Opinion
ORDER DISMISSING COMPLAINT IN PART
PHILIP S. GUTIERREZ United States District Judge
Plaintiff, a non-prisoner, filed a damages complaint under 42 U.S.C. § 1983 against his public defender, Sarah Ellenberg, and a Los Angeles County deputy sheriff, Juan Navarro. Plaintiff alleges that Navarro violated plaintiff’s federal rights by using excessive force against him while he was in custody and by locking him in his cell for three days. Plaintiff alleges that Ellenberg had a duty to protect him from harm after learning of Navarro’s conduct and failed to do so. Both defendants are sued in their official and individual capacities.
In a civil action in which a plaintiff is proceeding in forma pauperis, the court “shall” dismiss the complaint or any portion thereof at any time if it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2). The complaint fails to state a section 1983 claim against Ellenberg as a matter of law because she was not acting “under color of state law” within the meaning of section 1983 in acting as plaintiff’s public defender. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir.) (en banc), cert. denied, 540 U.S. 814 (2003).
Accordingly, plaintiffs section 1983 claim against Ellenberg is dismissed with prejudice.
IT IS SO ORDERED.