United States District Court, N.D. California
June 1, 2005.
SIMON V. CAZARES, Plaintiff,
JAMIE L. HARMON, et al., Defendant.
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER OF DISMISSAL
Plaintiff, a California prisoner proceeding pro se, filed the
above-titled civil rights action pursuant to 42 U.S.C. § 1983
against the attorneys who represented him in criminal proceedings
in state court. He has applied for leave to proceed in forma
A federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity.
28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable
claims and dismiss any claims that are frivolous, malicious, fail
to state a claim upon which relief may be granted or seek
monetary relief from a defendant who is immune from such relief.
See id. § 1915A(b)(1), (2). Pro se pleadings must, however,
be liberally construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under
§ 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. See West v.
Atkins, 487 U.S. 42, 48 (1988).
Plaintiff claims his attorneys "embezzled" the fee he paid
them, and provided him with deficient representation at his criminal trial and on direct
appeal. Attorneys in private practice are not state actors. See
Simmons v. Sacramento County Superior Court, 318 F.3d 1156,
1161 (9th Cir. 2003); see also Kimes v. Stone, 84 F.3d 1121,
1126 (9th Cir. 1996) (holding private counsel are private
actors). Consequently, services performed by private counsel in
connection with a lawsuit do not constitute action under color of
state law, see Franklin v. Oregon, 662 F.2d 1337, 1345 (9th
Cir. 1981); Briley v. California, 564 F.2d 849, 855-56 (9th
Cir. 1977), and claims for legal malpractice based thereon do not
come within the jurisdiction of the federal courts, see
id.*fn1 Accordingly, plaintiff's claims against his
attorneys are DISMISSED for failure to state a cognizable claim
for relief. In light of this dismissal, plaintiff's
incomplete*fn2 application to proceed in forma pauperis is
DENIED and no fee is due.
The Clerk shall close the file and terminate Docket No. 2.
IT IS SO ORDERED.