Unpublished Disposition, 937 F.2d 615 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 615 (9th Cir. 1991)

Ronald Lee WILSON, Plaintiff-Appellant,v.Stephen A. GERST, Peter Jarosz, Deputy County Attorney,Kenneth Everett, Public Defender, Mary Lynn Bogle,Public Defender, James Kemper, PublicDefender, Defendants-Appellees.

No. 89-16166.

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1991.* Decided July 1, 1991.

Before SCHROEDER, FLETCHER and LEAVY, Circuit Judges.


MEMORANDUM** 

Ronald Lee Wilson, an Arizona state prisoner, appeals pro se the district court's sua sponte dismissal of his civil rights action as frivolous under 28 U.S.C. § 1915(d). We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and we affirm in part and reverse and remand in part.

In his complaint, Wilson alleged that the public defenders, prosecutor, and judge involved in his trial conspired to (1) exclude blacks from his jury, (2) impeach his testimony by using two prior felony convictions, and (3) improperly enhance his sentence based on the prior offenses.1  He asserted that their conduct was motivated by "ethnic class based animus" in violation of 42 U.S.C. § 1985(3). He also alleged that the public defenders' office was understaffed, which resulted in his being afforded inadequate representation, and that unidentified Maricopa County Supervisors violated his constitutional rights because they imposed a hiring freeze on the public defenders' office and because they recklessly disregarded the understaffing problem. He also alleged that his public defender rendered him ineffective assistance on appeal. As relief for the alleged violations, Wilson sought damages and a new trial.

Frivolous in forma pauperis complaints may be dismissed sua sponte under 28 U.S.C. § 1915(d). Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint is frivolous if it lacks an arguable basis in law or in fact. Id. In civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). If the plaintiff has an arguable claim, he is entitled to issuance and service of process. Jackson, 885 F.2d at 640.

When a state prisoner challenges the fact or duration of his confinement, his exclusive remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 600 (1973). When a prisoner files a civil rights complaint that seeks relief available only by writ of habeas corpus, the district court should construe the complaint to that extent and require exhaustion of state remedies. Young v. Kenny, 907 F.2d 874, 875-76, 878 (9th Cir. 1990), cert. denied, 111 S. Ct. 1090 (1991); Franklin v. Oregon, 662 F.2d 1337, 1347 n. 13 (9th Cir. 1981).

The district court properly determined that the judge and prosecutor were absolutely immune from liability for damages. Imbler v. Pactman, 424 U.S. 409, 427 (1976) (prosecutorial immunity); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (judicial immunity). Furthermore, the public defender representing Wilson on appeal and the public defenders who allegedly rendered him ineffective assistance due to understaffing are private individuals for purposes of section 1983 and cannot be sued for damages. Polk v. Dodson, 454 U.S. 312, 325 (1981).

Moreover, the district court properly dismissed the complaint as to the fictitious defendants John and Jane Doe allegedly employed as county supervisors. The court dismissed the Doe defendants under Local Practice Rule 10(d), which prohibits, " [u]nless otherwise ordered by the Court ... [, the] filing ... [of] any complaint wherein any party is designated and sought to be joined under a fictitious name." As a general rule, the use of Doe defendants to identify a defendant is not favored. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Unknown defendants may be named in certain circumstances, such as when the identity of the alleged defendants is not known prior to the filing of the complaint and may be identified through discovery. Id. Here, however, Wilson alleged only that the unidentified supervisors caused the public defenders to render him ineffective assistance by imposing a hiring freeze and by recklessly disregarding the understaffing problem. This attenuated connection with his claim of ineffective assistance does not amount to a deprivation of a federally secured right cognizable in a section 1983 action.

Nevertheless, to the extent that Wilson alleges that he was denied effective assistance of counsel and a fair trial by improper impeachment and exclusion of blacks from the jury, which are claims cognizable by writ of habeas corpus, we cannot say from the face of his complaint that his claims are wholly frivolous. Accordingly, the district court should have construed the complaint to that extent as a habeas petition, Preiser, 411 U.S. at 600, and ordered service of process on the appropriate defendants. Jackson, 885 F.2d at 640.2  Moreover, to the extent that Wilson alleges that the public defender conspired with state officials to deprive him of his constitutional rights, we cannot say on the face of his complaint that his claims do not have an arguable basis in law or in fact. See Neitzke, 490 U.S. at 325; Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) (private person who conspires with state officials to deprive another of federal rights may be found to act under color of state law); Karim-Panahi, 839 F.2d at 626 (section 1985(3) claim). Thus, Wilson is entitled to issuance and service of process on this claim. Jackson, 885 F.2d at 640.

AFFIRMED IN PART and REVERSED AND REMANDED IN PART.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

At Wilson's trial, the state apparently impeached Wilson's testimony by introducing evidence of two prior convictions, possession of a narcotic drug and the federal crime of misprision of felony in violation of 18 U.S.C. § 4. These convictions also were used to enhance his sentence. On Wilson's petition for review, the Arizona Supreme Court held that the federal offense could not be used to enhance Wilson's sentence under Arizona state law, and remanded for resentencing. State v. Wilson, 152 Ariz. 127, 730 P.2d 836, 839 (1986). Wilson acknowledged in his complaint that eventually he was sentenced properly

 2

To the extent his action is construed as a habeas petition, Wilson must name his custodian as the defendant. 28 U.S.C. § 2242. Accordingly, he should be given the opportunity to amend his complaint to correct this deficiency