The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DISMISSING FIRST AMENDED COMPLAINT WITHOUT PREJUDICE FOR FAILING TO STATE A CLAIM AND FOR SEEKING MONETARY DAMAGES AGAINST IMMUNE DEFENDANTS PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)
On May 29, 2008, Jeff S. Gough-Adshima ("Plaintiff"), a former state prisoner, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. This Court granted Plaintiff's Motion to Proceed IFP on July 3, 2008 but simultaneously dismissed his Complaint for failing to state a claim and for seeking monetary damages against immune defendants. See Jul. 3, 2008 Order at 6-7. Plaintiff failed to file a First Amended Complaint within the time set forth in the Court's Order. Instead, Plaintiff filed a "Motion to Vacate Final Judgment and Set Aside Dismissal Order" on March 25, 2009. The Court granted Plaintiff's request, reopened the case and granted Plaintiff an extension of time to file a First Amended Complaint. See March 30, 2009 Order at 2. Plaintiff sought another extension of time which was again granted by the Court. Plaintiff filed his First Amended Complaint ("FAC") on June 29, 2009.
II. SCREENING PURSUANT TO 28U.S.C.§1915(e)(2)
The Prison Litigation Reform Act ("PLRA")'s amendments to 28 U.S.C. § 1915 obligates the Court to review complaints filed by all persons proceeding IFP "as soon as practicable after docketing." See 28 U.S.C. § 1915(e)(2)(B). Under these provisions, the Court must sua sponte dismiss any IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)).
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) mandates that the court reviewing an IFP 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)(3). Id. at 1127 ("[S]section 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.").
Here, once again, even presuming Plaintiff's factual allegations to be true, the Court finds his First Amended Complaint fails to state a claim upon which relief can be granted and seeks monetary damages against defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B); Lopez, 203 F.3d at 1126-27.
A. Eleventh Amendment Immunity
In his First Amended Complaint, Plaintiff names the California Department of Corrections and Rehabilitation ("CDCR") and the Bureau of Prison Hearings ("BPH") as Defendants. (See FAC at 5-6.) The CDCR and the BPH, as agencies of the State of California, are not "persons" subject to suit and are instead, entitled to absolute immunity from monetary damages actions under the Eleventh Amendment. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53-54 (1996); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984); see also Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999) (In the absence of a waiver by the state or a valid congressional override, under the Eleventh Amendment, agencies of the state are immune for private damage actions or suits for injunctive relief brought in federal court.) Therefore, Plaintiff's claims against the California Department of Corrections and Rehabilitation and the Bureau of Prison Hearings are dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
B. Claims against Defendant Rodriquez
Plaintiff cannot state a claim against the attorney appointed to represent him during his parole revocation hearings under 42 U.S.C § 1983. 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)). Attorneys appointed to represent someone during a parole revocation proceeding 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 counsel 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.").
C. Defendants Overton and Archer
Plaintiff also seeks to hold Defendants Overton and Archer liable for violation of his civil rights. However, these Defendants are "private parties" against whom, for reasons not entirely clear, Plaintiff sought a restraining order. These Defendants are not alleged to be "state actors" for purposes of § 1983 liability. Private parties do 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." Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550 (9th Cir. 1974); see also Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). While a plaintiff may seek to hold a private actor liable under section 1983, he must allege facts that show some "state involvement which directly or indirectly promoted the challenged conduct." Ouzts, 505 F.2d at 553; West v. Atkins, 457 U.S. 42, 49, 54 (1988); Johnson v. Knowles, 113 F.3d 1114, 1118-1120 (9th Cir. 1997). In ...