(PC) Thompson v. Miller et al, No. 2:2009cv01918 - Document 12 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 11/18/09 RECOMMENDING that this action be dismissed, w/out leave to amend, for pltf's failure to state a claim upon which relief can be granted. Referred to Judge Morrison C. England, Jr.; Objections to F&R due w/in 20 days. (Yin, K)

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(PC) Thompson v. Miller et al Doc. 12 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 TIMOTHY THOMPSON, 9 10 11 12 13 14 15 16 No. CIV S-09-1918-MCE-CMK-P Plaintiff, vs. FINDINGS AND RECOMMENDATIONS RUSSELL W. MILLER, JR, et al., Defendants. / Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1). The court is required to screen complaints brought by prisoners seeking relief 17 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 18 § 1915A(a). The court is also required to screen complaints brought by litigants who have been 19 granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). The court must dismiss 20 a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon 21 which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from 22 such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure 23 require that complaints contain a “short and plain statement of the claim showing that the pleader 24 is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, 25 concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to 26 Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice 1 Dockets.Justia.com 1 of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 2 1129 (9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity 3 overt acts by specific defendants which support the claims, vague and conclusory allegations fail 4 to satisfy this standard. Additionally, it is impossible for the court to conduct the screening 5 required by law when the allegations are vague and conclusory. 6 7 I. PLAINTIFF’S ALLEGATIONS Plaintiff brings this action against his retained defense attorney and several of his 8 attorney’s staff. He claims his attorney failed to obtain the results he promised related to his state 9 criminal proceedings, and that his attorney and staff lied to him and his family. 10 11 II. DISCUSSION Section 1983 provides that “[e]very person who, under color of any statute, 12 ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 13 subjects, or causes to be subjected, any citizen of the United States or other person within the 14 jurisdiction thereof to the deprivation of any rights, privileges, or immunity secured by the 15 Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or 16 other proper proceeding for redress . . . .” 42 U.S.C. § 1983. “Traditionally, the requirements for 17 relief under [§] 1983 have been articulated as (1) a violation of rights protected by the 18 Constitution or created by federal statute, (2) proximately caused (3) by conduct of a ‘person’ (4) 19 acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). 20 Generally, plaintiffs are required to “plead that (1) the defendants acting under color of state law 21 (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” Gibson v. United 22 States, 781 F.2d 1334, 1338 (9th Cir. 1986); see also WMX Techs., Inc. v. Miller, 197 F.3d 367, 23 372 (9th Cir. 1999) (en banc). Public defenders, acting as an advocate for their client, are not 24 acting under color of state law for § 1983 purposes. See Georgia v. McCollum, 505 U.S. 42, 53 25 (1992); Polk County v. Dodson, 454 U.S. 312, 320-25 (1981). 26 Plaintiff’s complaint names only his trial attorney, Russell W. Miller, Jr., and 2 1 three of his defense attorney’s staff. It appears from the complaint that defendant Miller was 2 retained by Plaintiff and his family to represented Plaintiff in a criminal matter. Defendant 3 Miller, and the others named as defendants, were acting as advocates for Plaintiff. There is 4 nothing in the complaint which indicate any of the defendants were state actors, acting under 5 color of state law. Plaintiff therefore cannot state a claim under § 1983 against them. 6 7 The undersigned finds that Plaintiff fails to state a claim upon which relief can be granted because the only named defendants were not acting under color of state law. 8 9 III. CONCLUSION Based on the foregoing, the undersigned recommends that this action be dismissed 10 for Plaintiff’s failure to state a claim upon which relief can be granted. Because it does not 11 appear possible that the deficiencies identified herein can be cured by amending the complaint, 12 plaintiff is not entitled to leave to amend prior to dismissal of the entire action. See Lopez v. 13 Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court. The document should be captioned “Objections to Magistrate Judge's 18 Findings and Recommendations.” Failure to file objections within the specified time may waive 19 the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 23 DATED: November 18, 2009 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 24 25 26 3

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