Opinion
23-cv-05246-JD
04-29-2024
ANGEE BURRELL, et al., Plaintiffs, v. JO-ANNA NIEVES, et al., Defendants.
ORDER RE DISMISSAL
JAMES DONATO UNITED STATES DISTRICT JUDGE
Plaintiff, a California state prisoner, filed a pro se civil rights complaint against his lawyer under 42 U.S.C. § 1983. The original complaint was dismissed with leave to amend, and plaintiff filed an amended complaint.
Federal courts 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). 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. Id. at 1915A(b)(1),(2). Pro se pleadings are liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed factual allegations, . . . a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do .... Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” standard of Twombly: “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). A private individual generally does not act under color of state law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). Nor does a private entity. See, e.g., Heineke v. Santa Clara University, 965 F.3d 1009, 1013 (9th Cir. 2020) (private university was not a state actor even though it received federal and state funds, the receipt of the funds was conditioned on compliance with federal and state anti-discrimination laws and it could lose government funds for failure to comply with the law).
In the original complaint, plaintiff alleged that his lawyer, who was in private practice and was not a public defender, did not perform as he expected in connection with a resentencing petition. That is not grounds for a federal civil rights claim. The privately retained lawyer was not acting under the color of state law, and so the Section 1983 claim was not tenable. Although the Court had doubts that plaintiff could plead facts that might save his claim, it was not prepared to close the door forever at that time. Plaintiff was permitted to file an amended complaint addressing these issues. Plaintiff's amended complaint is nearly identical to the original complaint and does not address the deficiencies noted by the Court. Plaintiff again fails to present a federal claim.
This case is dismissed without leave to amend because no amount of amendment would cure the deficiencies in the complaint. The Clerk is requested to close this case.
IT IS SO ORDERED.