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Vieira v. Van Winkle

United States District Court, N.D. California

October 9, 2014

RICHARD JOHN VIEIRA, Plaintiff,
v.
WESLEY A. VAN WINKLE, Defendant.

ORDER OF DISMISSAL

SUSAN ILLSTON, District Judge.

Richard John Vieira, an inmate on death row at San Quentin State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983 against his appointed counsel. In his complaint, he complains about counsel's representation during Vieira's capital appeal. His complaint is now before the court for review under 28 U.S.C. § 1915A and § 1915(e)(2).

A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. at 1915A(b). Even if § 1915A does not apply - as, for example, occurs when the prisoner-plaintiff does not seek redress from a governmental entity or officer or employee of a governmental entity - § 1915 permits the court to review a complaint filed in forma pauperis, and dismiss the action if the complaint fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Federal courts are courts of limited jurisdiction. As relevant here, the court only has jurisdiction to entertain this action if it raises a federal question, such as a civil rights claim asserted under 42 U.S.C. § 1983. (There are other federal statutes that grant other bases of federal court jurisdiction, but none are applicable to this action.) In simple terms, a prisoner's complaint can go forward in federal court if a claim is stated under § 1983; if a complaint does not state a claim under § 1983, the plaintiff must file his action in state court.

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a person acting under the color of state law (2) violated a right secured by the Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42, 48 (1988).

The amended complaint fails to state a claim under § 1983 because the defendant is not a state actor. State court criminal defendants cannot sue their lawyers in federal court for most lawyer-type mistakes. A public defender does not act under color of state law, an essential element of an action under 42 U.S.C. § 1983, when performing a lawyer's traditional functions, such as entering pleas, making motions, objecting at trial, cross-examining witnesses, and making closing arguments. Polk County v. Dodson, 454 U.S. 312, 318-19 (1981); cf. Vermont v. Brillon, 556 U.S. 81, 84 (2009) (state court erred in ranking assigned counsel essentially as state actors for purposes of evaluating speedy trial claim). A private attorney under court appointment to represent a prisoner in a capital appeal also is not a state actor. See Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003). Plaintiff's conclusory allegations of conspiracy do not suffice to transform the private attorney's actions into state action. See id. As the defendant here is not a state actor, he has no liability under § 1983 for the acts and omissions alleged by plaintiff in this action.

For the foregoing reasons, this action is DISMISSED for failure to state a claim upon which relief may be granted. Leave to amend will not be granted because the defect in the complaint is not curable.

In light of the dismissal of this action, plaintiff's motion for appointment of counsel is DENIED. (Docket # 4.)

The clerk shall close the file.

IT IS SO ORDERED.


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