United States District Court, E.D. California
ORDER DIRECTING PLAINTIFF TO ELECT HABEAS CORPUS OR
42 U.S.C. § 1983 ACTION ORDER GRANTING PLAINTIFF LEAVE
TO AMEND COMPLAINT (DOC. 1)
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
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.)
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.
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
Civil Rights Claims Under 42 U.S.C. §
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.
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.
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).
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).
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
(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, ...