FINDINGS AND RECOMMENDATION R E C O M M E N D I N G G R A N T I N G DEFENDANTS MCMANUS'S MOTION TO DISMISS (ECF No. 11)/ OBJECTIONS DUE WITH THIRTY DAYS FINDING AND RECOMMENDATIONS
Plaintiff Reginald D. Miller ("Plaintiff") is a civil detainee proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff originally filed this action in state court. Defendant Giurbino removed it to federal court on July 1, 2011. (ECF No. 2.)
Pending before the Court is Defendants Suzuki and McManus's Motion to Dismiss filed July 11, 2011. (ECF No. 11.) Plaintiff filed his response on July 22, 2011, Defendants replied on July 29, 2011, and Plaintiff filed a surrepy on August 11, 2011.*fn1 (ECF Nos. 22, 24, & 33.)
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint," Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), which must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ," Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Iqbal at 1949 (citing Twombly at 555), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
III. COMPLAINT ALLEGATIONS AS RELATED TO DEFENDANTS SUZUKI AND MCMANUS
In his Complaint, Plaintiff alleges that Defendants Suzuki and McManus committed legal malpractice and violated fiduciary duties to Plaintiff.
Plaintiff alleges that Defendant McManus committed malpractice by repeatedly failing to raise issues concerning Plaintiff's constitutional rights of due process and equal protection during the Sexually Violent Predator Act process.*fn2 Specifically, Plaintiff states that Defendant McManus failed to file an appeal challenging a court's decision not to hear Plaintiff's motion to dismiss for unlawful custody. Plaintiff states that that court did not deny the motion but just declined to hear it, and then instructed McManus to appeal the decision. McManus did not appeal.
Plaintiff alleges that Defendant Suzuki was aware of the incompetence of McManus and did nothing to remove McManus from Plaintiff's case. This failure then violated Suzuki's fiduciary duties to Plaintiff as McManus's supervisory.
Defendants Suzuki, Supervising Deputy Public Defender, and McManus, Deputy Public Defender, argue that Plaintiff cannot state a federal civil rights claim against public defenders because public defenders do not act under color of state law. Defendants reference Polk County v. Dodson, 454 U.S. 312 (1981), which states that public defenders do not act under color of state law for purposes of Section 1983. The Court in Polk County went on to state that public defenders must exercise independent and professional judgment and act with undivided loyalty to their clients, which places them in a dual role as both a state agent and an adversary of the state. Id. at 318. Thus, it is inappropriate to make them subject to suit for federal civil rights violations under Section 1983. Id.
Defendants also argue that they are entitled to dismissal of Plaintiff's California Tort Claims Act ("CTCA") claims because Plaintiff failed to comply with the claim presentation requirements of that Act. Defendants state that, according to Plaintiff, the injury occurred January 14, 2006 when Defendant McManus failed to appeal a court's decision not to hear a motion to dismiss and Defendant Suzuki committed malpractice by failing to appoint competent counsel to replace McManus. Defendant then argues that Plaintiff had, at most, one year to comply with the Act, which he failed to do. Plaintiff filed his claim with the CTCA more than five years later on January 20, 2011. (ECF No. 2, pp. 61 & 63.)
Defendants also argue that Plaintiff's legal malpractice claims should be dismissed, or in the alternative, remanded ...