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United States District Court, S.D. California

October 12, 2005.

CHRIS THOMPSON, et al., Defendants.

The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge


Plaintiff, an inmate currently incarcerated at California State Prison in Los Angeles, California and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 on February 7, 2005. In his original Complaint, Plaintiff alleged that Defendant Chris Thompson provided false testimony at Plaintiff's criminal trial in 1996. See Compl. at 3. Plaintiff also alleged that the Suarez Corporation has failed to provide Plaintiff with records and documents which would establish the "validity of Plaintiff's claims." Id. Claiming violations of his constitutional rights, Plaintiff now sought declaratory and injunctive relief as well as monetary damages. Id. at 7. Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a), but instead submitted a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a), as well as a Motion for "Discretionary Appointment of Counsel."

On March 16, 2005, this Court denied Plaintiff's Motion for Appointment of Counsel, as well as Plaintiff's Motion to Proceed IFP because Plaintiff failed to submit a certified copy of his trust account statement as required by 28 U.S.C. § 1915(a)(2). See March 16, 2005 Order at 2. The Court also sua sponte dismissed Plaintiff's Complaint for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. § 1915A(b)(1). Id. at 7-8. However, the Court granted Plaintiff leave to file a First Amended Complaint to correct all the deficiencies of pleading identified in the Court's Order. Id. at 7-8. After granting Plaintiff several extensions of time to file his amended pleading, Plaintiff filed his First Amended Complaint ("FAC") on August 4, 2005 [Doc. No. 16]. Along with his First Amended Complaint, Plaintiff filed a second Motion for Appointment of Counsel [Doc. No. 17], along with a Motion to Proceed IFP [Doc. No. 18].

  I. Motion to Proceed IFP [Doc. No. 18]

  Effective February 7, 2005, all parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $250. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a prisoner seeking leave to proceed IFP must submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005) ("[P]risoners [seeking leave to proceed IFP per § 1915(a)(1) & (2)] must demonstrate that they are not able to pay the filing fee with an affidavit and submission of their prison trust account records."). From the certified trust account statement, the Court must assess an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

  The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C. § 1915(a)(1), and that he has attached a certified copy of his trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 398 F.3d at 1119. Plaintiff's trust account statement shows that he has no available funds from which to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay . . . due to the lack of funds available to him when payment is ordered."). In fact, Plaintiff has a negative balance of $6.00 in his trust account due to legal copy and postage charges. Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP [Doc. No. 18] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $250 balance of the filing fees mandated shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

  II. Motion for Appointment of Counsel [Doc. No. 17]

  Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action. The Constitution provides no right to appointment of counsel in a civil case, however, unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. This discretion may be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the `likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

  Here, it appears that Plaintiff is able to adequately articulate the factual basis of his First Amended Complaint, but for the reasons outlined below, has not demonstrated a likelihood of success on the merits. Id. Under these circumstances, the Court denies Plaintiff's request without prejudice, as neither the interests of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

  III. Screening of Amended Complaint per 28 U.S.C. §§ 1915(e)(2) and 1915A(b)

  A. Standard of Review

  The Court has carefully reviewed Plaintiff's Amended Complaint as mandated by 28 U.S.C. §§ 1915(e)(2) and 1915A and, for the reasons set forth below, finds that it is also subject to sua sponte dismissal because: (1) it fails to cure the deficiencies of pleading identified in the Court's March 16, 2005 Order; and (2) it still fails to state a claim upon which § 1983 relief may be granted. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

  The Prison Litigation Reform Act ("PLRA") requires courts to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] 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." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte dismiss prisoner and all other IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek monetary relief from a defendant immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez, 203 F.3d at 1126-27 (§ 1915(e)(2)); Resnick, 213 F.3d at 446 (§ 1915A).

  Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. However, 28 U.S.C. §§ 1915(e)(2) and 1915A(b) now mandate that the court reviewing an IFP or prisoner's suit make and rule on its own motion to dismiss before directing that the Complaint be served by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. 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."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A).

  "[W]hen 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." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). However, while liberal construction is "particularly important in civil rights cases," Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the court may nevertheless not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Moreover, the court is not required to grant leave to amend if it determines that the pleading "could not possibly be cured by the allegation of other facts," Lopez, 203 F.3d at 1130-31 (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990)), or if amendment would prove futile. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (where amendment of litigant's complaint would be futile, denial of leave to amend is appropriate).

