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Torres v. Hansen

United States District Court, N.D. California

April 2, 2018

MARIO TORRES, Plaintiff,
MIKE HANSEN, et al., Defendants.



         Mario 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. § 1915A.


         A. Procedural History

         Torres 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 [actions].

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.

         It is 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.)

         B. Claims About Torres' First Trial For Assault (Pages 14-45 of Third Amended Complaint)

         Torres 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.

         After 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 SI.[1]

         The third amended complaint concerns the first assault trial, and alleges the following:

         Two 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).


         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)(1), (2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

         To 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).

         As will 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.

         A. Public Defenders

         Torres 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.

         State 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).

         Torres 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 purported conspiracies.

         The 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 ...

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