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September 28, 2005.

RODNEY WILLIS, Inmate Booking #4139061, Plaintiff,

The opinion of the court was delivered by: DANA SABRAW, District Judge

Plaintiff, a pretrial detainee currently incarcerated at the Southbay Detention Facility in Chula Vista, California and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. While his Complaint it not entirely clear, it appears as though Plaintiff is claiming that he has received ineffective assistance of counsel from four deputy public defenders while awaiting trial on petty theft charges. I. Failure to Pay Filing Fee or Request IFP Status

All parties instituting any civil action, suit or proceeding in a district court of the United States, other than a writ of habeas corpus, must pay a filing fee of $250. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay only if the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Plaintiff has neither prepaid the $250 filing fee required to commence this action, nor has he submitted a Motion to Proceed IFP. Therefore, this action is subject to immediate dismissal.

  II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)

  A. Standard of Review

  In addition, 28 U.S.C. § 1915A further obligates the Court to review complaints filed by prisoners, like Plaintiff, who are "incarcerated or detained in any facility who is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing" and regardless of IFP status. See 28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).*fn1

  "Under § 1915A, when determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Id. at 447 (citing Cooper v. Pickett, 137 F.3d 616, 623 (9th Cir. 1997)). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Nevertheless, in giving liberal interpretation to a pro se civil rights complaint, the court may not, "supply essential elements of the claim that were not initially pled." Ivey v. Bd of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). B. Application to Plaintiff's Complaint

  Section 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal citations omitted); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). As such, § 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).

  C. State Actor

  Here, Plaintiff fails to allege any act on the part of any of his appointed public defenders which were taken "under color of state law." See 42 U.S.C. § 1983, 28 U.S.C. § 1915(e)(2)(b)(ii). A person "acts under color of state law only when exercising power `possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Polk County v. Dodson, 454 U.S. 312, 317-18 (1981), quoting United States v. Classic, 313 U.S. 299, 326 (1941). Public defenders appointed to represent a criminal defendant during trial do not generally act under color of state law because representing a client "is essentially a private function . . . for which state office and authority are not needed." Polk County, 454 U.S. at 319; United States v. De Gross, 960 F.2d 1433, 1442 n. 12 (9th Cir. 1992). Thus, when publicly appointed defenders are acting in their role as advocates, they are not acting under color of state law for purposes of section 1983. See Georgia v. McCollum, 505 U.S. 42, 53 (1992). Accordingly, Plaintiff's claims regarding his appointed trial counsel's alleged incompetence will be subject to immediate dismissal for failing to state a claim upon which section 1983 relief may be granted. See 28 U.S.C. § 1915(e)(2)(b)(ii); Lopez, 203 F.3d at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."). D. Heck Bar

  Moreover, even if Plaintiff were somehow able to allege facts sufficient to show that any of the deputy public defenders appointed to represent him acted under color of state law, a suit for damages under 42 U.S.C. § 1983 based on the alleged ineffective assistance of trial counsel amounts to attack on the validity of Plaintiff's underlying criminal conviction, and as such, will not be cognizable under 42 U.S.C. § 1983 unless and until Plaintiff is able to show that his potential criminal conviction has already been invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

  In Heck, the Supreme Court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87. A civil rights claim challenging the legality of a conviction or the length of confinement that has not been so invalidated is not cognizable under § 1983. Id. at 487; Edwards v. Balisok, 520 U.S. 641, 643 (1997).

  Heck held that "when a state prisoner seeks damages in a section 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed." Heck, 512 U.S. at 487 (emphasis in original). An action that is barred by Heck should be dismissed for failure to state a claim without prejudice to re-alleging claims for damages after the underlying conviction has been invalidated. Edwards, 520 U.S. at 649; Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995). If Plaintiff were to succeed on his claims for ineffective assistance of trial counsel, he would necessarily call into question the validity of his conviction and continuing incarceration. See Strickland v. Washington, 466 U.S. 668, 688 (1984) (to succeed on ineffective assistance claim petitioner must show that counsel's performance fell below objective standard of reasonableness and that but for counsel's errors the result of the trial would have been different).

  Plaintiff has not alleged that he has had his conviction declared invalid as required by Heck. Therefore, his Complaint fails to state a claim upon which relief may be granted, and this action is subject to ...

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