United States District Court, S.D. California
October 12, 2005.
CEDRIC WALKER, Plaintiff,
CHRIS THOMPSON, et al., Defendants.
The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
(1) DENYING MOTION FOR APPOINTMENT OF COUNSEL; [Doc. No. 17]
(2) GRANTING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS,
ASSESSING NO INITIAL PARTIAL FILING FEE AND GARNISHING $250
BALANCE FROM PRISONER'S TRUST ACCOUNT [Doc. No. 18]
(3) SUA SPONTE DISMISSING FIRST AMENDED COMPLAINT PURSUANT TO 28
U.S.C. § 1915(e)(2) AND § 1915A
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
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
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]
(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
(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.
IT IS SO ORDERED.
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