Opinion
No. C 03-0799 MMC (PR)
March 4, 2003
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.
Plaintiff indicates he was released from prison in 2001. Apparently, he has returned to prison.
By separate order filed concurrently herewith, leave to proceed in forma pauperis has been granted.
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
Plaintiffs 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 Plyer 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 plaintiffs 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 counsel does not state a claim or violation of plaintiff's Sixth Amendment right to the effective assistance of counsel. The Sixth Amendment only guarantees "effective" counsel, not counsel of one's choosing. See Wheat v. United States, 486 U.S. 153, 159 (1988). In any event, because such a claim would call into question the validity of plaintiffs 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.