 2 claim for relief, however. First, state criminal defendants generally cannot sue their attorneys in federal court 3 4 for deficient representation. A state-appointed defense attorney “does not qualify as a state 5 actor when engaged in his general representation of a criminal defendant.” Polk County v. 6 Dodson, 454 U.S. 312, 321 (1981).1 Polk County “noted, without deciding, that a public 7 defender may act under color of state law while performing certain administrative [such as 8 making hiring and firing decisions], and possibly investigative, functions.” Georgia v. 9 McCollum, 505 U.S. 42, 54 (1992) (citing Polk County, 454 U.S. at 325.) Plaintiff’s claims fall squarely within Polk County’s ambit. Under that standard, plaintiff’s 11 United States District Court Northern District of California 10 allegations categorically fail to state a claim for relief under section 1983. Second, this suit is barred by another Supreme Court opinion, Heck v. Humphrey, 12 13 512 U.S. 477 (1994). In order to recover damages for an allegedly unconstitutional 14 conviction or imprisonment, or for other harm caused by actions whose unlawfulness 15 would render a conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that 16 the conviction or sentence has been reversed on direct appeal, expunged by executive 17 order, declared invalid by a state tribunal authorized to make such determination, or called 18 into question by a federal court’s issuance of a writ of habeas corpus. Id. at 486-487. A 19 claim for damages bearing that relationship to a conviction or sentence that has not been so 20 invalidated is not cognizable under section 1983. Id. at 487. Where, as in the instant matter, a state prisoner seeks damages in a section 1983 21 22 suit, the district court must therefore consider whether a judgment in favor of the plaintiff 23 would necessarily imply the invalidity of his conviction or sentence; if it would, the 24 25 26 27 1 For purposes of this order only, the Court will assume without deciding that appellate counsel was “state-appointed.” The outcome would be the same if her attorney were a private actor. Private actors are not liable under section 1983. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). ORDER OF DISMISSAL CASE NO. 17-cv-05720-RS 28 3 1 complaint must be dismissed unless the plaintiff can demonstrate that the conviction or 2 sentence has been invalidated. Id. at 487. 3 The instant complaint is barred by Heck. First, a judgment that defendants are 4 liable for providing constitutionally inadequate representation would necessarily imply the 5 invalidity of plaintiff’s conviction or sentence. Second, nothing in the complaint suggests 6 that her convictions have been invalidated. 7 Plaintiff may refile her claims against the First District Appellate Project and its 8 executive director if she can show that her convictions have been invalidated in one of the 9 ways specified in Heck. She may not refile her claims against her appellate attorney, 10 United States District Court Northern District of California 11 however, because of the Polk County bar. The federal claims are DISMISSED. Because there is now no basis for federal 12 jurisdiction, plaintiff’s state law claims are DISMISSED without prejudice to her pursuing 13 such claims in state court. CONCLUSION 14 15 Plaintiff has failed to state any claim for relief. Accordingly, this action is 16 DISMISSED. The Clerk shall enter judgment in favor of defendants and close the file. 17 18 IT IS SO ORDERED. 21 Dated: November ___, 2017 _________________________ RICHARD SEEBORG United States District Judge 19 20 21 22 23 24 25 26 27 ORDER OF DISMISSAL CASE NO. 17-cv-05720-RS 28 4

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