Opinion
No. C 00-4449 SI (pr)
February 20, 2001
JUDGMENT
Pursuant to the Order of Dismissal signed today, this action is dismissed.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL INTRODUCTION
Farhad Kashani, a California inmate at the Ironwood State Prison, has filed a pro se civil rights complaint in which he alleges that he received inadequate assistance from attorney Sanford Svetcov, who represented him on appeal from his federal criminal conviction. Kashani seeks damages and the disbarment of Svetcov. His complaint is now before the court for review pursuant to 28 U.S.C. § 1915A.
DISCUSSION
A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which 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 id. at 1915A(b)(1), (2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Kashani's complaint is written on the court's form civil rights complaint under 42 U.S.C. § 1983. The complaint is under the authority of Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), rather than Section 1983, because Kashani claims he suffered a wrong at the hands of an alleged federal actor, rather than an alleged state actor. A Bivens action is the appropriate mechanism to sue an alleged federal actor who has violated one's civil rights.
To state a private cause of action under Bivens plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the violation was committed by a federal actor.See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (§ 1983 andBivens actions are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens).
Kashani's complaint is legally meritless for two reasons. First, he cannot sue a lawyer for allegedly ineffective assistance. A private attorney performing a lawyer's traditional functions as counsel to a defendant in criminal proceedings does not act under color of state law, as a person must to be liable under Section 1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding); Franklin. v. Oregon, 662 F.2d 1337, 1345 (9th Cir. 1981). This rule applies in a Bivens action as well as a Section 1983 action. Although there is an exception to this rule which permits liability for an attorney jointly acting with state officials in a conspiracy and acting "under color of state law," see Dennis v. Sparks, 449 U.S. 24, 29 (1980), Kashani has not alleged facts showing such a conspiracy between the defendant and any government officials. The court will not grant leave to amend to permit Kashani to attempt to allege such a conspiracy because such allegations could not save the complaint as it is legally meritless for the independent reason that it is barred by the rule in Heck v. Humphrey.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), announced the rule that a prisoner may not bring an action for damages under Section 1983 for a wrongful conviction unless that conviction already has been determined to be wrongful. A conviction may be determined to be wrongful by, for example, being reversed on appeal or being set aside when a state or federal court issues a writ of habeas corpus. See id. The Heck rule also prevents an inmate from bringing an action that — even if it does not directly challenge the conviction — would imply that his conviction was invalid. The rationale and conclusion of Heck apply inBivens actions. See Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996). The practical importance of the Heck rule is that the conviction must be attacked successfully before the Section 1983 or Bivens action for damages may be filed. The nub of Kashani's present complaint is that his conviction would not still be in place but for the fact that he received inadequate representation by defendant on appeal. Kashani contends that Svetcov pursued a losing argument and refused to pursue other, meritorious, arguments on appeal. A decision in this case favorable to Kashani would imply that his conviction was invalid. Thus, even if Kashani could plead some conspiracy to avoid the rule that precludes an action against one's criminal defense attorney, his damages claim could not proceed because it is barred by Heck.
Finally, the fact that Kashani seeks the disbarment of Svetcov as well as damages from him does not require that this case go forward because the court is without power to order the requested relief. That is, this court cannot order the disbarment of an attorney. The court will not retain jurisdiction over an action in which it cannot grant the requested relief.
CONCLUSION
For the foregoing reasons, the complaint is DISMISSED without leave to amend. The clerk shall close the file.
IT IS SO ORDERED.
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
Plaintiff's application to proceed in forma pauperis is GRANTED. The total filing fee due is $150.00. The initial partial filing fee due for the plaintiff at this time is $0.00 (zero dollars), due to the apparent lack of funds in plaintiff's trust account at this time. The clerk shall send a copy of this order and the attached instructions to the plaintiff, the prison's trust account office, and the court's financial office.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA INSTRUCTIONS FOR PAYMENT OF PRISONER'S FILING FEE
The prisoner shown as the plaintiff or petitioner on the attached order has filed a civil action in forma pauperis in this court and owes to the court a filing fee. Pursuant to 28 U.S.C. § 1915, the fee is to be paid as follows:
The initial partial filing fee listed on the attached order should be deducted by the prison trust account office from the prisoner's trust account and forwarded to the clerk of the court as the first installment payment on the filing fee. This amount is twenty percent of the greater of(a) the average monthly deposits to the prisoner's account for the 6-month period immediately preceding the filing of the complaint/petition or (b) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint/petition.
Thereafter, on a monthly basis, 20 percent of the preceding month's income credited to the prisoner's trust account should be deducted and forwarded to the court each time the amount in the account exceeds ten dollars ($10.00). The prison trust account office should continue to do this until the filing fee has been paid in full.
If the prisoner does not have sufficient funds in his/her account to pay the initial partial filing fee, the prison trust account office should forward the available funds, and carry the balance forward each month until the amount is fully paid.
If the prisoner has filed more than one complaint, (s)he is required to pay a filing fee for each case. The trust account office should make the monthly calculations and payments for each case in which it receives an order granting in forma pauperis and these instructions.
The prisoner's name and case number must be noted on each remittance. The initial partial filing fee is due within thirty days of the date of the attached order. Checks should be made payable to Clerk, U.S. District Court and sent to Prisoner Accounts Receivable, U.S. District Court, 450 Golden Gate Avenue, Box 36060, San Francisco, CA 94102.