Soto v. People of California

Filing 8

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). The Court D IRECTS the Clerk of the Court to serve a copy of this Order on Warden, GEO Western Region Detention Facility, 200 West C Street, San Diego, California, 92101; DISMISSES this civil action without leave to amend for failure to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3), and DIRECTS the Clerk of Court to enter a final judgment of dismissal and close the file. Signed by Judge Anthony J. Battaglia on 8/2/2017. (All non-registered users served via U.S. Mail Service)Copy of order served on Warden via U.S. Mail(acc).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ISRAEL SOTO,
Reg. No. 46410-298,

ORDER:

Plaintiff,

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vs.

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Case No.: 3:17-cv-0965-AJB-MDD

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2]

PEOPLE OF THE STATE OF
CALIFORNIA,

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Defendant.

AND

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2) DISMISSING CIVIL ACTION
FOR FAILING TO STATE A
CLAIM PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii)
AND § 1915A(b)(1)

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ISRAEL SOTO (“Plaintiff”), a federal prisoner currently incarcerated at GEO

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Western Region Detention Facility (“WRDF”) in San Diego, proceeding pro se, and

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awaiting sentencing after entering a plea agreement in United States v. Soto, S.D. Cal.

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Criminal Case No. 14-cr-00216-MMA, has filed a civil rights Complaint pursuant to 42

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U.S.C. § 1983. (ECF No. 1.)1

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Plaintiff has attached a letter from his appointed counsel in four criminal cases filed against him in the
Southern District of California. See ECF No. 2 at 4. They are United States v. Nguyen, et al., S.D. Cal.
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3:17-cv-0965-AJB-MDD

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Plaintiff has not prepaid the filing fee required by 28 U.S.C. § 1914(a) to

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commence a civil action; instead, he has filed a Motion to Proceed In Forma Pauperis

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(“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

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I.

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Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185

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(9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28

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U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified

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copy of the trust fund account statement (or institutional equivalent) for ... the 6-month

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period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);

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Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account

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statement, the Court assesses an initial payment of 20% of (a) the average monthly

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deposits in the account for the past six months, or (b) the average monthly balance in the

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account for the past six months, whichever is greater, unless the prisoner has no assets. 28

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Crim. Case No. 14cr00216-MMA; United States v. Miranda-Verdugo, et al., S.D. Cal. Crim. Case No.
14cr00219-MMA; United States v. Nguyen, et al., S.D. Cal. Crim. Case No. 14cr00221-MMA; and
United States v. Soto, et al., 14cr00224-MMA. Plaintiff entered a guilty plea in 14cr00216 on November
3, 2016 (ECF No. 571), and awaits a sentencing hearing before Judge Anello currently scheduled for
August 7, 2017 (ECF No. 605). See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (court “‘may
take notice of proceedings in other courts, both within and without the federal judicial system, if those
proceedings have a direct relation to matters at issue.’”) (quoting Bennett v. Medtronic, Inc., 285 F.3d
801, 803 n.2 (9th Cir. 2002)).
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U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the

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prisoner then collects subsequent payments, assessed at 20% of the preceding month’s

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income, in any month in which his account exceeds $10, and forwards those payments to

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the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct.

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at 629.

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In support of his Motion to Proceed IFP, Plaintiff has submitted a copy of his

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“Resident Account Summary” from WRDF, together with a prison certificate completed

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by a correctional counselor attesting to his trust account activity. See ECF No. 3 at 1, 3-4;

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28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. These

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statements show that Plaintiff had an average monthly balance of $1,200, and average

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monthly deposits of $30 to his account over the 6-month period immediately preceding

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the filing of his Complaint, as well as an available balance of $1,322.57 in his account at

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the time he filed it. See ECF No. 3 at 1, 3.

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Based on this financial information, the Court GRANTS Plaintiff’s Motion

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to Proceed IFP (ECF No. 2), and assesses his initial partial filing fee to be $240 pursuant

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to 28 U.S.C. § 1915(b)(1). However, the Court will direct the Warden of the GEO

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WRDF, or his designee, to collect this initial fee only if sufficient funds are available in

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Plaintiff’s account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4)

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(providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action

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or appealing a civil action or criminal judgment for the reason that the prisoner has no

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assets and no means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at

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630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve”

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preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to

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the lack of funds available to him when payment is ordered.”). The remaining balance of

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the $350 total fee owed in this case must be collected and forwarded to the Clerk of the

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Court pursuant to 28 U.S.C. § 1915(b)(1).

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///

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3:17-cv-0965-AJB-MDD

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II.

Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A

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A.

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Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre-

Standard of Review

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answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

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the targets of frivolous or malicious suits need not bear the expense of responding.’”

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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

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Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556

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U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] ... a

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context-specific task that requires the reviewing court to draw on its judicial experience

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and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the

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defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
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3:17-cv-0965-AJB-MDD

Plaintiff’s Allegations

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B.