  First, a majority of Plaintiff's claims in his First Amended Complaint involve allegations that his appointed counsel at his criminal trial in 1996, Defendant Scott Russell Barnett, violated his constitutional rights by "willfully failing to carry out his duty to provide effective assistance of counsel." See FAC at 16. A person "acts under color of state law [for purposes of § 1983] 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 performing as advocates, i.e., meeting with clients, investigating possible defenses, presenting evidence at trial and arguing to the jury, they do not act under color of state law for section 1983 purposes. See Georgia v. McCollum, 505 U.S. 42, 53 (1992); Polk County, 454 U.S. at 320-25; Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir. 2003) (en banc) (finding that public defender was not a state actor subject to suit under § 1983 because, so long as he performs a traditional role of an attorney for a client, "his function," no matter how ineffective, is "to represent his client, not the interests of the state or county.").

  Accordingly, Plaintiff's ineffective assistance of counsel claims against Barnett must be dismissed for failing to state a claim upon which section 1983 relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); § 1915A(b); Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446. Further, to the extent Plaintiff seeks damages under 42 U.S.C. § 1983 based on the alleged ineffectiveness assistance of his trial counsel, his claim amounts to an attack on the validity of his underlying criminal conviction, and as such, is not cognizable under 42 U.S.C. § 1983 unless and until he can show that conviction has already been invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Ramirez v. Galaza, 334 F.3d 850, 855-56 (9th Cir. 2003) ("Absent such a showing, `[e]ven a prisoner who has fully exhausted available state remedies has no cause of action under § 1983. . . .'") (quoting Heck, 512 U.S. at 489), cert. denied, 124 S. Ct. 2388 (2004).

  Heck holds 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." Heck, 512 U.S. at 486-87. A claim challenging the legality of a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at 487; Edwards v. Balisok, 520 U.S. 641, 643 (1997).

  In Heck, the Supreme Court 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 added). An action that is barred by Heck should be dismissed for failure to state a claim without prejudice to Plaintiff's right to file a new action if he succeeds in invalidating his conviction. Edwards, 520 U.S. at 649; Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995). Here, Plaintiff's ineffective assistance of counsel claims against Barnett "necessarily imply the invalidity" of his conviction and continuing incarceration. Heck, 512 U.S. at 487. Were Plaintiff to succeed in showing that Barnett rendered ineffective assistance of counsel, an award of damages would "necessarily imply the invalidity" of his conviction. Id.; see also 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); Lozada v. Deeds, 964 F.2d 956, 958-59 (9th Cir. 1992) (remedy for ineffective assistance of counsel is a conditional writ granting petitioner's release unless state retries him or allows him to pursue an appeal with the assistance of counsel within a reasonable time). Thus, because Plaintiff seeks damages for an allegedly unconstitutional conviction in a criminal case, and because he has not alleged that his conviction has already been invalidated, a section 1983 claim for damages has not yet accrued. See Heck, 512 U.S. at 489-90.

  Even if Plaintiff could somehow show that Barnett, his appointed counsel, acted under color of law when representing him during his trial, the conviction which forms the basis of his § 1983 claim for damages has yet to be invalidated. Heck, 512 U.S. at 486-87. Therefore, this action must be sua sponte dismissed for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(b)(2) and § 1915A(b). Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (noting that an action barred by Heck should be dismissed for failure to state a claim without prejudice).*fn1

  Plaintiff also claims that Defendant Chris Thompson, a witness and alleged victim at his criminal trial, committed perjury when she identified Plaintiff as the person who burglarized her house. See FAC at 3,7. Plaintiff also seeks to hold the Suarez Corporation, the parent corporation of Defendant Lindenwold Fine Jewelers, because they sold the cubic zirconia to Defendant Thompson that was part of the property Plaintiff was convicted of stealing from Thompson. However, the Court already informed Plaintiff that a private party does not generally act under color of state law; thus, "purely private conduct, no matter how wrongful, is not within the protective orbit of section 1983." See March 16, 2005 Order (citing Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550 (9th Cir. 1974)). Here, Plaintiff alleges no facts from which the Court could find that any of these parties acted on behalf of, or in any way attributable to, the state. Thus, Plaintiff's claims against Defendants Thompson, Suarez Corporation and Lindenwold Fine Jewelers fail to satisfy the first prong of a § 1983 claim and thus are dismissed for failing to state a claim upon which § 1983 relief can be granted.

