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Sanders v. Barrer

United States District Court, W.D. Washington, Tacoma Division

November 13, 2014

DANIEL L SANDERS, Plaintiff,
v.
JEFFERY BARRER, NEIL ANDERSON, CHRIS LAHON, Defendant

NOTED FOR: DECEMBER 5, 2014.

Daniel L Sanders, Plaintiff, Pro se, VANCOUVER, WA.

REPORT AND RECOMMENDATION

J. Richard Creatura, United States Magistrate Judge.

The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR1, MJR3 and MJR4.

The Court recommends dismissal of this action prior to service because plaintiff cannot sue his defense attorneys in a civil rights action. Defense counsel -- even appointed counsel -- does not act under color of state law.

Plaintiff's complaint is before the Court for initial screening pursuant to 28 U.S.C. § 1915A. The statute states:

(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.--On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
(c) Definition.--As used in this section, the term " prisoner" means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.

28 U.S.C. § 1915A.

Plaintiff is incarcerated at the Clark County Jail and the screening provisions of the statute apply to this action (Dkt. 1). Plaintiff alleges that his defense counsel, Jeffery Barrer, miscalculated his offender score as being seven instead of three and that as a result plaintiff served nine months in the Clark County Jail when he should have served only five months (Dkt. 1-1 proposed complaint). Plaintiff mentions two other defense attorneys -- Ann Christianson and Chris Lahon -- in the complaint, but it is not clear if they are also defendants, or rather defense attorneys who agreed with plaintiff that his offender score should have been three and not seven (Dkt. 1-1).

To state a claim under 42 U.S.C. § 1983, at least three elements must be met: (1) defendant must be a person acting under the color of state law; and (2) the person's conduct must have deprived plaintiff of rights, privileges or immunities secured by the constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420, (1981) (overruled in part on other grounds); Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 88 L.Ed.2d 662, (1986); and (3) causation See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286-87, 97 S.Ct. 568, 50 L.Ed.2d 471, (1977); Flores v. Pierce, 617 F.2d 1386, 1390-91 (9th Cir. 1980), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96, (1980). When a plaintiff fails to allege or establish one of the three elements, his complaint must be dismissed.

A defense attorney, even if they are assigned counsel, does not act under color of state law. See Polk County v. Dodson, 454 U.S. 312, 317-18, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). Because plaintiff cannot sue his defense counsel in a civil rights action, this action fails to state a claim and it is subject to dismissal on screening for failure to state a claim. Accordingly, the Court recommends dismissal of this action with the dismissal counting as a strike for purposes of 28 U.S.C. § 1915(g).

Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), plaintiff shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the clerk is directed to set the matter for consideration on December 5, 2014, as noted in the caption.


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