United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, alleges a claim of
ineffective assistance of counsel pursuant to 28 U.S.C.
§ 1983, and has requested leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915.
Application to Proceed In Forma Pauperis
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). ECF Nos. 2. Accordingly, the
request to proceed in forma pauperis will be granted.
is required to pay the statutory filing fee of $350.00 for
this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 1915(b)(1). By separate order, the court will direct
the appropriate agency to collect the initial partial filing
fee from plaintiff's trust account and forward it to the
Clerk of the Court. Thereafter, plaintiff will be obligated
for monthly payments of twenty percent of the preceding
month's income credited to plaintiff's prison trust
account. These payments will be forwarded by the appropriate
agency to the Clerk of the Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(2).
Statutory Screening of Prisoner Complaints
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 “frivolous,
malicious, or 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).
“is [legally] frivolous where it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Franklin v.
Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).
“[A] judge may dismiss . . . claims which are
‘based on indisputably meritless legal theories' or
whose ‘factual contentions are clearly
baseless.'” Jackson v. Arizona, 885 F.2d
639, 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S.
at 327), superseded by statute on other grounds as stated
in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
basis. Franklin, 745 F.2d at 1227-28 (citations
Rule of Civil Procedure 8(a)(2) requires only ‘a short
and plain statement of the claim showing that the pleader is
entitled to relief,' in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). “Failure to state a claim under § 1915A
incorporates the familiar standard applied in the context of
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).” Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order
to survive dismissal for failure to state a claim, a
complaint must contain more than “a formulaic
recitation of the elements of a cause of action;” it
must contain factual allegations sufficient “to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citations omitted).
“‘[T]he pleading must contain something more . .
. than . . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of
action.'” Id. (alteration in original)
(quoting 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1216 (3d ed.
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 Twombly, 550 U.S. at 570).
“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. (citing
Twombly, 550 U.S. at 556). In reviewing a complaint
under this standard, the court must accept as true the
allegations of the complaint in question, Hosp. Bldg. Co.
v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as
well as construe the pleading in the light most favorable to
the plaintiff and resolve all doubts in the plaintiff's
favor, Jenkins v. McKeithen, 395 U.S. 411, 421
(1969) (citations omitted).
complaint names Nancy Dillion, the Solano County Public
Defender, as the only defendant. ECF No. 1 at 1. Plaintiff
alleges that he was convicted on September 5, 2005 for first
degree pre-meditated murder/mayhem/great bodily injury,
assault with a deadly weapon, and another weapon related
charge. Id. at 3. Plaintiff states that in 2004 the
District Court dismissed a petition for habeas corpus and in
2014 the Ninth Circuit reversed and remanded. Id. In
2017 the District Court granted an “IAC claim.”
Id. In 2018, the Eastern District Court vacated
plaintiff's convictions for defendant Dillion's
failure to investigate. Id. Plaintiff alleges he
suffered mental anguish, mental stress, health deterioration,
and loss of liberty and freedom. Id. Plaintiff seeks
relief in the form of punitive damages, in the amount of $5,
000, 000.00. Id. at 6.
Failure to State a Claim
state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(citations omitted). “[A] public defender does not act
under color of state law when performing a lawyer's