Opinion
No. C 02-0076 WHA (PR)
February 20, 2002
ORDER OF DISMISSAL
Plaintiff, an inmate at Pelican Bay State Prison, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.
STATEMENT
Defendant was plaintiff's privately-retained lawyer in his criminal case. Plaintiff contends that defendant failed to provide him with adequate counsel.
DISCUSSION
A. Standard of Review
Federal 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). 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 must be liberally construed. Balistreri v. Pacifica Police Dept, 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 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
Neither appointed nor retained defense attorneys act under color of state law. Polk County v. Dodson, 454 U.S. 312, 317-25 (1981) (public defender); Briley v. State of California, 564 F.2d 849, 855 (9th Cir. 1977). Plaintiff therefore has not, and cannot, state a section 1983 claim against his attorney. This case will be dismissed.
CONCLUSION
Leave to proceed in forma pauperis (doc 2) is DENIED. For the reasons set out above, this action is DISMISSED with prejudice.
This dismissal does not prevent plaintiff from proceeding against defendant on another legal theory, such as legal malpractice, in state court.
JUDGMENT
The court has dismissed this prisoner in forma pauperis compliant. A judgment of dismissal with prejudice is entered in favor of defendant. Plaintiff shall take nothing by way of his complaint.PRISONER'S IN FORMA PAUPERIS APPLICATION
I, Charles Henry Bracey, declare under penalty of perjury that I am the plaintiff in the above entitled case and the information I offer throughout this application is true and correct. I offer this application in support of my request to proceed without being required to prepay the full amount of fees, costs or give security. I state that because of my poverty I am unable to pay the costs of this action or give security, and that I believe that I am entitled to relief.In support of this application, I provide the following information:
1. Are you presently employed? Yes No "X"
If your answer is "yes, " state both your gross and net salary or wages per month, and give the name and address of your employer:
Gross: ___________ Net: ____________
Employer:
If the answer is "no, " state the date of last employment and the amount of the gross and net salary and wages per month which you received. (If you are imprisoned, specify the last place of employment prior to imprisonment.)
Sturgical Staff Inc. (1998)
2. Have you received, within the past twelve (12) months, any money from any of the following sources:
a. Business, Profession or Yes No "X" self employment
b. Income from stocks, bonds, Yes No "X" or royalties?
c. Rent payments? Yes No "X"
d. Pensions, annuities, or Yes No "X" life insurance payments?
e. Federal or State welfare payments, Yes No "X" Social Security or other government source?
If the answer is "yes" to any of the above, describe each money and state the amount received from each.
3. Are you married? Yes "X" No
Spouse's Full Name: Ndego Opia Bracey
Spouse's Place of Employment: Charles Swalb Investment
Spouse's Monthly Salary, Wages or Income: Gross $1,847.00 monthly Net $2,000.00
4. a. List amount you contribute to your spouse's support: $ 0.00
b. List the persons other than your spouse who are dependent upon you for support and indicate how much you contribute toward their support: Kristi L. Porter 16 yrs old 1021 National St., Vicksburg, Mississipp
5. Do you own or are you buying a home? Yes No "X"
Estimated Market Value: $______ Amount of Mortgage: $________
6. Do you own an automobile? Yes "X" No
Make 1998 Year BMW Model 320-I
Is it financed? Yes "X" No If so, Total due: $3,500.00
Monthly Payment: $410.00
7. Do you have a bank account? (If you are a prisoner, include funds in your prison account, and provide the certificate attached, signed by an officer of the prison.)
Yes No "X"
Name(s) and address(es) of bank:
Present balance(s): $
Do you own any cash? Yes "X" No Amount: $69.00
Do you have any other assets? (If "yes," provide a description of each asset and its estimated market value.) Yes No "X"
8. What are your monthly expenses?
Rent: $ 0.00 Utilities: $ 0.00
Food: $ 0.00 Clothing: $ 0.00
Charge Accounts: Total Owed On Name of Account Monthly Payment This Account 0 0 0
9. Do you have any other debts? (List current obligations, indicating amounts and to whom they are payable.)
I consent to prison officials withdrawing from my trust account and paying to the court the initial partial filing fee and all installment payments required by the court.
I declare under the penalty of perjury that the foregoing is true and correct and understand that a false statement herein may result in the dismissal of my claims.
DATE 1-15-02 SIGNATURE OF APPLICANT Charles Bracey
CERTIFICATE OF FUNDS IN PRISONER'S ACCOUNT
I certify that attached hereto is a true and correct copy of the prisoner's trust account statement showing transactions of
[prisoner name] _____________________ for the last six months at
[name of institution) _________________ where (s)he is confined.
