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COTTONHAM v. TSAI

United States District Court, N.D. California


August 12, 2004.

MARK COTTONHAM, Plaintiff,
v.
LUELLA TSAI, Deputy Public Defender, Santa Clara County Office of the Public Defender, Defendant(s).

The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER OF DISMISSAL (Docs # 2 & 4)

Plaintiff, a prisoner at the Santa Clara County Jail in San Jose, California, has filed a pro se complaint under 42 USC § 1983 seeking an order compelling the Santa Clara County Office of the Public Defender to "live up to the[ir] part of my plea agreement by putting me back in court to get my case reduced to a misdemeanor." According to plaintiff, a "plea agreement" was "made" in his case that at "the end of my probation violation . . . my case would be reduced to a misdemeanor," but Luella Tsai, "my public defender," has yet "to put me back on court calendar for that to happen."

Plaintiff also seeks to proceed in forma pauperis under 28 USC § 1915. DISCUSSION

  A. Standard of Review

  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 USC § 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 F2d 696, 699 (9th Cir 1990).

  To state a claim under 42 USC § 1983, a plaintiff must allege two essential 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 US 42, 48 (1988).

  B. Analysis

  Plaintiff's action must be dismissed because it is well established that a public defender does not act under color of state law, an essential element of an action under 42 USC § 1983, when performing a lawyer's traditional functions, such as entering pleas, making motions, objecting at trial, cross-examining witnesses, and making closing arguments. Polk County v. Dodson, 454 US 312, 318-19 (1981). It matters not that the public defender failed to exercise independent judgment or that she was employed by a public agency; it is the nature and context of the function performed (or omitted) by the public defender that is determinative under Polk County. Miranda v. Clark County, Nevada, 319 F3d 465, 468 (9th Cir 2003) (en banc).

  In addition, a claim of breach of contract, essentially what plaintiff alleges here, is not cognizable under § 1983 as an independent civil rights claim for violation of a federal right. Plaintiff's remedy lies in the state courts. CONCLUSION

  For the foregoing reasons, plaintiff's request to proceed in forma pauperis (docs # 2 &4) is DENIED and the complaint is DISMISSED.

  The clerk shall close the file and terminate all pending motions as moot. No fee is due.

  SO ORDERED.

20040812

© 1992-2004 VersusLaw Inc.



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