The opinion of the court was delivered by: Hon. John A. Houston United States District Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE TO 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b) A CLAIM PURSUANT
Plaintiff, a state inmate currently incarcerated at the California Rehabilitation Center located in Norco, California, and proceeding pro se, initiated this civil rights action pursuant to 42 U.S.C. § 1983 on May 24, 2010. Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2].
On June 25, 2010, the Court granted Plaintiff leave to proceed IFP, but dismissed his Complaint sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See June 25, 2010 Order [Doc. No. 7]. Specifically, the Court dismissed: Plaintiff's false arrest claims as barred by the statute of limitations, id. at 3-5; all claims alleged against Defendants Bobo, Kirkness and Rose, who represented Plaintiff at different stages of his criminal trial and appeal, because Plaintiff failed to allege any of them acted under color of state law, id. at 5-6; all ineffective assistance of counsel claims against Bobo, Kirkness and Rose as barred by Heck v. Humphrey, 512 U.S. 477 (1994), id. at 6-7; all claims against Judge Sturgeon based on his absolute judicial immunity, id. at 7; all claims alleged against Defendants Drain and Weiner based on their prosecutorial immunity, id. at 7-8; and finally, all claims against the San Diego County Sheriffs' Department Defendants based on witness immunity. Id. at 8. Because Plaintiff is proceeding without counsel, however, the Court notified him of his pleading deficiencies and granted him an opportunity to amend his Complaint in order to fix them. Id. at 9; see also Lucas v. Dept. of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) ("Unless it is absolutely clear that no amendment can cure the defect ... a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend."). Plaintiff was also cautioned that any claim not re-alleged against any Defendant not re-named in his Amended Complaint would be considered waived. See id. at 9 (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)).
On July 13, 2010, Plaintiff submitted his First Amended Complaint [Doc. No. 11], which names only one Defendant, Ronald Bobo, the Deputy Public Defender appointed to represent him during his murder trial in El Cajon Superior Court in 2003. Plaintiff's Amended Complaint repeats his ineffective assistance of counsel claims against Bobo, and in addition to general and punitive damages, seeks his release, a "name change ... upon release," and the expungement of his criminal conviction. See Amend. Compl. at 11.
II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)&1915A(b)
As the Court noted in its previous Order, the Prison Litigation Reform Act ("PLRA") obligates it to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2), 1915A(b).
Under these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (applying § 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 ((9th Cir. 2000) (applying § 1915A). To establish a prima facie case under 42 U.S.C. § 1983, Plaintiff must demonstrate that (1) the action complained of occurred "under color of law," and (2) the action resulted in a deprivation of his constitutional or federal statutory rights. Azer v. Connell, 306 F.3d 930, 935 (9th Cir. 2002).
First, because Plaintiff names only one Defendant, Ronald Bobo, and does not re-allege any claims against any other previously named Defendant, the Court hereby finds those claims waived and dismisses Defendants McClendon, Haig, Williams, Cong, Scully, Gannett, Chang, Frank, Gardiner, Lunsford, Brugos, Drain, Sturgeon, Rose, Weiner and Kirkness as parties in this matter. See King, 814 F.2d at 567; see also Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (an "amended complaint supersedes the original, the latter being treated thereafter as non-existent.").
Second, while the Court previously found Plaintiff's unlawful arrest and false imprisonment claims time-barred and permitted him leave to allege facts that might show statutory or equitable tolling, see June 25, 2010 Order at 3-5, citing Fink v. Shedler, 192 F.2d 911, 916 (9th Cir. 1999), his Amended Complaint includes no allegations that might render his arrest and imprisonment claims timely. See Wallace v. Kato, 549 U.S. 384, 389 (2007) (false imprisonment claim accrues "when legal process [i]s initiated against [the plaintiff]," thus, the limitations period "beg[ins] to run from that date."); Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993) (noting dismissal is proper when running of statute of limitations is apparent on the face of the complaint). Accordingly, the Court again finds these claims barred by the statute of limitations, and therefore dismisses them for failing to state a claim upon which § 1983 relief can be granted. See 28 U.S.C. §§ 1915(e)(2), 1915A(b).
Third, to the extent Plaintiff still seeks to sue Defendant Bobo, his Public Defender, based on allegations that Bobo's "performance fell grossly below normal stand[a]rds," and that he failed to fully investigate the prosecution's witnesses, "concealed" evidence and "participated in a malicious prosecution" by failing to present an adequate defense, see Amend. Compl. at 2-9, Plaintiff's Amended Complaint suffers from the same deficiencies as his original.
As noted in the Court's June 25, 2010 Order, it is well-settled that an attorney appointed to represent a criminal defendant during trial performs "essentially a private function ... for which state office and authority are not needed." Polk County v. Dodson, 454 U.S. 312, 319 (1981); United States v. De Gross, 960 F.2d 1433, 1442 n.12 (9th Cir. 1992). 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, 454 U.S. at 317-18 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). Thus, when publicly appointed counsel performs as an advocate, i.e., meets with clients, investigates possible defenses, presents evidence at trial and argues to the jury, he does 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.").
Accordingly, Plaintiff's claims against Defendant Bobo must again be dismissed for failing to state a claim upon which section 1983 relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b). Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446.
Finally, even if Plaintiff could somehow show that Bobo acted under color of state law, to the extent he seeks money damages under 42 U.S.C. § 1983 based on counsel's alleged ineffectiveness, Plaintiff's claims would nevertheless undermine the validity of his underlying criminal conviction.*fn1 As such, Plaintiff's ineffective assistance of counsel claims are not cognizable under 42 U.S.C. § 1983 unless and until he can show that conviction has already been invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Ramirez v. Galaza, 334 F.3d 850, 855-56 (9th Cir. 2003) ("Absent such a showing, '[e]ven a prisoner who has fully exhausted available state remedies has no cause of action under § 1983....'") (quoting Heck, 512 U.S. at 489). Heck holds that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, ...