Horob v. Wright
Filing
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ORDER ADOPTING 2 FINDINGS AND RECOMMENDATIONS. Horob's Complaint is DISMISSED. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal of this decision would not be taken in good faith. Signed by Judge Richard F. Cebull on 10/25/2012. Mailed to Horob. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FILED
FOR THE DISTRICT OF MONTANA
OCT 25 2012
BILLINGS DIVISION
Case No. CV-12-128-BLG-RFC
TODD KENNETH HOROB,
Plaintiff,
ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE
vs.
ATTORNEY CHAD WRIGHT,
Defendant.
United States Magistrate Judge Carolyn Ostby has entered Findings and
Recommendation (doc. 2) with respect to Horob's Complaint. Doc. 1. Judge
Ostby recommends the Complaint be dismissed.
Upon service of a magistrate judge's findings and recommendation, a party
has 14 days to file written objections. 28 U.S.C. § 636(b)(I). Horob has filed
timely objections. Docs. 4, 5, 6, 7, 8. Accordingly, the Court must make a de
novo determination of those portions of the Findings and Recommendations to
which objection is made. 28 U.S.C. § 636(b)(1). For the following reasons,
Horob's objections are overruled.
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Horob alleges the attorney appointed to represent him in the direct appeal of
his criminal conviction, Chad Wright, will not produce to him the Court
transcripts of the Grand Jury that indicted Horob. He alleges Mr. Wright is
conspiring to defraud Horob of discovery. He contends Wright has denied him
due process.
A complaint is frivolous if it "lacks an arguable basis either in law or in
fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a
claim upon which relief may be granted if a plaintiff fails to allege the "grounds"
of his "entitlement to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)
(quotation omitted). Rule 8(a)(2) requires a complaint to "contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face." Ashcroft v.Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks
omitted).
Although the statute requires a dismissal for the reasons stated, it does not
deprive the district court of its discretion to grant or deny leave to amend. Lopez
v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). The court can decline to grant
leave to amend if "it determines that the pleading could not possibly be cured by
the allegation of other facts." Lopez, 203 F.3d. at 1127 (quoting Doe v. United
States, 58 F.3d 494,497 (9th Cir. 1995)). Leave to amend is liberally granted to
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pro se litigants unless it is "absolutely clear that the deficiencies of the complaint
could not be cured by amendment." Noil v. Carlson, 809 F .2d 1446, 1448 (9th
Cir. 1987) (citing Broughton v. Cutter Labs., 622 F.2d 458,460 (9th Cir. 1980)).
Horob has, in prior actions, repeatedly raised the same allegations as are
raised in this action. All such prior actions have been dismissed. As with his prior
cases, Horob's Complaint herein is frivolous.
Mr. Wright is Horob's appointed counsel on his federal criminal appeal.
Federal public defenders are not acting under color of federal law for purposes of
an action filed pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971). Cox v. Heilerstein, 685 F.2d 1098, 1099 (9th Cir. 1982) citing Polk
County v. Dodson, 454 U.S. 312 (1981). In Cox, the court specifically held that "a
public defender does not act under of color of law" and thus there was no federal
jurisdiction over Cox's civil rights complaint. Similarly, Horob cannot establish a
jurisdictional basis for a federal action against Mr. Wright.
Horob cites to Polk County v. Dodson, 454 U.S. 312 (1981), in support of
his contention that Mr. Wright has no immunity. However, the United States
Supreme Court held in Polk County that a state public defender was not acting
under color of state law and could not be sued under 42 U.S.C. § 1983. Id. at
324-25 ("[A] public defender does not act under color of state law when
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performing a lawyer's traditional functions as counsel to a defendant in a criminal
proceeding.") Like the Cox case, the Supreme Court in Polk County held there was
no jurisdictional basis for an action brought under 42 U.S.C. § 1983 against Polk
County. The Polk case does not support Horob's claims but rather is the exact
reason this case must be dismissed.
After a de novo review, the Court determines the Findings and
Recommendation of Magistrate Judge Ostby are well grounded in law and fact and
HEREBY ORDERS they be adopted in their entirety. Horob has failed to name a
defendant acting under federal law, a jurisdictional defect which cannot be cured
by amendment.
Furthermore, the Prison Litigation Reform Act prohibits prisoners from
bringing in forma pauperis civil actions if the prisoner has brought three or more
actions in federal court that were dismissed for frivolousness, maliciousness, or for
failure to state a claim. 28 U.S.C. § 1915(g). This dismissal will be designated as
a "strike" under this provision because Horob's case is malicious. "A case is
malicious if it was filed with the 'intention or desire to harm another. '" Andrews
v. King, 398 F.3d 1113 (9th Cir. 2005)(citing Webster's Third New International
Dictionary 1367 (1993)). Duplicative or repetitious litigation of the same causes
of action brought by prisoners proceeding in forma pauperis is subject to dismissal
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under 28 U.S.C. § 1915(e) as abusive. See Bailey v. Johnson, 846 F.2d 1019,
1021 (5th Cir. 1988). An in forma pauperis complaint that merely repeats pending
or previously litigated claims may be considered abusive and dismissed under the
authority of§ 1915. See Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th Cir.
1995). It is malicious for a litigant to file a lawsuit that duplicates allegations of
another federal lawsuit. Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993).
Horob's claims are duplicative and have previously been dismissed. See Civil
Action Nos. 12-CV-00112-BLG-RFC and 12-CV-00116-BLG-RFC. As such, this
Complaint constitutes a malicious filing and a strike must be imposed.
Additionally, the finding that Horob's claims are frivolous is so clear no
reasonable person could suppose an appeal would have merit. Therefore, the
Court does hereby certify that any appeal of this matter would not be taken in good
faith.
Accordingly, IT IS HEREBY ORDERED as follows:
1.
Horob's Complaint is DISMISSED.
2.
The Clerk of Court is directed to enter judgment pursuant to
Fed.R.Civ.P. 58 and close this case.
3.
The Clerk of Court is directed to have the docket reflect that this
dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g).
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4.
The Clerk of Court is directed to have the docket reflect that the
Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of
Appellate Procedure that any appeal of this decision would not be
taken in good faith. No reasonable person could suppose that an
appeal
DATED this
would~rit.
$
day of October, 2012.
RICHARD F. CEBULL
UNITED STATES DISTRICT JUDGE
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