United States District Court, D. Nevada
REPORT & RECOMMENDATION
C. W. HOFFMAN, Jr., Magistrate Judge.
This matter is before the Court on Plaintiff's Motion/Application to Proceed In Forma Pauperis (#3), filed January 30, 2014. Plaintiff is incarcerated.
I. In Forma Pauperis Application
Plaintiff has submitted the affidavit required by 28 U.S.C. § 1915(a)(1) and (2) showing an inability to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma pauperis will be granted pursuant to 28 U.S.C. § 1915(a). The court will now screen the complaint pursuant to section 1915(e).
II. Screening the Complaint
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d. 696, 699 (9th Cir. 1988). In addition to the screening requirements of section 1915A, the Prison Litigation Reform Act of 1995 (PLRA) provides that a federal court must dismiss a prisoner's claim, "if the allegation of poverty is untrue" or if the action "is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2).
Courts apply the standard for review under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted when reviewing the adequacy of a complaint or an amended complaint under section 1915(e). If a complaint is dismissed under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d. 1103, 1106 (9th Cir. 1995). Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id., see Papasan v. Allain, 478 U.S. 265, 286 (1986). A reviewing court should "begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 1950 (2009). "While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations." Id. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. "Determining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. Finally, all or part of a complaint filed by a prisoner may be dismissed sua sponte if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
Plaintiff is seeking damages under 42 U.S.C. § 1983 claiming that a privately retained attorney violated his constitutional rights by committing perjury while representing him in another case. Plaintiff does not cite to a specific constitutional provision, but vaguely alleges that the attorney's conduct violated his due process rights. To establish a cognizable claim under section 1983, a plaintiff mus allege two elements: (1) that the defendant violated a right secured by the Constitution and law of the United States, and (2) that the defendant was acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); see also e.g. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). The claims asserted in this matter do not and cannot meet the requirement that an alleged constitutional violation be committed by a defendant acting under color of state law.
The only defendant named by Plaintiff is an attorney who was privately retained to represent him in another matter. A defendant acts under the color of state law if he "exercise[s] power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West, 487 U.S. at 49 (citation omitted). Private parties "generally" cannot act under color of state law for purposes of Section 1983. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir.1991). In certain situations, however, "private" action may be considered to have been committed under color of state law "when there is significant' state involvement in the action." Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir.1983). The Supreme Court has articulated the following four tests for determining when the actions of a private party amount to action under color of state law for purposes of section 1983: (1) the public function test; (2) the joint action test; (3) the state compulsion test; and (4) the governmental nexus test. See e.g. Collins v. Womancare, 878 F.2d 1145, 1148 (9th Cir.1989); Howerton, 708 F.3d at 382-83.
Although the conduct of private actors may meet one of the aforementioned tests for state action, it is well-established that lawyers in private practice generally do not act under color of state law when they represent parties in court proceedings. See Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (holding that the lawyer for the defendant in a personal injury action, who obtained plaintiff's default, was properly dismissed under Rule 12(b)(6) because he was a lawyer in private practice and, thus, not acting under color of state law; conclusory allegations that the lawyer conspired with court clerks and other state officers were insufficient to render the lawyer a state actor); Miranda v. Clark County, Nev., 319 F.3d 465, 468 (9th Cir. 2003) (holding that a public defender is not a state actor within the meaning of section 1983); Briley v. State of California, 564 F.2d 849, 855 (9th Cir. 1977) ("We have repeatedly held that a privatelyretained attorney does not act under color of state for purposes of actions brought under the Civil Rights Act."); Hahn v. Star Bank, 190 F.3d 708, 717 (6th Cir. 1999) ("Attorneys, by virtue of being officers of the court, do not act under color of state law within the meaning of section 1983.").
The only allegation in the complaint is that Defendant, a privately-retained attorney, violated Plaintiff's constitutional right to due process by allegedly committing perjury while representing Defendant in an underlying action. Even assuming the allegation is true, there is nothing in the complaint to support the notion that the privately-retained attorney was acting under color of state law when it occurred. Thus, there is no cause of action under section 1983. Moreover, the Court finds that there is no possibility that Plaintiff could set forth an actionable claim against his prior retained attorney for relief under section 1983. Consequently, the undersigned will recommend that this case be dismissed and the action closed. Morley, 175 ...