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Adam Lee Burke v. David Wilson; David A. Lawson Law Office

September 29, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff is proceeding without counsel and is currently incarcerated at the Shasta County Jail.*fn1 Presently before the court is plaintiff's application to proceed in forma pauperis, which was filed on a California Judicial Council form (Dkt. No. 2). For the reasons stated below, the undersigned grants plaintiff's application to proceed in forma pauperis, but dismisses his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Such dismissal is without prejudice, and plaintiff is granted leave to file an amended complaint.

I. Plaintiff's Application to Proceed In Forma Pauperis Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff's application and "Resident Account Summary" from the Shasta County Jail make the showing required by 28 U.S.C. §§ 1915(a)(1)-(2). Accordingly, the undersigned grants plaintiff's request to proceed in forma pauperis.

Ordinarily, the undersigned would at this point order plaintiff to pay the full amount of the $350 filing fee in accordance with 28 U.S.C. § 1915(b). However, because the undersigned is very skeptical that plaintiff will be able to successfully amend his complaint to state a plausible federal claim pursuant to 42 U.S.C. § 1983, the undersigned refrains from ordering payment of the filing fee at this time. Instead, the undersigned will order such payment if plaintiff files an amended complaint.

II. Screening of Plaintiff's Complaint

The determination that a plaintiff may proceed in forma pauperis does not complete the required inquiry. The court is also required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, the action is frivolous or malicious, the complaint fails to state a claim on which relief may be granted, or the action seeks monetary relief against an immune defendant.

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); see also Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous if that claim is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.

In assessing whether a plaintiff's complaint fails to state a claim on which relief may be granted, the court adheres to the "notice pleading" standards. Under the notice pleading standards of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009), cert. denied, 130 S. Ct. 1053 (2010). A complaint should be dismissed for failure to state a claim if, taking all well-pleaded factual allegations as true, it does not contain "'enough facts to state a claim to relief that is plausible on its face.'" See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'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.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez, 203 F.3d at 1130-31.

A. Plaintiff's Complaint

Plaintiff has sued his former criminal defense attorney on the basis of alleged

"legal malpractice and civil rights violations" committed in connection with a criminal proceeding between June 2010 and November 2010, which allegedly "cost [plaintiff] further time spent in incarceration, which in turn has resulted in monetary and emotional damages to [plaintiff] and [plaintiff's] family." (Compl. at 5.) Plaintiff alleges that defendant David Wilson agreed to represent plaintiff in a criminal proceeding, that plaintiff provided Mr. Wilson with exculpatory evidence in advance of a preliminary hearing, and that Mr. Wilson agreed to review that evidence in advance of the hearing. (Id.) Plaintiff alleges that although he paid Mr. Wilson money, Mr. Wilson "failed to confer with [plaintiff] regarding the preparation of [his] defense." (Id.) Plaintiff further alleges that, contrary to Mr. Wilson's obligations to plaintiff as his attorney, "Mr. Wilson waived all of [plaintiff's] pre-trial hearings" and informed plaintiff "right before trial that he had dropped [plaintiff] from his case load" on the apparently mistaken belief that plaintiff was unable to pay Mr. Wilson. (Id. at 5-6.) Plaintiff alleges that Mr. Wilson failed to review any evidence or hire an investigator, and "instead used a police officer to interview just one witness, therefore assigning a hostile party to interest in [plaintiff's] defense." (Id. at 6.) Plaintiff contends that although Mr. Wilson "could have had all charges against [plaintiff] dropped at a preliminary hearing," Mr. Wilson instead waived that hearing to plaintiff's detriment and thus violated plaintiff's constitutional rights. (Id.) Although the complaint is not clear with respect to the relief sought, it appears that plaintiff is seeking monetary damages.*fn2

Although plaintiff's Civil Case Cover Sheet states that plaintiff is seeking relief based on a single claim of professional negligence, plaintiff's complaint reveals two potential claims: (1) a claim for a violation of plaintiff's constitutional rights pursuant to 42 U.S.C. § 1983; and (2) a professional negligence, i.e., legal malpractice, claim under California law. The undersigned dismisses plaintiff's Section 1983 claim for failure to state a claim on which relief may be granted, see 28 U.S.C. § 1915(e)(2)(B(ii), and declines to exercise supplemental jurisdiction over plaintiff's professional negligence claim, 28 U.S.C. § 1367(c).

B. Plaintiff's Section 1983 Claim

Plaintiff clearly alleges violations of his constitutional rights as a result of Mr. Wilson's alleged professional negligence, which implicates 42 U.S.C. § 1983. In relevant part, 42 U.S.C. § 1983 provides: 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 or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the ...

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