United States District Court, N.D. California
August 12, 2004.
MARK COTTONHAM, Plaintiff,
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).
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
The clerk shall close the file and terminate all pending
motions as moot. No fee is due.
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