The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se who seeks relief pursuant to 42 U.S.C. § 1983. By Order filed on June 13, 2011, plaintiff's complaint was dismissed with leave to amend. On June 23, 2011, plaintiff filed a first amended complaint. Thereafter, plaintiff filed a second amended complaint on July 5, 2011. The court will strike the first amended complaint and proceed to screen the superseding second amended complaint.
As plaintiff was previously informed, the court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(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. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, 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, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).
Plaintiff alleges the Sacramento County Public Defender's Office violated his Fourteenth Amendment right to equal protection, his Fifth Amendment right to due process and is liable for legal malpractice/professional negligence. Second Amended Complaint (SAC), p. 2.
He once again names as defendants the Sacramento County Public Defender, Paulino Duran, and Deputy Public Defender Joseph M. Cress.*fn1 SAC, pp. 1-8, 41-46.*fn2 The gravamen of plaintiff's claim appears to be that the defendants were responsible for an "illegal" consolidation of his case with a duplicate complaint, when, on appeal, his conviction on a plea he had made was reversed by the state appellate court because the trial court lacked jurisdiction to enter the plea in light of the prosecutor's having failed to file an information. See SAC, & Exhibits B & C. Thereafter, plaintiff was found guilty of possession for sale of rock cocaine and, on December 9, 2003, was sentenced to a state prison term of nine years. SAC, Ex. C, p. 42. A coherent, chronological factual predicate for his claim is absent within the body of the second amended complaint. Plaintiff seeks both money damages and unspecified injunctive relief. Id., at 1-2.
Plaintiff was informed in the prior order (docket # 9, p. 4) with respect to defendant public defenders who may have represented plaintiff in a criminal matter, plaintiff has failed to state a claim pursuant to 42 U.S.C. § 1983. In order 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 act complained of was committed; and (2) defendant's conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662 (1986). Public defenders do not act under color of state law for purposes of § 1983. Polk County v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445 (1981).
Plaintiff seeks to counter the principle that public defenders do not act under color of state law under § 1983 by citation to Tower v. Glover, 467 U.S. 914, 104 S.Ct. 28 (1984).
SAC, p. 4. In Tower v. Glover, at 920, 104 S. Ct. at 2824, the Supreme Court noted the holding of Polk County v. Dodson, supra, "that appointed counsel in a state criminal prosecution, though paid and ultimately supervised by the State, does not act 'under color of' state law in the normal course of conducting the defense." However, the high court went on to cite the holding of Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S. Ct. 183, 186 (1980), "that an otherwise private person acts 'under color of' state law when engaged in a conspiracy with state officials to deprive another of federal rights." Tower, at 920, 104 S. Ct. at 2824. Plaintiff's vague allegation that a state court judge he names "either conspired with my public defender or conspired to cover up his actions...." (SAC, p. 6), however, simply does not make a colorable showing of the requisite conspiracy that would serve to transmute the defendants into state actors who may be sued under § 1983. Vague and conclusory allegations are not sufficient to support a claim for civil rights violations based on conspiracy. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). Plaintiff must make some showing of an agreement or a meeting of the minds on the part of the defendant public defenders to violate his constitutional rights. Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989), citing Fonda v. Gray, 707 F.2d 435 (9th Cir. 1983). Conspiracy allegations must be supported by material facts and not be merely conclusory statements. Lockary v. Kayfetz, 587 F. Supp. 631 (N. D. Cal. 1984). Plaintiff's claims under § 1983 must be dismissed.*fn3 Plaintiff also makes state law legal malpractice claims.
The Supreme Court recently held that dismissal of federal claims does not automatically deprive district courts of subject matter jurisdiction over any supplemental claims. Carlsbad Tech., Inc. v. HIF Bio, Inc., ------ U.S. --------, --------, 129 S.Ct. 1862, 1866, 173 L.Ed.2d 843 (2009). Rather, the district court retains discretion whether to exercise supplemental jurisdiction over state law claims even after all federal claims are dismissed. 28 U.S.C. §1367(c)(3)("The district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction."). Where a district court "dismiss[es] every claim over which it had original jurisdiction," it retains "pure[ ] discretion[ ]" in deciding whether to exercise supplemental jurisdiction over the remaining claims. Carlsbad Tech ., 129 S.Ct. at 1866.
Lacey v. Maricopa County, ___ F.3d___, 2011 WL 2276198 *14 (9th Cir. June 9, 2011).
Retaining jurisdiction in this instance over plaintiff's state tort law supplemental claim of legal malpractice/professional negligence does not save the action. It has long been established that state law would apply to such claims in a federal court. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139 (1966)(federal court "bound to apply state law" to pendent state law claims). However, in order to pursue a legal malpractice claim in California, the state Supreme Court has held that the actual innocence of the former client "of the underlying criminal charges is a necessary element of the malpractice cause of action." Coscia v. McKenna & Cuneo, 25 Cal.4th 1194, 1197, 108 Cal. Rptr.2d 471 (Cal. 2001), citing Wiley v. County of San Diego, 19 Cal.4th 532, 79 Cal. Rptr.2d 672 (Cal. 1998).*fn4 Thus, a plaintiff must obtain post-conviction relief in the form of a final disposition of the underlying criminal case-for example, by acquittal after retrial, reversal on appeal ...