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Plaintiff claims that the “People of California” violated his “rights for a timely

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appeal” of a judicial termination of his parental rights while he was in custody, and facing

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criminal charges in San Diego Superior Court’s East County before Judge Patricia

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Cookson in Case No. SCE332422 on July 9, 2015. Plaintiff contends he was represented

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by a public defender at the time, and he believed his criminal attorney would file an

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appeal of the custody termination on his behalf. See ECF No. 1 at 1, 3-4. “But to [his]

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disappointment,” at some later time, Plaintiff “received a letter informing [him] that [his]

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time to file [an appeal] has passed.” Id. at 4.

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C.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

42 U.S.C. § 1983

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

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

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

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1035-36 (9th Cir. 2015).

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D.

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Plaintiff’s Complaint requires sua sponte dismissal because he has failed to state a

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claim upon which § 1983 relief can be granted. See Lopez, 203 F.3d at 1126-27; Rhodes,

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621 F.3d at 1004. He names the “People of the State of California” as the sole Defendant.

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See ECF No. 1 at 1. Plaintiff may not sustain an action against the State, however; nor

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may he sue the California “Department of Family Services,” whom he claims took

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custody of his minor children after his parental rights were terminated. Id. at 3.

Discussion

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The Eleventh Amendment erects a general bar against federal lawsuits brought

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against the State itself. Wolfson v. Brammer, 616 F.3d 1045, 1065-66 (9th Cir. 2010)

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(citation and quotation marks omitted). And while “[t]he Eleventh Amendment does not

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bar suits against a state official for prospective relief,” Wolfson, 616 F.3d at 1065-66

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(emphasis added), suits against the state or its agencies are barred absolutely, regardless

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of the form of relief sought, e.g., Pennhurst State School & Hosp. v. Halderman, 465
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U.S. 89, 100 (1984); Buckwalter v. Nevada Bd. of Medical Examiners, 678 F.3d 737, 740

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n.1 (9th Cir. 2012); see also Woods v. Dep’t of Child & Family Servs., No. CV-14-94-

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BMM, 2015 WL 3657609, at *2 (D. Mont. June 12, 2015) (finding the State of

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Montana’s Department of Child and Family Services was entitled to Eleventh

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Amendment immunity and was not a “person” subject to suit under 42 U.S.C. § 1983)

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(citing Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997); Wolfe v.

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Strankman, 392 F.3d 358, 364 (9th Cir. 2004)).

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For these reasons, the Court dismisses Plaintiff’s Complaint for failing to state a
claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
and § 1915A(b)(1).

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E.

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Because Plaintiff is proceeding pro se, the Court would normally grant him leave

Leave to Amend

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to amend. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th

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Cir. 2011) (setting forth standard of review and explaining that leave to amend should be

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given unless amendment would be futile); FED R. CIV. P. 15(a); Lopez, 203 F.3d at 1127

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(leave to amend should be granted unless the district court “determines that the pleading

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could not possibly be cured by the allegation of other facts.”)

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However, the Court finds that with respect to the State, amendment in this case

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would be futile. See Yakama Indian Nation v. State of Wash. Dep’t of Revenue, 176 F.3d

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1241, 1246 (9th Cir. 1999); Reed v. City of San Diego, No. 06-CV-2724-JM (WMC),

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2007 WL 951302, at *2 (S.D. Cal. Mar. 23, 2007) (dismissing with prejudice § 1983

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claim against the State of California and finding amendment futile since “[e]ven if

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Plaintiff were to sue the California Department of Justice, she could not prevail as

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Eleventh Amendment immunity extends to state agencies.”).

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And with respect to Plaintiff’s public defender, whom he does not name as a party,

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but to whom Plaintiff attributes his lost opportunity to appeal, see ECF No. 1 at 3-4,

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amendment is also futile because no “allegation of other facts” could support a § 1983

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claim against him. Lopez, 203 F.3d at 1127. “A public defender does not act under color
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3:17-cv-0965-AJB-MDD

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of state law when performing a lawyer’s traditional functions as counsel to a defendant in

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a criminal proceeding,” and therefore is not subject to suit under § 1983. See Polk Cnty.

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v. Dodson, 454 U.S. 312, 325 (1981); Rivera v. Cnty. of Los Angeles, 745 F.3d 384, 392

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n.3 (9th Cir. 2014).

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III.

Conclusion and Orders

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For the reasons discussed, the Court:

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1)

GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 2).

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2)

ORDERS the Warden of GEO Western Region Detention Facility, or his

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designee, to collect from Plaintiff’s trust account the $240 initial filing fee assessed, if

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those funds are available at the time this Order is executed, and forward whatever balance

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remains of the full $350 owed in monthly payments in an amount equal to twenty percent

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(20%) of the preceding month’s income to the Clerk of the Court each time the amount in

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Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

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MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

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THIS ACTION.

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3)

DIRECTS the Clerk of the Court to serve a copy of this Order on Warden,

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GEO Western Region Detention Facility, 200 West C Street, San Diego, California,

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92101.

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4)

DISMISSES this civil action without leave to amend for failure to state a

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claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)

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and § 1915A(b)(1), CERTIFIES that an IFP appeal would not be taken in good faith

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pursuant to 28 U.S.C. § 1915(a)(3), and DIRECTS the Clerk of Court to enter a final

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judgment of dismissal and close the file.

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IT IS SO ORDERED.
Dated: August 2, 2017

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