Waff v. Esmeralda Co, Nevada et al

Filing 59

ORDER. Plaintiff should not be permitted to proceed in forma pauperis where, as here, the appeal is frivolous and not taken in good faith. Plaintiff's forma pauperis status is revoked. Signed by Judge Kent J. Dawson on 6/20/11. (Copies have been distributed pursuant to the NEF - MMM) Modified to reflect this was sent to the USCA on 6/22/2011 (SRK).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STAN R. WAFF,

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Plaintiff,

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v.

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Case No. 2:10-CV-00088-KJD-RJJ

ESMERELDA COUNTY, NEVADA, et
al.,

ORDER

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Defendants.
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This matter is before the Court on referral from the United States Court of Appeals for the
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Ninth Circuit for the limited purpose of determining whether in forma pauperis status should
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continue for this appeal or whether the appeal is frivolous or taken in bad faith.
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This case initially came to the Court on Plaintiff’s Civil Rights Complaint pursuant to 42
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U.S.C. § 1983. Construing Plaintiff’s pro se pleadings liberally, it appears that his complaint alleged
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that he was denied effective assistance of counsel. A public defender does not act under color of
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state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal
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proceeding. See Polk County v. Dodson, 102 S. Ct. 445, 453 (1981). Further, Plaintiff’s amended
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complaint contained no factual allegations against several defendants, including Nye County.
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Plaintiff’s allegations, even construed as liberally as possible, failed to state a claim under § 1983.
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Accordingly, Plaintiff should not be permitted to proceed in forma pauperis where, as here,
the appeal is frivolous and not taken in good faith. 28 U.S.C. §1915(a)(3).

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Accordingly, Plaintiff’s forma pauperis status is revoked.

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DATED this 20th day of June 2011.

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_____________________________
Kent J. Dawson
United States District Judge

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