I further certify that the average deposits each month to this prisoner's account for the most recent 6-month period were $_______ and the average balance in the prisoner's account each month for the most recent 6-month period was $________
Dated:____________ ____________________________ Authorized officer of the institution
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA INSTRUCTIONS FOR PRISONER'S IN FORMA PAUPERIS APPLICATION
You must submit to the court a completed Prisoner's In Forma Pauperis Application if you are unable to pay the entire filing fee at the time you file your complaint or petition. Your application must include copies of the prisoner trust account statement showing transactions for the last six months and a certificate of funds in prisoner's account, signed by an authorized officer of the institution.
A. Non-habeas Civil Actions
The filing fee for any civil action other than a habeas is $150.00. Even if you are granted leave to proceed in forma pauperis, you must still pay the full amount of the court's filing fee, but the fee will be paid in several installments. 28 U.S.C. § 1915.
You must pay an initial partial filing fee of 20 percent of the greater of (a) the average monthly deposits to your account for the 6-month period immediately before the complaint was filed or (b) the average monthly balance in your account for the 6-month period immediately before the complaint was filed. The court will use the information provided on the certificate of funds and the trust account statement to determine the filing fee immediately due and will send instructions to you and the prison trust account office for payment if in forma pauperis status is granted.
After the initial partial filing fee is paid, your prison's trust account office will forward to the court each month 20 percent of the most recent month's income to your prison trust account, to the extent the account balance exceeds ten dollars ($10.00). Monthly payments will be required until the full filing fee is paid. If you have no funds over ten dollars ($10.00) in your account, you will not be required to pay part of the filing fee that month.
If your application to proceed in forma pauperis is granted, you will be liable for the full $150.00 filing fee even if your civil action is dismissed. That means the court will continue to collect payments until the entire filing fee is paid. However, if you do not submit this completed application the action will be dismissed without prejudice and the filing fee will not be collected.
B. Habeas Actions
The filing fee for a habeas action is $5.00. If you are granted leave to proceed in forma pauperis you will not be required to pay any portion of this fee. If you are not granted leave to proceed in forma pauperis you must pay the fee in one payment and not in installments. If you use a habeas form to file a, non-habeas civil action, you will be required to pay the $150.00 filing fee applicable to all non-habeas civil actions.
Case Number: ________
CERTIFICATION OF FUNDS IN PRISONER'S ACCOUNT
I certify that attached hereto is a true and correct copy of the prisoner's trust account statement showing transactions of Charles H. Bracey K92297 for the last six months at Pelican Bay State Prison where he is confined.
I further certify that the average deposits each month to this prisoner's account for the most recent 6-month period were $11.70 and the average balance in the prisoner's account each month for the most recent 6-month period was $120.56. (20% $24.12)
Dated: 1-22-02 L. Clark Acct I Supervisor Authorized officer of the institution
REPORT ID: TS3030 REPORT DATE: 01-18-02 PAGE NO: 1
CALIFORNIA DEPARTMENT OF CORRECTIONS PELICAN BAY STATE PRISON INMATE TRUST ACCOUNTING SYSTEM INMATE TRUST ACCOUNTING STATEMENT
FOR THE PERIOD: JUL. 01, 2001 THRU JAN. 18, 2002
ACCOUNT NUMBER : K92297 BED/CELL NUMBER: BF04L 000000107L ACCOUNT NAME : BRACEY, CHARLES HENRY PRIVILEGE GROUP: B
TRAN DATE CODE DESCRIPTION COMMENT CHECK NUM DEPOSITS WITHDRAWALS BALANCE
