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Rhodes v. Baker & Hostetler
February 23, 2009
ANDRE RHODES, PLAINTIFF,
BAKER & HOSTETLER, DEFENDANT.
FINDINGS AND RECOMMENDATIONS
Plaintiff is proceeding in this action pro se and in forma pauperis. Plaintiff has filed an amended complaint.
The federal in forma pauperis statute authorizes federal courts to dismiss a case if the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.
Plaintiff was previously advised that to state a claim under 42 U.S.C. § 1983, he must allege state action on the part of defendants. In the amended complaint, plaintiff again complains about alleged violations of his rights to due process in an underlying civil action. A review of the docket in the underlying action indicates plaintiff sued for alleged discrimation and defendants herein were counsel to the defendant in the underlying action. To state a claim under section 1983, a plaintiff must allege that: (1) defendant was acting under color of state law at the time the complained of act was committed; and (2) defendant's conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. 42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48 (1988). Because defendants were private counsel to a private entity in the underlying action, plaintiff cannot colorably allege they were acting under color of state law in their conduct of the defense of the underlying action. Because it appears that further amendment would be futile, this action should be dismissed.
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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