Pritchett v. Oronoz et al

Filing 20

ORDER that 14 Report and Recommendation is accepted and modified. The complaint (ECF No. 1-1) is dismissed without prejudice. The clerk of court is directed to close this case. Signed by Judge Andrew P. Gordon on 2/1/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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SHAWN PRITCHETT,

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Plaintiff,
v.
JAMES A. ORONOZ, et al.,
Defendants.

Case No. 2:15-cv-01805-APG-PAL
ORDER ACCEPTING AND
MODIFYING REPORT AND
RECOMMENDATION
(ECF No. 14)

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On November 9, 2016, Magistrate Judge Leen entered a report and recommendation

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recommending that I dismiss plaintiff Shawn Pritchett’s complaint with prejudice because

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Pritchett was asserting claims under 42 U.S.C. § 1983 against his former defense attorney, who is

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not a state actor. ECF No. 14. Magistrate Judge Leen granted an extension of time for Pritchett to

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file objections through December 26, 2016. ECF No. 17. Pritchett objects, arguing that his

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defense attorney conspired with government actors to secure his conviction. ECF No. 18.

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I conducted a de novo review. 28 U.S.C. § 636(b)(1). Judge Leen correctly states that

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defendant Oronoz and his law firm are not state actors when acting as court-appointed defense

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counsel. Miranda v. Clark Cnty., Nev., 319 F.3d 465, 466 (9th Cir. 2003) (citing Polk Cnty. v.

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Dodson, 454 U.S. 312 (1981)). However, there are circumstances when a private actor’s conduct

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may be fairly attributable to the government, such as when “state officials and private parties

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have acted in concert in effecting a particular deprivation of constitutional rights.” Franklin v.

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Fox, 312 F.3d 423, 445 (9th Cir. 2002). “A plaintiff may demonstrate joint action by proving the

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existence of a conspiracy or by showing that the private party was a willful participant in joint

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action with the State or its agents.” Id. (quotation omitted).

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Pritchett has alleged defendant James Oronoz and his law firm conspired with government

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agents, but the complaint’s allegations are too conclusory to state a plausible conspiracy. ECF No.

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1-1. I therefore accept Judge Leen’s recommendation that I dismiss the complaint.

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Ordinarily, I would grant leave for Pritchett to amend to add sufficient factual allegations

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in support of his conspiracy theory. But doing so in this case would run into another bar to his

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federal claims. Under the rule announced in Heck v. Humphrey, if a judgment in the plaintiff’s

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favor in a § 1983 case “would necessarily imply the invalidity of his conviction or sentence . . .

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

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sentence has already been invalidated.” 512 U.S. 477, 487 (1994).

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Pritchett’s allegations that his counsel and government agents conspired to fabricate cell

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phone data and maps necessarily challenge the evidence upon which his criminal conviction was

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based. ECF No. 1-1. In his objection, Pritchett argues that “the fabricated cell site track was the

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majority of the case” because “there wasn’t any other evidence to tie petitioner to any crime.”

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ECF No. 18. Pritchett does not indicate that his criminal conviction has been invalidated.

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According to Pritchett’s complaint, his appeal from his conviction is still pending. ECF No. 1-1 at

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7. His objection does not indicate that any appeal or post-conviction relief has been resolved in

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his favor. ECF No. 18. Accordingly, I dismiss Pritchett’s § 1983 claims without prejudice to

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Pritchett refiling his claims should his criminal conviction later be invalidated.

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I also deny without prejudice any state law claims Pritchett seeks to assert. But without a

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viable § 1983 claim, Pritchett does not allege a basis for this court to exercise subject matter

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jurisdiction over any state law claims. From the face of the complaint, it appears diversity

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jurisdiction is lacking because both Pritchett and Oronoz are Nevada citizens.

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IT IS THEREFORE ORDERED that Judge Leen’s report and recommendation (ECF No.

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14) is accepted and modified. The complaint (ECF No. 1-1) is dismissed without prejudice.

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The clerk of court is directed to close this case.

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DATED this 1st day of February, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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