Simon Kidwell v. McKittrick

Filing 7

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Plaintiff's Motion to Proceed In Forma Pauperis 1 , 6 is DENIED. Plaintiff's Complaint 2 is DISMISSED with prejudice. Signed by Judge Brian Morris on 2/10/2015. Mailed to Simon. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
DEANNA KAY SIMON KIDWELL,
Plaintiff,

CV-14-92-GF-BMM

vs.
PUBLIC DEFENDER COURT
ORDERED MATT MCKITTRICK,

ORDER

Defendant.

Plaintiff Deanna Kay Simon Kidwell (Kidwell) filed a Complaint on
December 8, 2014. She alleges that her public defender violated her civil rights
during his representation of her in criminal proceedings. She asserts claims under
42 U.S.C. § 1983. Kidwell also has filed a motion to proceed in forma pauperis.
Kidwell is proceeding pro se.
United States Magistrate Judge Keith Strong entered Findings and
Recommendations in this matter on December 16, 2014. (Doc. 5). Judge Strong
recommended that the Complaint be dismissed because it failed to state a claim
under § 1983. Judge Strong recommended that the motion to proceed in forma
pauperis be denied because the claims asserted in this action were frivolous. (Doc.
5 at 2-3). Kidwell did not file objections to Judge Strong’s Findings and
Recommendations.

The Court has reviewed Judge Strong’s Findings and Recommendations for
clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981). The Court finds no error in Judge Strong’s Findings
and Recommendations, and adopts them in full. To state a claim under 42 U.S.C. §
1983, a plaintiff must allege two elements: 1) that a right secured by the
Constitution or laws of the United States was violated, and 2) that the alleged
violation was committed by a person acting under color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988). Public defenders do not act “under color of state
law” when performing traditional lawyer duties. Polk County v. Dodson, 454 U.S.
312, 325 (1981). Dismissal of the Complaint is appropriate.
Given that the claims asserted in the Complaint are frivolous, it is proper to
deny the motion to proceed in forma pauperis. See Tripati v. First Nat’l Bank &
Trust, 821 F.2d 1368, 1370 (9th Cir. 1987) (A court “may deny leave to proceed in
forma pauperis . . . if it appears from the face of the proposed complaint that the
action is frivolous or without merit.”).
Accordingly, IT IS HEREBY ORDERED:
1.

Plaintiff’s Motion to Proceed In Forma Pauperis (Docs. 1 and 6) is

DENIED.
2.

Plaintiff’s Complaint (Doc. 2) is DISMISSED with prejudice.
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3.

The Clerk is directed to enter judgment accordingly.

DATED this 10th day of February, 2015.

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