07/01/2001 BEGINNING BALANCE 0.00 07-03 D320 TRUST FUNDS T 0017 SQ 175.18 175.18 07/10 FC02 DRAW-FAC 2 0132 B-7 10.00 165.18 07/16*DD30 CASH DEPOSIT 0216SI0713 7.80 172.98 07/31 FR01 CANTEEN RETUR 100418 2.55- 175.53 08/07 FC02 DRAW-FAC 2 0564 B-4 20.00 155.53 08/15*DD30 CASH DEPOSIT 0699ML#31 15.60 171.13 08/29 W536 COPAY CHARGE 0887D08/22 5.00 166.13 09/07 W513 MISC. CHARGES 1010 0.75 165.38 09/07 W516 LEGAL COPY CH 1013 1.00 164.38 09/11 FC02 DRAW-FAC 2 1065 B4 65.00 99.38 09/19*DD30 CASH DEPOSIT 1151 ML#55 15.60 114.98 09/24 W516 LEGAL COPY CH 1219 0.25 114.73 09/24 W516 LEGAL COPY CH 1219 1.30 113.43 09/26 W516 LEGAL COPY CH 1258 0.40 113.03 09/26 W516 LEGAL COPY CH 1258 1.15 111.88 10/01 FR01 CANTEEN RETUR 101318 0.10- 111.98 10/05 W402 DONATION-MUSL 1416SUBPIE 7.50 104.48 10/09 FC02 DRAW-FAC 2 1430 B-4 28.00 76.48 10/30 W502 POSTAGE CHARG 1676 6.45 70.03 10/31 FR01 CANTEEN RETUR 0.15- 70.18 11/06 FC02 DRAW-FAC 2 1808 B-4 20.00 50.18 11/28 FR01 CANTEEN RETUR 102016 0.45- 50.63 12/03 W516 LEGAL COPY CH 2065 0.90 49.73 12/03 W536 COPAY CHARGE 2067M11/21 5.00 44.73 12/07 FC02 DRAW-FAC 2 216 B-4 7.10 37.63 12/11*DD30 CASH DEPOSIT 2197ML#107 15.60 53.23 12/18 W513 MISC. CHARGES 2327 0.40 52.83 12/28 FR01 CANTEEN RETUR 102448 0.85- 53.68 ACTIVITY FOR 2002 01/04*DD30 CASH DEPOSIT 2533ML#126 15.60 69.28 01/08 FC02 DRAW-FAC 2 2617 B4 23.00 46.28
* RESTITUTION ACCOUNT ACTIVITY
DATE SENTENCED: 03/30/01 CASE NUMBER: E9912765 COUNTY CODE: SOL FINE AMOUNT: $ 10,000.00
DATE TRANS. DESCRIPTION TRANS. AMT. BALANCE
07/01/2001 BEGINNING BALANCE 10,000.00
REPORT ID: TS3030 REPORT DATE: 01/18/02 PAGE NO: 2
PELICAN BAY STATE PRISON INMATE TRUST ACCOUNT STATEMENT FOR THE PERIOD: JUL. 01, 2001 THRU JAN. 18, 2002
ACCT: K92297 ACCT NAME: BRACEY, CHARLES HENRY ACCT TYPE: I
* RESTITUTION ACCOUNT ACTIVITY
DATE SENTENCED: 03/30/01 CASE NUMBER: E9912765 COUNTY CODE: SCL FINE AMOUNT: $ 10,000.00
DATE TRANS. DESCRIPTION TRANS. AMT. BALANCE 07-16-01 DR30 REST DED-CASH DEPOSIT 2.00- 9,998.00 08/15/01 DR30 REST DED-CASH DEPOSIT 4.00- 9,994.00 09/19/01 DR30 REST DED-CASH DEPOSIT 4.00- 9,990.00 12/11/01 DR30 REST DED-CASH DEPOSIT 4.00- 9,986.00 01/04/02 DR30 REST DED-CASH DEPOSIT 4.00- 9,982.00
* THIS STATEMENT DOES NOT REFLECT THE ADMINISTRATIVE FEE CHARGE THAT * * IS EQUAL TO TEN PERCENT OF THE RESTITUTION AMOUNT COLLECTED. *
TRUST ACCOUNT SUMMARY
BEGINNING TOTAL TOTAL CURRENT HOLDS TRANSACTIONS BALANCE DEPOSITS WITHDRAWALS BALANCE BALANCE TO BE POSTED 0.00 245.38 199.10 46.28 0.00 0.00
CURRENT AVAILABLE BALANCE 43.28
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Dear Sir or Madam:Your complaint has been filed as civil case number C-02-0076 WHA Your complaint is deficient because:
1. ___ You did not pay the appropriate filing fee of S150.00. If you are unable to pay the entire filing fee at this time, you must sign and complete this court's Prisoner's Application in its entirety.
2. "X" The In Forma Pauperis Application you submitted is insufficient because:
_____ You did not use the correct form. You must submit this court's current Prisoner's In Forma Pauperis Application.
_____ Your In Forma Pauperis Application was not completed in its entirety.
_____ You did not sign your In Forma Pauperis Application.
"X" You did not submit a Certificate of Funds in Prisoner's Account completed and signed by an authorized officer at the prison.
_____ You did not attach a copy of your prisoner trust account statement showing transactions for the last six months.
Other
Enclosed you will find this court's current Prisoner's In Forma Pauperis Application, which includes a Certificate of Funds in Prisoner's Account form, and a return envelope for your convenience.
Warning: If you do not respond within THIRTY DAYS from the filing date stamped above, your action will be dismissed and the file closed. If you submit the application, you will automatically be liable for the full filing fee, regardless of your present ability to pay the full amount of the fee.
Sincerely, RICHARD W. WIEKING, Clerk,
By Deputy Clerk