United States District Court, N.D. California
ORDER OF SERVICE RE: DKT. NO. 1
ILLSTON UNITED STATES DISTRICT JUDGE
Torres, a California inmate, filed a pro se civil
rights action under 42 U.S.C. § 1983. His pleading is
now before the court for review pursuant to 28 U.S.C. §
filed a civil rights action asserting claims against numerous
defendants for alleged misdeeds during his arrest and in
connection with criminal cases filed against him. See
Torres v. Saba, No. 16-cv-6607 SI. His third amended
complaint in that action had two segments: claims about his
arrest on July 4, 2012, and claims about Torres' first
trial for an assault he committed four months later. In Case
No. 16-cv-6607 SI, the court determined that the claims
against the defendants in the second segment were not
properly joined with the claims against the defendants in the
first segment of the third amended complaint and severed
them. See Docket No. 21 in Case No. 16-cv-6607 SI.
The court explained:
The claims against the Concord Police Department and its
members arising out of events and omissions on July 4, 2012
will proceed in [Case No. 16-cv-6607 SI]. All other claims
and defendants will be severed because they are not properly
joined with the foregoing claims. That is, the claims and
requests for relief alleged at pages 15-45 of the third
amended complaint will be severed and filed as a new action
[i.e., Case No. 17-cv-6587 SI], where they will be addressed.
. . . The jurisdictional allegations on page 1 apply in both
Docket No. 12 at 10 (brackets added). The clerk was directed
to open a new action (i.e., this action, Case No. 17-cv-6587
SI), and to file a copy of the third amended complaint as the
first document in the new action. Id.
now time to review the claims in the third amended complaint
(Docket No. 1) in this action. (The claims at pages 9:13
through 14:22 and the requests for relief at pages 43-45 that
relate to those claims are stricken from the third amended
complaint in this action (i.e., Case No. 17-cv-6587 SI) and
will not be discussed further.)
Claims About Torres' First Trial For Assault (Pages
14-45 of Third Amended Complaint)
was accused of assaulting Rick Hendricks on November 28,
2012. Following a trial in Contra Costa County Superior
Court, Torres was convicted and received a six-year prison
sentence for assault by means of force likely to produce
great bodily injury and battery on Rick Hendricks.
See Docket No. 1-1 (People v. Torres,
Cal.Ct.App. Case No. A139734, 12/17/14 opinion at 1, 2). On
December 17, 2014, the conviction was overturned on appeal,
and the case was remanded “for retrial or other
proceedings consistent with this opinion.”
Torres, slip opinion at 14. The conviction was
reversed because of the cumulative effect of the erroneous
admission of hearsay evidence relating to an uncharged
assault by Torres upon his girlfriend, failure to give a
limiting instruction, and allowance of a cross-examination of
the defendant that went far beyond impeachment.
Torres, slip opinion at 13.
the reversal, the prosecution decided to retry Torres for the
assault on Rick Hendricks. Torres eventually agreed to a plea
bargain and entered a guilty plea covering several cases
pending against him, including convictions for battery
causing great bodily injury and assault by force likely to
cause great bodily injury to Rick Hendricks.
See Docket No. 11 at 13-20 in Case No. 16-cv-6607
third amended complaint concerns the first assault trial, and
alleges the following:
Contra Costa County public defenders provided inadequate
representation in that case (Docket No. 1 at 15-35); two
probation officers made false statements in a probation
report (id. at 27-29); the Office of the Contra
Costa County Public Defender failed to properly hire, train,
and supervise public defenders, and covered up wrongdoings
(id. at 36-37); four court reporters prepared
incorrect transcripts during the pretrial hearings and at
trial (id. at 37-39); Contra Costa County has
policies or customs that led to the misdeeds mentioned in
this paragraph (id. at 40-41); and the State of
California owes Torres damages for everything alleged in the
third amended complaint (id. at 43).
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)(1), (2). Pro se
pleadings must be liberally construed. See Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the
Constitution or laws of the United States was violated and
(2) that the violation was committed by a person acting under
the color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988).
be seen below, state law claims predominate in this action.
Although state law claims predominate, the cognizable §
1983 claims that do exist give the court federal question
jurisdiction over the action, and Torres has invoked the
federal court's supplemental jurisdiction over his state
law claims. See Docket No. 1 at 1.
has named as defendants two public defenders, Natalie Saba
and Robin Lipetzky, who were “assigned to represent
[Torres] in his criminal proceedings.” Docket No. 1 at
2, 14. Saba, under the supervision of Lipetzky, allegedly
failed to adequately represent Torres in the criminal
proceedings that led to his conviction for assaulting
Hendricks. Docket No. 1 at 14-35. While supervised by
Lipetzky, Saba allegedly failed to provide Torres with
discovery, failed to adequately cross-examine witnesses
against Torres, failed to file motions Torres wanted filed,
participated in hearings during trial without Torres being
present, failed to object to some objectionable evidence,
refused to investigate Torres' defense, and recommended
that Torres accept a plea bargain. See Id. at 31-32.
Lipetzky was made aware of Saba's shortcomings.
Id. at 32. Saba and Lipetzky negligently and
intentionally failed to perform their duties as public
defenders. Id. at 35.
court criminal defendants cannot sue their lawyers in federal
court under 42 U.S.C. § 1983 for most lawyer-type
mistakes. A public defender does not act under color of state
law, an essential element of a claim under § 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).
alleges in conclusory fashion that his public defenders
conspired with the prosecutor and judges. Conclusory
allegations of a conspiracy unsupported by material facts are
insufficient to state a claim against any of the alleged
conspirators. See Simmons v. Sacramento County Superior
Court, 318 F.3d 1156, 1161 (9th Cir. 2003); Woodrum
v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989).
A conspiracy is not itself a constitutional tort under 42
U.S.C. § 1983, but may “enlarge the pool of
responsible defendants by demonstrating their causal
connections to the violation.” Lacey v. Maricopa
County, 693 F.3d 896, 935 (9th Cir. 2012) (en banc).
Torres' conclusory allegations that the public defenders
conspired with the prosecutor and judges are insufficient to
turn them into state actors or otherwise hold them liable
under § 1983. The court had previously cautioned Torres
that conclusory allegations were insufficient to state
conspiracy-based liability. See Docket No. 12 at 11
in Case No. 16-cv-6607 SI. Further leave to amend will not be
granted because it would be futile: Torres was either
unwilling or unable to allege anything but conclusions about
third amended complaint fails to state a claim under §
1983 against Saba or Lipetzky because neither was a state
actor in doing the acts and omissions alleged in the third
amended complaint. When they did their alleged misdeeds in
representing Torres, Saba and Lipetzky were performing a
lawyer's traditional functions, and therefore were not
acting under color of state law. The § 1983 claims
against them for their representation of ...