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Gaines v. Greenberg

United States District Court, N.D. California

November 21, 2017

MARY LEE GAINES, Plaintiff,
v.
MARK DAVID GREENBERG, et al., Defendants.

          ORDER REOPENING ACTION; ORDER OF DISMISSAL

          RICHARD SEEBORG, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         By way 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.

         BACKGROUND

         This 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.

         DISCUSSION

         A. Standard of Review

         A 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).

         A “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).

         B. Legal Claims

         Plaintiff, 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.

         First, 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).[1] 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.

         Second, 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.

         Where, 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 the ...


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