FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. Defendant Elise Talone has filed a motion to dismiss asserting that plaintiff has no viable grounds for the Fourteenth Amendment violation he alleges because plaintiff's conviction has not been set aside or otherwise invalidated, and that qualified good faith immunity precludes the claim altogether.
I. Plaintiff's Allegations
Plaintiff alleges that while acting under the color of state law, Talone, a certified shorthand reporter employed by the Sacramento Superior Court, denied plaintiff's request for a free copy of his sentencing hearing transcript, thereby denying plaintiff's Fourteenth Amendment due process rights. Plaintiff alleges that his transcript would have demonstrated that he was illegally sentenced and is now serving an illegal sentence.
II. Motion to Dismiss Standards
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981).
The court may properly consider exhibits attached to the motion to dismiss. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The court also may take judicial notice of facts outside of the pleadings, including records and reports of administrative bodies, and matters of public record. Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991). Documents not physically attached to the complaint may be relied on when the documents' authenticity is not contested and the plaintiff's complaint necessarily relies on the documents. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
III. 42 U.S.C. § 1983 and State Actors
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . " 42 U.S.C. §1983. Common law tort immunities and defenses survive section 1983. Imbler v. Pachtman, 424 U.S. 409, 418 (1976).
When an alleged deprivation is caused by the exercise of some right or privilege created by the state, or by a state actor, a person for whom the state can fairly be called responsible, it is considered a state action. West v. Atkins, 487 U.S. 42, 49 (1988). Generally, state employment is sufficient to classify someone as a state actor. Id. at 50. A person can fairly be said to be a state actor when he or she acts with the authority of state law. Id. at 55. "If a defendant's alleged infringement of the plaintiff's constitutional rights satisfies the state-action requirement of the Fourteenth Amendment, the defendant's conduct also constitutes action 'under color of state law' for § 1983'spurposes, since it is 'fairly attributable to the State.'" Id. at 42.
As an employee of the Superior Court, Talone qualifies as a state actor potentially subject to liability under § 1983.
Court reporters enjoy qualified, not absolute immunity. Antoine v. Byers & Anderson, 508 U.S. 429 (1993). In a motion to dismiss, government officials are entitled to immediately raise qualified immunity as a defense to avoid the burdens of discovery and pre-trial procedures. Kwai Fun Wong v. United States, 373 F.3d 952, 957 (9th Cir. 2004). The burden of pleading qualified immunity rests with the defendant. Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The qualified immunity defense provides "ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Government officials performing discretionary functions generally are shielded "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In determining whether a governmental officer is immune from suit based on the doctrine of qualified immunity, the court answers one or two questions. One is, taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? Saucier v. Katz, 533 U.S. 194, 201 (2001). A negative answer ends the analysis, with qualified immunity protecting defendant from liability.
Id. If the court analyzes the first question and determines a constitutional violation occurred, then the court must further inquire "whether the right was clearly established." Id. "If the law did not put the [defendant] on notice that [his] conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Id. at 202. However, ". . . the [plaintiff] need not establish that the [defendant's] behavior had been previously declared unconstitutional." Hydrick v. Hunter, 500 F.3d 978, 989 (9th Cir. 2007) (internal quotations omitted). The reasonableness of a defendant's conduct is judged "against the backdrop of the law at the time of the conduct." Brosseau ...