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MOORE v. CONTRA COSTA COUNTY PUBLIC DEFENDER

United States District Court, N.D. California


October 24, 2005.

JOHNNY LEE MOORE, Plaintiff,
v.
CONTRA COSTA COUNTY PUBLIC DEFENDER, et al., Defendants.

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 appointed to represent him in criminal proceedings in state court. He has paid the filing fee.

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). Here, plaintiff claims that the Contra Costa County Public Defender, and the deputies he assigned to represent petitioner, provided him with deficient representation in connection with an ongoing criminal prosecution in state court. In particular, plaintiff claims that defendants have provided deficient representation by failing to meet with him on a sufficiently frequent basis, failing to file meritorious motions and to subpoena helpful witnesses, and failing to adequately challenge the prosecution's evidence and witnesses. A public defender does not act under color of state law when performing a lawyer's traditional functions in representing a defendant in a state court criminal prosecution; such traditional functions include entering pleas, making motions, objecting at trial, cross-examining witnesses, and making closing arguments. Polk County v. Dodson, 454 U.S. 312, 318-19 (1981).*fn1 The action or lack of action alleged herein does not constitute conduct taken under color of state law. See id.

  Accordingly, plaintiff's claims against his attorneys are DISMISSED for failure to state a cognizable claim for relief.

  The Clerk shall close the file.

  IT IS SO ORDERED.

20051024

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