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Maurice Muhammad v. Patrick J. Hennessey

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


May 1, 2013

MAURICE MUHAMMAD, PLAINTIFF,
v.
PATRICK J. HENNESSEY, DEFENDANT.

The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge

ORDER

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. On March 15, 2013, this case was dismissed and judgment entered.

On April 16, 2013, the Ninth Circuit Court of Appeals referred this action to this court to determine whether plaintiff's in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of in forma pauperis status is appropriate where the district court finds the appeal to be frivolous).

For the following reasons, plaintiff's appeal is frivolous. Plaintiff sued his court appointed appellate attorney on direct appeal in plaintiff's underlying criminal proceedings. Plaintiff alleged that defendant neglected his duties as a legal representative to the state and plaintiff. Plaintiff sought monetary and punitive damages.

Defense attorneys (including public defenders or appointed counsel) do not act under color of state law for purposes of § 1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1981); Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996). Plaintiff's complaint does not allege any facts suggesting that his attorney acted in a manner that went beyond the traditional functions of a lawyer. Polk County, 454 U.S. at 325.

Because plaintiff's appeal is frivolous, his in forma pauperis status on appeal is revoked.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's in forma pauperis status on appeal is revoked;

2. The Clerk of the Court shall serve a copy of this order on the Ninth Circuit Court of Appeals.

20130501

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