Opinion
No. No. 2:15-cv-0660 AC P
04-27-2015
THOMAS COLABINE, Plaintiff, v. SACRAMENTO COUNTY OFFICE OF THE PUBLIC DEFENDER, et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding pro se with a civil rights complaint and motion to proceed in forma pauperis. Plaintiff has consented to the jurisdiction of the undersigned Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c), and Local Rule 305(a). See ECF No. 4.
The only named defendant in this action is Hilary Davisson, the Sacramento County Public Defender who represented plaintiff in a criminal matter before the Sacramento County Superior Court, in Case No. 12F06176. Review of the website operated by the California courts indicates that this matter was appealed to the Court of Appeal, Third Appellate District, and a decision confirming plaintiff's conviction was issued by that court on March 23, 2015, in Case No. C074144. Plaintiff filed his complaint in this action on the same day, alleging that Ms. Davisson provided ineffective assistance of counsel at trial. Plaintiff seeks another jury trial and damages.
This court may take judicial notice of its own records and the records of other courts. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned).
In order to state a claim under Section 1983, a plaintiff must allege that: (1) the defendant was acting under color of state law at the time of the challenged conduct; and (2) defendant's conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or other laws of the United States. Parratt v. Taylor, 451 U.S. 27, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).
It is well established that public defenders do not act under color of state law for purposes of Section 1983 when representing a criminal defendant. Polk County v. Dodson, 454 U.S. 312, 325 (1981). This is because "[t]he decisions made by the public defender in the course of representing [her] client were framed in accordance with professional canons of ethics, rather than dictated by any rule of conduct imposed by the State." Blum v. Yaretsky, 457 U.S. 991, 1009 (1982) (citing Polk, 454 U.S. at 318). For this reason, plaintiff is unable to state a cognizable civil rights claim against his public defender, thus requiring dismissal of this action.
Plaintiff is informed, however, that after he has exhausted his claims in the California Supreme Court, he may seek to pursue a federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Habeas corpus is the exclusive remedy for a prisoner to challenge his conviction and/or sentence. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). However, a habeas claim must first be exhausted in the state's highest court before it may be raised in federal court. See Rose v. Lundy, 455 U.S. 509 (1982).
Review of the California courts' website indicates that plaintiff has not yet pursued in the California Supreme Court the Court of Appeal's March 25, 2015 decision in Case No. C074144.
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Accordingly, IT IS HEREBY ORDERED that:
1. This action is dismissed without prejudice, see Fed. R. Civ. P. 41(b);
2. Plaintiff's motion to proceed in forma pauperis is denied as moot; and
3. The Clerk of Court is directed to close this case. DATED: April 27, 2015
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE