Opinion
3:22-cv-00352-ART-CSD
08-31-2022
RODERICK SKINNER, Plaintiff v. EDWARD T. REED, ESQ, Defendant
ORDER
CRAIG S. DENNEY, UNITED STATES MAGISTRATE JUDGE
Plaintiff is an inmate within the Nevada Department of Corrections (NDOC), housed at the Northern Nevada Correctional Center (NNCC). He filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against Edward T. Reed at the Public Defender's Office. (ECF No. 1-1.) Plaintiff alleges that Reed represented him as appointed counsel on his post-conviction petition for writ of habeas corpus and was deficient in that representation.
The Local Rules of Practice for the District of Nevada provide: “Any person who is unable to prepay the fees in a civil case may apply to the court for authority to proceed in forma pauperis (IFP). The application must be made on the form provided by the court and must include a financial affidavit disclosing the applicant's income, assets, and liabilities.” LSR 1-1. When a prisoner seeks to proceed without prepaying the filing fee, in addition to filing the affidavit, the prisoner is required to submit a certified copy of the trust fund account statement (or institutional equivalent) for the six-month period immediately preceding the filing of the complaint. The statement must be obtained from the appropriate official at the prison or detention facility where the prisoner is or was confined. 28 U.S.C. § 1915(a)(2).
When a prisoner brings a civil action IFP, the prisoner is still required to pay the full amount of the filing fee. The court is required to assess, and when funds exist, collect an initial partial payment of 20 percent of the greater of: (A) the average monthly deposits in the prisoner's account or (B) the average monthly balance in the prisoner's account for the sixmonth period immediately preceding the filing of the complaint. Thereafter, whenever the prisoner's account exceeds $10, the prisoner must make monthly payments of 20 percent of the preceding month's income credited to the prisoners account until the filing fees are paid. The funds are to be forwarded by the agency having custody of the prisoner. 28 U.S.C. § 1915(b)(1), (2).
The regular filing fee is $402, consisting of the $350 filing fee and a $52 administrative fee. If an inmate does not qualify for IFP status, he must pay the full $402 filing fee. If the inmate qualifies for IFP status, the $52 administrative fee is waived, and the inmate will only pay the $350 filing fee over time.
Plaintiff has not submitted the IFP application or the required financial certificate. Nor has he paid the filing fee.
The Clerk shall SEND Plaintiff a copy of the instructions and application to proceed IFP for an inmate. Plaintiff has 30 days from the date of this Order to either file his completed IFP application and financial certificate or pay the full $402 filing fee.
Once Plaintiff has filed his completed IFP application and financial certificate or paid the filing fee, the court will screen the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) or 28 U.S.C. § 1915A, or both. Both require dismissal of a complaint, or any portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. If the complaint is dismissed on screening, there will be no refund of the filing fee, and an inmate proceeding IFP is still required to pay the $350 filing fee over time.
The court has undertaken a preliminary review of Plaintiff's complaint and Plaintiff only names his public defender as a defendant.
42 U.S.C. § 1983 provides a mechanism for the private enforcement of substantive rights conferred by the Constitution and federal statutes. Section 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (internal quotation marks and citation omitted). To state a claim under section 1983, a plaintiff must allege: (1) his or her civil rights were violated, (2) by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48-49 (1988).
The public defender when acting in role of advocate is not a person acting under color of state law for purposes of section 1983. See Georgia v. McCollum, 505 U.S. 42, 53 (1992); Polk County v. Dodson, 454 U.S. 312, 320-25 (1981); Jackson v. Brown, 513 F.3d 1057, 1079 (9thCir. 2008); Szijarto v. Legeman, 466 F.2d 864, 864 (9th Cir. 1972) (per curiam) (claim of ineffective assistance of a retained trial attorney was not a cognizable claim under section 1983 because "an attorney, whether retained or appointed, does not act 'under color of state law.'"). Therefore, it is likely that when the complaint is screened it will be dismissed, and Plaintiff will not be refunded his filing fee. As such, Plaintiff may also advise the court within 30 days that he wishes to voluntarily dismiss this action.
If Plaintiff fails to timely file a completed IFP application and financial certificate or pay the filing fee, this court will recommend dismissal of this action without prejudice.
IT IS SO ORDERED.