United States District Court, N.D. California
October 24, 2005.
JOHNNY LEE MOORE, Plaintiff,
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.
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