The opinion of the court was delivered by: Charles R. Breyer, United States District Judge
Plaintiff, a pretrial detainee at the Alameda County Jail, Santa Rita Facility, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 alleging that his court-appointed attorney, Gary L. Sherrer, did something "very unethical" and "criminal minded" when he recently suggested to plaintiff that plaintiff make a witness disappear. Plaintiff would like for Mr. Sherrer "to be reported to an official and the State Bar as well as to Alameda County Superior Courts and Judges."
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't 901 F.2d 696, 699 (9th Cir. 1990).
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 the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
A public defender does not act under color of state law, an essential element of an action under 42 U.S.C. § 1983, once he assumes his role as counsel and begins to perform a lawyer's traditional functions. Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003) (en banc) (citing Polk County v. Dodson, 454 U.S. 312, 325 (1981)). The same rationale applies to a court-appointed attorney. It matters not that Mr. Sherrer was appointed by the court. "Except for the source of payment, . . . the duties and obligations are the same whether [Mr. Sherrer was] privately retained, appointed, or served in a legal aid or defender program." Polk County, 454 U S. at 318. In that traditional role, Mr. Sherrer was acting under the ethical standards of a lawyer-client relationship when he advised plaintiff to make a witness disappear. He was not acting under color of state law. See Miranda, 319 F.3d at 468.
Plaintiff does not state a claim under § 1983 because, "as a matter of law, [Mr. Sherrer] was not a state actor." Id. This conclusion in no way condones the Mr. Sherrer's alleged conduct. It simply means that plaintiff may not proceed in federal court under 42 U.S.C. § 1983.
For the foregoing reasons, the complaint is DISMISSED under the authority of 28 U.S.C. § 1915A(b).
The Clerk shall close the file and terminate all pending motions as moot.