Doyle v. Marshal

          ORDER DIRECTING PLAINTIFF TO ELECT HABEAS CORPUS OR 42 U.S.C. § 1983 ACTION ORDER GRANTING PLAINTIFF LEAVE TO AMEND COMPLAINT (DOC. 1)

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a state prisoner proceeding pro se, filed this action on October 11, 2019, without paying the filing fee or filing an application to proceed in forma pauperis. (Doc. 1.) On October 18, 2019, the Court directed Plaintiff to either pay the filing fee or submit a completed application to proceed in forma pauperis within 30 days of the date of the order. (Doc. 2.) Plaintiff filed a completed application to proceed in forma pauperis on October 29, 2019. (Doc. 3.)

         Plaintiff filed the case on the form for claims brought under 42 U.S.C. § 1983. (Doc. 1.) A review of Plaintiff's complaint reveals that Plaintiff's allegations relate to his conviction in a state court criminal case and certain actions of the prosecutor and his defense attorneys. (See Id. at 3- 5.) Plaintiff contends he was provided ineffective assistance of counsel by Defendants Marjorie Sheldon and Ciummo and Associates, and that Defendant Noah Marshal pressured him into pleading guilty. (See id.) It is difficult to discern whether Plaintiff wishes to pursue this as a petition for habeas corpus or as a civil rights action under 42 U.S.C. § 1983.

         Plaintiff is provided the form complaints for both types of actions, leave to file an amended complaint on the form that corresponds with the action he intends to pursue here, and information pertaining to the differences in filing fees between each type of action. Plaintiff's application to proceed in forma pauperis, (Doc. 3), is sufficient and Plaintiff will not be required to re-file an application to proceed in forma pauperis with his amended complaint.

         I. Civil Rights Claims Under 42 U.S.C. § 1983

         The Civil Rights Act provides:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983 (“section 1983”). The statute plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff during his confinement. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). To state a claim for relief under section 1983, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.

         A plaintiff seeking relief under section 1983 must also establish that the defendants acted under the color of state law. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986). A “lawyer representing a client is not, by virtue of being an officer of the court, a state actor ‘under color of state law' within the meaning of § 1983.” Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981). This rule applies even if counsel was appointed by the court to represent Plaintiff at his criminal trial. Id. at 318-19.^[1]

         A. Screening Requirement

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

         District attorneys and other prosecutors are absolutely immune from civil suits for damages under section 1983 that challenge activities related to the initiation and presentation of criminal prosecutions. Imbler v. Patchtman, 424 U.S. 409, 424-28, 431 (1976); see also Van de Kamp v. Goldstein, 555 U.S. 335, 342-43 (2009); Botello v. Gammick, 413 F.3d 971, 975 (9th Cir .2005); Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984) (holding prosecutorial immunity extends to actions during both the pre-trial and post-trial phase of a case).

         B. Filing Fee

         The filing fee for civil actions is $400: $350 pursuant to 28 U.S.C. § 1914(a) and a $50 administrative fee pursuant to 28 U.S.C. § 1914, note 14. A party who cannot afford to pay that amount in a lump sum, may apply for in forma pauperis status under 28 U.S.C. § 1915. This section states:

(b)(1) . . . if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, ...