Opinion
No. C 03-0799 MMC (PR) (Docket No. 2)
March 4, 2003
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
Plaintiff's application for permission to proceed in forma pauperis is GRANTED. The total filing fee that ultimately will be due is $150.00. In view of the average monthly deposits and balances in plaintiff's inmate trust account over the six months preceding the filing of this action, no initial partial filing fee is due at this time. Funds for the remainder of the filing fee will be taken from income credited to plaintiff's account in accordance with 28 U.S.C. § 1915(b)(2). A copy of this order and the attached instructions will be sent to the plaintiff, the prison trust account office, and the court's financial office.
This order terminates docket number 2.
IT IS SO ORDERED.
INSTRUCTIONS FOR PAYMENT OF PRISONER'S FILING FEE
The prisoner shown as the plaintiff or petitioner on the attached order has filed a civil action in forma pauperis in this court and owes to the court a filing fee. Pursuant to 28 U.S.C. § 1915, the fee is to be paid as follows:
The initial partial filing fee listed on the attached order should be deducted by the prison trust account office from the prisoner's trust account and forwarded to the clerk of the court as the first installment payment on the filing fee. This amount is twenty percent of the greater of (a) the average monthly deposits to the prisoner's account for the 6-month period immediately preceding the filing of the complaint/petition or (b) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint/petition.
Thereafter, on a monthly basis, 20 percent of the preceding month's income credited to the prisoner's trust account should be deducted and forwarded to the court each time the amount in the account exceeds ten dollars ($10.00). The prison trust account office should continue to do this until the filing fee has been paid in full.
If the prisoner does not have sufficient funds in his/her account to pay the initial partial filing fee, the prison trust account office should forward the available funds, and carry the balance forward each month until the amount is fully paid.
If the prisoner has filed more than one complaint, (s)he is required to pay a filing fee for each case. The trust account office should make the monthly calculations and payments for each case in which it receives an order granting in forma pauperis and these instructions.
The prisoner's name and case number must be noted on each remittance. The initial partial filing fee is due within thirty days of the date of the attached order. Checks should be made payable to Clerk, U.S. District Court and sent to Prisoner Accounts Receivable, U.S. District Court, 450 Golden Gate Avenue, Box 36060, San Francisco, CA 94102.
cc: Plaintiff/Petitioner Finance Office
ORDER OF DISMISSAL
Plaintiff, a California prisoner currently incarcerated in a California state prison, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He claims that various California county officials and the state courts have denied him equal protection of the law by appointing attorneys for him who have not been as effective in representing him at trial and on appeal as counsel who are privately retained. He also seeks leave to proceed in forma pauperis.DISCUSSION
A. Standard of ReviewFederal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the, complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). 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 essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. West v Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
Plaintiff's claim does not implicate the Equal Protection Clause because he does not allege that the defendants engaged in intentional discrimination. "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). A plaintiff alleging denial of equal protection under 42 U.S.C. § 1983 must plead intentional unlawful discrimination or allege facts that are at least susceptible of an inference of discriminatory intent. See Monteiro v. Tempe Union High School Dist.; 158 F.3d 1022, 1026 (9th Cir. 1998). Here, plaintiff alleges that in the many criminal prosecutions he has faced in his lifetime, he routinely has been appointed counsel by defendants, in each instance based on his indigence. According to plaintiff, this conduct is discriminatory because appointed counsel are not as effective as privately retained counsel. The flaw in plaintiff's claim is that there is no allegation that the defendants are treating similarly situated people differently. Defendants have no role in selecting counsel privately retained by non-indigent defendants. Rather, such government officials become involved in selecting counsel only for indigent defendants. There is no allegation that the government is discriminating among indigent defendants, appointing more, effective counsel for some indigent defendants than for others. Indeed, plaintiff alleges that all indigent defendants are appointed attorneys who are less effective than private counsel. Accordingly, plaintiff has failed to state a cognizable claim for a violation of equal protection.
Plaintiff's allegation that his attorneys have been less effective than private C9unsel does not state a claim for violation of plaintiff's Sixth Amendment right to me effective assistance of counsel. The Sixth Amendment only guarantees "effective" counsel, not counsel of one's choosing. See Wheat y. United States, 486 U.S. 153, 159 (1988). In any event, because such a claim would call into question the validity of plaintiff's convictions, it must be brought in a habeas petition under Title 28 of the United States Code. See Calderon v. Ashmus, 523 U.S. 740, 747 (1998); Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997).
CONCLUSION
For the foregoing reasons, the complaint is DISMISSED for failure to state a cognizable basis for relief.All pending motions are terminated.
The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED the complaint is DISMISSED for failure to state a cognizable basis for relief.