Opinion
No. C 03-491 SI (pr)
March 6, 2003
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
Plaintiffs application to proceed in forma pauperis is GRANTED. (Docket #2 and #4.) The total filing fee due is $150.00. The initial partial filing fee due for the plaintiff at this time is $24.33. The clerk shall send a copy of this order and the attached instructions to the plaintiff, the jail's trust account office, and the court's financial office.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 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 Finance Office
ORDER OF DISMISSAL
Kenneth Singleton, an inmate at the Santa Rita County Jail in Dublin, California, has filed a pro se civil rights complaint in which he alleges that (1) he received inadequate assistance from the deputy public defender who represented him in his state criminal case, (2) the prosecutor engaged in misconduct in the state criminal case, and (3) the judge presiding over his case erroneously denied his motion to discharge counsel. His complaint is now before the court for review pursuant to 28 U.S.C. § 1915A.A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 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. See id. at 1915A(b)(1),(2). 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 elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law.See West v. Atkins, 487 U.S. 42, 48 (1988).
Singleton's complaint fails to state a claim for relief under Section 1983 against his public defender because one cannot sue his lawyer for allegedly ineffective assistance in a Section 1983 action. An attorney performing a lawyer's traditional functions as counsel to a defendant in criminal proceedings does not act under color of state law, as a person must to be liable under Section 1983. See Polk County v. Dodson, 454 U.S. 312, 325(1981) (public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding); Franklin v. Oregon, 662 F.2d 1337, 1345 (9th Cir. 1981).
Singleton's complaint fails to state a claim for relief under Section 1983 based on his claim that the district attorney engaged in misconduct in that he was slow to disclose discovery materials to Singleton's attorney and did not properly present evidence about a bullet in the victim's body A prosecutor performing an advocate's role is an officer of the court entitled to absolute immunity from a Section 1983 action.See Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993); Imbler v. Pachtman, 424 U.S.409, 413 (1976) (prosecutor absolutely immune from liability for the knowing use of false testimony at trial).
Singleton's complaint fails to state a claim for relief under Section 1983 against the judge for ruling against him on his motion to discharge counsel in his criminal case because the state judge is absolutely immune from civil liability for damages for acts performed in her judicial capacity. See Pierson v. Rav, 386 U.S. 547, 553-55 (1967) (applying judicial immunity to actions under 42 U.S.C. § 1983).
The complaint discloses that Singleton was convicted recently of murder. If Singleton wishes to challenge his criminal conviction, he may file a petition for writ of habeas corpus in federal court, Preiser v. Rodriguez, 41 1 U.S. 475, 500 (1973), but not until he exhausts state judicial remedies, Granberry v. Greer, 481 U.S. 129, 134 (1987). To exhaust his state judicial remedies, he must present each of his claims to the California Supreme Court, for example in a direct appeal or by a state petition for writ of habeas corpus.
For the foregoing reasons, the complaint is DISMISSED without leave to amend. The clerk shall close the file.
JUDGMENT
The complaint is dismissed for failure to state a claim upon which relief may be granted.IT IS SO ORDERED AND ADJUDGED.