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Staten v. Kellemen

United States District Court, W.D. Washington, Seattle

May 3, 2018

GEORGE MICHAEL STATEN, Plaintiff,
v.
JOSHUA R. KELLEMEN, et al., Defendants.

          REPORT AND RECOMMENDATION

          Mary Alice Theiler United States Magistrate Judge.

         I. INTRODUCTION

         Plaintiff, a county pretrial detainee, is proceeding pro se and in forma pauperis in this 42 U.S.C. § 1983 civil rights action. He brings claims against his defense attorney, the prosecuting attorney, and two state court judges related to his pending state criminal case. (Dkt. 4.) Specifically, he alleges that his criminal defense attorney has been unethical and ineffective, has a conflict of interest, fails to communicate, and refuses his requests. (Id. at 3.) He also alleges that the prosecutor requested that he be fingerprinted even though his fingerprints were taken when he was booked, and that the state court judge prejudiced him by denying a motion. (Id.)

         Upon screening, the Court determined that plaintiff failed to state a claim because his defense attorney did not act under color of law, as required for a § 1983 claim, and because the prosecutor and state court judges are protected by absolute immunity. (Dkt. 5.) The Court ordered plaintiff to show cause why the case should not be dismissed. (Id.) Plaintiff filed a response (Dkt. 6), but, for the reasons discussed below, he does not cure the deficiencies identified by the Court. Accordingly, the Court recommends that plaintiff's complaint and this action be DISMISSED without leave to amend. His federal claims should be dismissed with prejudice, and any state-law claims should be dismissed without prejudice. In addition, the Court recommends that the dismissal count as a STRIKE under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g).

         II. DISCUSSION

         A. Screening standard

         Once a complaint is filed in forma pauperis, the Court must dismiss it prior to service if it “fails to state a claim on which relief can be granted.” 28 U.S.C. § 1915(e)(2)(b)(ii). The complaint may be dismissed if it lacks a cognizable legal theory or states insufficient facts to support a cognizable legal theory. Zixiang v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013).

         The Court holds pro se plaintiffs to less stringent pleading standards than represented plaintiffs and liberally construes a pro se complaint in the light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Nevertheless, § 1915(e) “not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.” Lopez v. Smith, 203 F.3d 1122, 1229 (9th Cir. 2000) (en banc). When dismissing a complaint under § 1915(e), the Court gives pro se plaintiffs leave to amend unless “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         B. Section 1983 standard

         To sustain a § 1983 civil rights claim, plaintiff must show (1) he suffered a violation of rights protected by the Constitution or created by federal statute, and (2) the violation was proximately caused by a person acting under color of state or federal law. West v. Atkins, 487 U.S. 42, 48 (1988); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To satisfy the second prong, plaintiff must allege facts showing how individually named defendants caused or personally participated in causing the harm alleged in the complaint. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981).

         C. Plaintiff cannot bring a § 1983 claim against his criminal defense attorney

         The Court previously informed plaintiff that criminal defense attorneys do not act under color of state or federal law, and therefore they cannot be sued under § 1983. See Polk Cnty. v. Dodson, 454 U.S. 312, 324-25 (1981); Miranda v. Clark Cnty., Nev., 319 F.3d 465, 468 (9th Cir. 2003). In plaintiff's response to the Court's Order to Show Cause, he reiterated his previous factual allegations and also claims that his defense attorney is liable for legal malpractice. (Dkt. 6 at 4.) Malpractice is a state-law claim, not a federal claim.

         Federal courts have supplemental jurisdiction to consider state-law claims when they are “so related” to the federal claims that they “form part of the same case or controversy[.]” 28 U.S.C. § 1367(a). The exercise of supplemental jurisdiction is designed to promote “judicial economy, convenience, fairness, and comity[.]” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). However, when all federal claims have been dismissed, the interests promoted by supplemental jurisdiction are no longer present, and a court may decline to exercise jurisdiction over state-law claims. 28 U.S.C. § 1367(c); Carnegie-Mellon, 484 U.S. at 350 n.7 (“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims.”). Because plaintiff fails to present any viable federal claims, the Court should decline to exercise jurisdiction over any state-law claims, which should be dismissed without prejudice.

         D. The prosecutor and state court judges are immune from ...


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