Summary
rejecting Bivens action against federal public defender in a federal habeas action on the ground that "a federal public defender does not act under color of federal law when performing the traditional role of a lawyer representing an indigent criminal defendant"
Summary of this case from Mendoza v. WeinheimerOpinion
No. 13-16891
08-19-2014
CHARLES H. HILL, Plaintiff - Appellant, v. DEBRA A. BOOKOUT, Defendant - Appellee.
NOT FOR PUBLICATION
D.C. No. 3:13-cv-00382-LRH-WGC MEMORANDUM Appeal from the United States District Court for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Before: SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Nevada state prisoner Charles H. Hill appeals pro se from the district court's judgment dismissing his action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against an assistant federal public defender for alleged ineffective assistance of counsel during his federal habeas proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)). We may affirm on any ground supported by the record, Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008), and we affirm.
Dismissal of Hill's action was proper because a federal public defender does not act under color of federal law when performing the traditional role of a lawyer representing an indigent criminal defendant. See Bivens, 403 U.S. at 389 (for a Bivens action, plaintiff must plead and prove that a federal officer acted under color of federal law during the alleged deprivation of a constitutional or federally protected right); Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982) (public defender does not act under color of federal law in performing the identical functions as a lawyer to an indigent defendant in a federal criminal proceeding).
Hill's remaining contentions are foreclosed by our conclusion that defendant did not act under color of federal law.
Hill's application for leave to proceed in forma pauperis, filed on May 15, 2014, is denied as moot because the district court previously granted him leave to proceed in forma pauperis, and his in forma pauperis status continues in this court.
Hill's request for "Amended FRAP Rules Book July 2014" and "docket entries on all cases," filed on July 13, 2014, and his motion to Expand the Record, filed on August 11, 2014, are denied.
AFFIRMED.