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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARY LEE GAINES,

Case No. 17-cv-05720-RS (PR)

United States District Court
Northern District of California

Plaintiff,
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v.

ORDER REOPENING ACTION;

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MARK DAVID GREENBERG, et al.,

ORDER OF DISMISSAL

Defendants.
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INTRODUCTION

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By way of this lawsuit, plaintiff seeks damages from her state appellate attorney,

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the institution that appointed him (the First District Appellate Project), and its executive

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director. The suit is barred for the reasons stated below and will be dismissed.

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BACKGROUND
This federal civil rights action was dismissed because plaintiff failed to comply with

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the Court’s order to file a complete application to proceed in forma pauperis (“IFP”), or

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pay the filing fee of $400.00. Plaintiff since has filed a complete IFP application. The

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action is REOPENED. The Clerk shall modify the docket to reflect this. The judgment

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(Dkt. No. 11), and the order of dismissal (Dkt. No. 10) are VACATED.

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DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

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cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

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upon which relief may be granted or seek monetary relief from a defendant who is immune

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from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed.

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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

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United States District Court
Northern District of California

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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal

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conclusions cast in the form of factual allegations if those conclusions cannot reasonably

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be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55

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(9th Cir. 1994). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

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essential elements: (1) that a right secured by the Constitution or laws of the United States

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was violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff, a state prisoner proceeding pro se, alleges that her appellate attorney

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provided constitutionally inadequate representation and prevented her from accessing the

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courts when he failed to return court transcripts to her. The appellate project and its

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executive director are liable for appointing her attorney. In sum, according to plaintiff,

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defendants are liable under section 1983 for violating her federal constitutional rights and
ORDER OF DISMISSAL
CASE NO. 17-cv-05720-RS

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under state tort law for malpractice and negligence. These allegations fail to state any

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claim for relief, however.
First, state criminal defendants generally cannot sue their attorneys in federal court

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for deficient representation. A state-appointed defense attorney “does not qualify as a state

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actor when engaged in his general representation of a criminal defendant.” Polk County v.

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Dodson, 454 U.S. 312, 321 (1981).1 Polk County “noted, without deciding, that a public

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defender may act under color of state law while performing certain administrative [such as

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making hiring and firing decisions], and possibly investigative, functions.” Georgia v.

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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

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United States District Court
Northern District of California

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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,

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512 U.S. 477 (1994). In order to recover damages for an allegedly unconstitutional

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conviction or imprisonment, or for other harm caused by actions whose unlawfulness

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would render a conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that

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the conviction or sentence has been reversed on direct appeal, expunged by executive

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order, declared invalid by a state tribunal authorized to make such determination, or called

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into question by a federal court’s issuance of a writ of habeas corpus. Id. at 486-487. A

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claim for damages bearing that relationship to a conviction or sentence that has not been so

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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

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suit, the district court must therefore consider whether a judgment in favor of the plaintiff

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would necessarily imply the invalidity of his conviction or sentence; if it would, the

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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

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complaint must be dismissed unless the plaintiff can demonstrate that the conviction or

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sentence has been invalidated. Id. at 487.

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The instant complaint is barred by Heck. First, a judgment that defendants are

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liable for providing constitutionally inadequate representation would necessarily imply the

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invalidity of plaintiff’s conviction or sentence. Second, nothing in the complaint suggests

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that her convictions have been invalidated.

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Plaintiff may refile her claims against the First District Appellate Project and its

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executive director if she can show that her convictions have been invalidated in one of the

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ways specified in Heck. She may not refile her claims against her appellate attorney,

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United States District Court
Northern District of California

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however, because of the Polk County bar.
The federal claims are DISMISSED. Because there is now no basis for federal

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jurisdiction, plaintiff’s state law claims are DISMISSED without prejudice to her pursuing

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such claims in state court.
CONCLUSION

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Plaintiff has failed to state any claim for relief. Accordingly, this action is

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DISMISSED. The Clerk shall enter judgment in favor of defendants and close the file.

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IT IS SO ORDERED.
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Dated: November ___, 2017

_________________________
RICHARD SEEBORG
United States District Judge

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ORDER OF DISMISSAL
CASE NO. 17-cv-05720-RS

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