Scott v. Beles & Beles Law Firm

ORDER OF DISMISSAL OF CASE WITH PREJUDICE. Signed by Magistrate Judge Donna M. Ryu on 6/9/15.

Northern District of California, cand-4:2015-cv-01240

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 EDJUAN SCOTT, 4 Case No. 15-cv-01240-DMR (PR) Plaintiff, 5 ORDER OF DISMISSAL WITH v. PREJUDICE 6 BELES & BELES LAW FIRM, 7 Defendant. 8 9 Plaintiff Edjuan Scott, a state prisoner incarcerated at California State Prison - Sacramento, 10 filed the instant civil rights action under 42 U.S.C. § 1983. Plaintiff initially named Robert Beles, 11 Esq. and Beles & Beles Law Firm (a criminal defense firm) as Defendants based on their alleged 12 "breach of contract" after he had retained the firm to represent him in his "criminal superior court Northern District of California United States District Court 13 [case] no. S1002989 and numerous pending civil suits." Dkt. 1 at 5. Thereafter, Plaintiff filed an 14 amended complaint, which is the operative complaint in this action, naming only Beles & Beles 15 Law Firm. Dkt. 7 at 1. Plaintiff's single sentence under his Statement of Claim section states: 16 "There have been 'ineffective [assistance] of counseling' and 'breach of contract.'" Id. at 3. He 17 seeks monetary damages and a refund of the retainer fee. Id. 18 Plaintiff has consented to magistrate judge jurisdiction, and this matter has been assigned 19 to the undersigned Magistrate Judge. He has also filed a motion for leave to proceed in forma 20 pauperis ("IFP"), which will be granted in a separate written Order. 21 Venue is proper in this court because the only named Defendant, a law firm, is based in 22 Oakland, which is located within the Northern District of California. See 28 U.S.C. § 1391. 23 STANDARD OF REVIEW 24 A federal court must engage in a preliminary screening of any case in which a prisoner 25 seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 26 U.S.C. § 1915A(a). The court must identify any cognizable claims, and dismiss any claims which 27 are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary 28 relief from a defendant who is immune from such relief. See 28 U.S.C. §1915A(b)(1),(2). 1 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 2 right secured by the Constitution or laws of the United States was violated and (2) that the 3 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 4 U.S. 42, 48 (1988). 5 DISCUSSION 6 Plaintiff's claims against Beles & Beles Law Firm (or any claims against his criminal 7 defense attorneys) are DISMISSED because a defense attorney does not act under color of state 8 law when performing an attorney's traditional functions. Polk County v. Dobson, 454 U.S. 312, 9 318-19 (1981). It does not matter that Plaintiff alleges that the defense attorney failed to exercise 10 independent judgment; it is the nature and context of the function performed (or omitted) by that 11 attorney that is determinative under Polk County. Miranda v. Clark County, Nevada, 319 F.3d 12 465, 468 (9th Cir. 2003) (en banc). Therefore, Plaintiff fails to state a cognizable claim against Northern District of California United States District Court 13 Defendant under section 1983. In addition, any claim involving breach of contract in civil suits, 14 essentially what Plaintiff alleges here against Defendant, is not cognizable under section 1983 as a 15 civil rights claim because it is not a claim for violation of a federal right. Because amendment 16 would be futile, this action is DISMISSED with prejudice. 17 CONCLUSION 18 For the foregoing reasons, the court orders as follows: 19 The action is DISMISSED with prejudice and without leave to amend for failure to state a 20 cognizable claim under section 1983. Further, this court CERTIFIES that any IFP appeal from 21 this Order would not be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge 22 v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) 23 (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous). 24 The Clerk of the Court shall enter judgment, terminate all pending motions, and close the 25 file. 26 IT IS SO ORDERED. 27 Dated: June 9, 2015 ______________________________________ DONNA M. RYU 28 United States Magistrate Judge 2