United States District Court, N.D. California
ORDER REOPENING ACTION; ORDER OF DISMISSAL
RICHARD SEEBORG, UNITED STATES DISTRICT JUDGE.
of this lawsuit, plaintiff seeks damages from her state
appellate attorney, the institution that appointed him (the
First District Appellate Project), and its executive
director. The suit is barred for the reasons stated below and
will be dismissed.
federal civil rights action was dismissed because plaintiff
failed to comply with the Court's order to file a
complete application to proceed in forma pauperis
(“IFP”), or pay the filing fee of $400.00.
Plaintiff since has filed a complete IFP application. The
action is REOPENED. The Clerk shall modify the docket to
reflect this. The judgment (Dkt. No. 11), and the order of
dismissal (Dkt. No. 10) are VACATED.
Standard of Review
federal court must conduct a preliminary screening in 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 that 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.
§ 1915A(b)(1), (2). Pro se pleadings must be liberally
construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“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.” Id. (quoting
Twombly, 550 U.S. at 556). Furthermore, a court
“is not required to accept legal conclusions cast in
the form of factual allegations if those conclusions cannot
reasonably be drawn from the facts alleged.” Clegg
v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.
1994). To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege two essential elements: (1) that a
right secured by the Constitution or laws of the United
States was violated, and (2) that the alleged violation was
committed by a person acting under the color of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988).
a state prisoner proceeding pro se, alleges that her
appellate attorney provided constitutionally inadequate
representation and prevented her from accessing the courts
when he failed to return court transcripts to her. The
appellate project and its executive director are liable for
appointing her attorney. In sum, according to plaintiff,
defendants are liable under section 1983 for violating her
federal constitutional rights and under state tort law for
malpractice and negligence. These allegations fail to state
any claim for relief, however.
state criminal defendants generally cannot sue their
attorneys in federal court for deficient representation. A
state-appointed defense attorney “does not qualify as a
state actor when engaged in his general representation of a
criminal defendant.” Polk County v. Dodson,
454 U.S. 312, 321 (1981). Polk County “noted,
without deciding, that a public defender may act under color
of state law while performing certain administrative [such as
making hiring and firing decisions], and possibly
investigative, functions.” Georgia v.
McCollum, 505 U.S. 42, 54 (1992) (citing Polk
County, 454 U.S. at 325.) Plaintiff's claims fall
squarely within Polk County's ambit. Under that
standard, plaintiff's allegations categorically fail to
state a claim for relief under section 1983.
this suit is barred by another Supreme Court opinion,
Heck v. Humphrey, 512 U.S. 477 (1994). In order to
recover damages for an allegedly unconstitutional conviction
or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a
42 U.S.C. § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called
into question by a federal court's issuance of a writ of
habeas corpus. Id. at 486-487. A claim for damages
bearing that relationship to a conviction or sentence that
has not been so invalidated is not cognizable under section
1983. Id. at 487.
as in the instant matter, a state prisoner seeks damages in a
section 1983 suit, the district court must therefore consider
whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless