(PC) Brooks v. Lee et al, No. 2:2010cv02246 - Document 9 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/26/10 RECOMMENDING that the 1 Prisoner Civil Rights Complaint filed by Anthony Brooks be dismissed for plf's failure to state a claim upon which relief can be granted. Objections to these F&Rs due by w/i 14 days; referred to Judge Morrison C. England, Jr. (Benson, A.)

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(PC) Brooks v. Lee et al Doc. 9 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY BROOKS, 12 Plaintiff, 13 14 15 16 17 18 19 No. CIV S-10-2246-MCE-CMK-P vs. FINDINGS AND RECOMMENDATIONS KENNETH JAMES LEE, 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 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “ short and plain statement 25 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means 26 that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1 Dockets.Justia.com 1 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 2 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 3 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 4 with at least some degree of particularity overt acts by specific defendants which support the 5 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 6 impossible for the court to conduct the screening required by law when the allegations are vague 7 and conclusory. 8 9 I. PLAINTIFF’S ALLEGATIONS Plaintiff alleges his public defender mislead him in signing a plea agreement due 10 to his learning disability and illiteracy. He has named both the public defender and the Vallejo 11 Public Defender’s office as defendants to this action. 12 13 II. DISCUSSION Section 1983 provides that “[e]very person who, under color of any statute, 14 ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 15 subjects, or causes to be subjected, any citizen of the United States or other person within the 16 jurisdiction thereof to the deprivation of any rights, privileges, or immunity secured by the 17 Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or 18 other proper proceeding for redress . . . .” 42 U.S.C. § 1983. “Traditionally, the requirements for 19 relief under [§] 1983 have been articulated as (1) a violation of rights protected by the 20 Constitution or created by federal statute, (2) proximately caused (3) by conduct of a ‘person’ (4) 21 acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). 22 Generally, plaintiffs are required to “plead that (1) the defendants acting under color of state law 23 (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” Gibson v. United 24 States, 781 F.2d 1334, 1338 (9th Cir. 1986); see also WMX Techs., Inc. v. Miller, 197 F.3d 367, 25 372 (9th Cir. 1999) (en banc). Public defenders, acting as an advocate for their client, are not 26 acting under color of state law for § 1983 purposes. See Georgia v. McCollum, 505 U.S. 42, 53 2 1 (1992); Polk County v. Dodson, 454 U.S. 312, 320-25 (1981). 2 Plaintiff’s complaint names only his criminal defense attorney, Kenneth James 3 Lee, and the Vallejo Public Defender’s office. The defendants were presumably appointed to 4 represent Plaintiff in his state criminal proceedings. However inadequate that representation 5 was, they were acting as advocates for Plaintiff. There is nothing in the complaint to indicate 6 that any of the defendants were acting in any other capacity. Plaintiff therefore cannot state a 7 claim under § 1983 against them. 8 9 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. 10 11 III. CONCLUSION Because it does not appear possible that the deficiencies identified herein can be 12 cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of 13 the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 14 15 Based on the foregoing, the undersigned recommends that this action be dismissed for Plaintiff’s failure to state a claim upon which relief can be granted. 16 These findings and recommendations are submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court. Responses to objections shall be filed within 14 days after service of 20 objections. Failure to file objections within the specified time may waive the right to appeal. 21 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 24 25 DATED: October 26, 2010 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 26 3

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