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Tyrell T. Brown v. Paulino G. Duran

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 24, 2011

TYRELL T. BROWN, PLAINTIFF,
v.
PAULINO G. DURAN, ET AL., DEFENDANTS.

ORDER

This matter is before the court on the referral of the United States Court of Appeals for the Ninth Circuit for the limited purpose of determining whether in forma pauperis status should continue for plaintiff's appeal. See 28 U.S.C. § 1915(a)(3). For the reasons set forth in the magistrate judge's findings and recommendations, filed September 13, 2011 (Docket No. 16), this court finds plaintiff's appeal to be frivolous. As the magistrate judge observed, in order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege, inter alia, that the defendant was acting under color of state law at the time the act complained of was committed. 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, such as the defendants in this action, 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). As the magistrate judge further explained, plaintiff's vague allegation that a state court judge "either conspired with my public defender or conspired to cover up his actions...." does not transmute the defendants into state actors who may be sued under § 1983. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (vague and conclusory allegations are not sufficient to support a claim for civil rights violations based on conspiracy).

For the foregoing reasons, plaintiff's in forma pauperis status is HEREBY REVOKED for purposes of his pending appeal. The Clerk of this court shall promptly transmit a copy of this Order to the Clerk of the United States Court of Appeals for the Ninth Circuit.

20111024

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