  D. Statute of Limitations

  The Court also finds that Plaintiff's First Amended Complaint is, once again, subject to sua sponte dismissal because it appears from the face of Plaintiff's pleading that his claims are barred by the statute of limitations. While Congress has provided no federal statute of limitations governing section 1983 claims, the Supreme Court has held that federal courts should use the forum state's single most appropriate statute of limitations applicable to personal injury actions for all section 1983 claims. See Wilson v. Garcia, 471 U.S. 261, 269 (1985). Relying on Wilson, the Ninth Circuit has found that the one-year statute of limitations of California Code of Civil Procedure § 340(3)*fn2 is the most appropriate. Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir. 1987); Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per curiam). Federal law, however, determines when a section 1983 cause of action accrues. Hardin v. Staub, 490 U.S. 536, 543-44 (1989). Under federal law, a claim generally accrues when the plaintiff "knows or has reason to know of the injury which is the basis of the action." Elliot v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1996) (internal citations omitted). The majority of Plaintiff's claim arise from the time he was arrested and convicted of a criminal offense in 1996. Accordingly, Plaintiff's claims arose in 1996. However, Plaintiff filed this action on February 7, 2005, almost nine years after he claims that Defendants violated his constitutional rights.

  Plaintiff does not allege any facts to suggest how or why California's one-year statute of limitations might be tolled for a period of time which would make his claims timely. See, e.g., CAL. CODE CIV.P. § 352.1 (tolling statute of limitations "for a maximum of 2 years" during a prisoner's incarceration); Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999) (finding that CAL. CODE CIV.P. § 352.1 tolls a California prisoner's personal injury claims accruing before January 1, 1995 for two years, or until January 1, 1995, whichever occurs later, unless application of the statute would result in a "manifest injustice."). Pursuant to Fink, Plaintiff's claims against Defendants, accruing in 1996, would be tolled for two years. California's one-year statute of limitations would then begin to run — requiring Plaintiff to file this action against these Defendants no later than May 15, 1999. However, Plaintiff's Complaint was not filed until February 7, 2005, nearly six years later.

  The Court previously dismissed Plaintiff's original Complaint on the grounds that Plaintiff's claims were barred by the applicable statute of limitations. However, the Court informed Plaintiff that he may be entitled to equitable tolling and granted him leave to amend his Complaint to allege facts sufficient to allow the Court to apply equitable tolling.

  Generally, federal courts also apply the forum state's law regarding equitable tolling. Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d 372, 374 (9th Cir. 1988). Under California law, however, a plaintiff must meet three conditions to equitably toll a statute of limitations: (1) he must have diligently pursued his claim; (2) his situation must be the product of forces beyond his control; and (3) the defendants must not be prejudiced by the application of equitable tolling. See Hull v. Central Pathology Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1335 (Cal.Ct.App. 1994); Addison v. State of California, 21 Cal.3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916. Here, however, Plaintiff has failed to plead any facts which, if proved, would support the equitable tolling of his claims. See Cervantes v. City of San Diego, 5 F.3d 1273, 1277 (9th Cir. 1993). The only portion of Plaintiff's First Amended Complaint that addresses the issue of equitable tolling is found in his claims that his appointed trial counsel was ineffective. See FAC at 14. However, it is clear that a majority of Plaintiff's claims arise against the remaining defendants arose in 1996 and Plaintiff has completely failed to allege facts sufficient to apply equitable tolling to those claims.

  Thus, the Court finds that Plaintiff's Amended Complaint must be DISMISSED for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. Because it does not now appear "at all possible that the plaintiff can correct the defect(s)" of his pleading, further leave to amend is DENIED as futile. See Lopez, 203 F.3d at 1130-31; Cahill, 80 F.3d at 339.

  IV. Conclusion and Order

  For all the reasons set forth above, IT IS ORDERED that:

  (1) Plaintiff's Motion for Appointment of Counsel [Doc. No. 17] is DENIED

  (2) Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 18] is GRANTED.

  (3) The Director of California Department of Corrections, or her designee, is ordered to collect from Plaintiff's prison trust account the $250 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to twenty percent (20%) of the preceding month's income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.

  (4) The Clerk of the Court is directed to serve a copy of this order on Jeanne Woodford, Director, California Department of Corrections, P.O. Box 942883, Sacramento, California 94283-0001. IT IS FURTHER ORDERED that:

  (5) Plaintiff's Amended Complaint [Doc. No. 16] is DISMISSED for failing to state a claim and without further leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. Plaintiff is further notified that this dismissal may later be counted as a "strike" against him pursuant to 28 U.S.C. § 1915(g).*fn3

  The Clerk shall close the file.



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