Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

CAZARES v. HARMON

United States District Court, N.D. California


June 1, 2005.

SIMON V. CAZARES, Plaintiff,
v.
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 pauperis.

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.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.