Opinion
3:21-cv-05071-RSM-BAT
03-10-2021
JOSHUA G. FRANKLIN Sr., Plaintiff, v. JOHN ACKERMAN, et al., Defendant.
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA Chief United States Magistrate Judge
Plaintiff, a prisoner at the Washington Corrections Center, filed a pro se § 1983 civil rights action alleging that when he was a prisoner at the Clark County Jail, Jail staff violated his rights by mistreating a cracked tooth and thereby being indifferent to his medical needs. Dkt. 4. He also alleges his Clark County Public Defenders Neil Anderson and Michelle Michaelex violated his rights by failing to file a motion allowing him to "attend the Clark County Law Library." Id. at 18. He further alleges Clark County Deputy District Attorney Jeannie Bryant violated his rights by denying plaintiff's request or motion to attend the law library. Id. at 19.
On February 4, 2021, the Court issued an order directing plaintiff to show cause, by February 17, 2021, why the claims against the public defenders and assistant prosecuting attorney should not be dismissed. Dkt. 5. On February 17, 2021 plaintiff filed a motion for extension. The Court granted the motion and ordered plaintiff to show cause no later than March 8, 2021 why the above defendants should not be dismissed. The Court notified plaintiff that the failure to timely respond would result in a recommendation that the above defendants be dismissed. Plaintiff signed a response on March 9, 2021 and filed it that day. Dkt. 8. Although late, the Court has considered the response.
For the reasons below, the Court recommends the defendant public defenders and assistant prosecuting attorney be DISMISSED with prejudice from the complaint and that if this recommendation is adopted, the complaint be served on the remaining defendants.
DISCUSSION
The Court is required to review a prisoner's complaint to determine whether it alleges a claim for relief. Under 28 U.S.C. § 1915(e)(2)(B) the Court must dismiss a case if it finds the action is frivolous or if it fails to state a claim on which relief may be granted. A complaint is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Here, plaintiff alleges in his complaint that his public defenders failed to file a motion, which is a lawyer function. However, public defenders cannot be sued in a § 1983 civil rights action for failing to perform their lawyer functions. Polk County v. Dodson, 454 U.S. 312, 32425 (1981); Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir. 2002). Plaintiff also alleges the assistant district attorney denied his motion to "attend" the law library. Responding to motions filed by criminal defendants is a lawyer function and prosecutors are absolutely immune from damages under § 1983 when acting within the scope of their duties in presenting the state's case. See Imbler v. Pachtman, 424 U.S. 409, 410 (1976) (applying absolute immunity to bar a section 1983 action alleging that a prosecutor knowingly used false testimony at trial).
In his response to the show cause order, plaintiff contends the Clark County Jail requires him to obtain permission from the Clark County Superior Court to "attend the Clark County Jail Law Library." Dkt. 8 at 1. Plaintiff states he asked the Clark County Superior Court for permission but received no response. After receiving no response, he asked his public defender for assistance to attend the jail law library so that plaintiff could perform legal research in support of a civil suit against the jail. Id. Plaintiff contends that since "he was requesting approval from the courts to attend law library for a civil matter. Therefore the defendant Neil Anderson is not entitled to absolute immunity as he was not acting on behalf of plaintiff in regards to his criminal matter but on a civil matter." Id. at 2. Plaintiff similarly argues deputy prosecutor Jeannie Bryant is not immune because although he made her aware he was researching a violation of his civil rights, she rejected his request to attend the law library even though his request "had no involvement in the plaintiff's criminal matter." Id. at 3.
Plaintiff's claim the Court should not dismiss Mr. Anderson and Ms. Bryant is baseless. These lawyers may not be sued under § 1983 for failing to perform a lawyer's functions. But this is exactly what plaintiff's complaint alleges. Plaintiff alleges Mr. Anderson failed to file motions to allow his library access and that Ms. Bryant opposed plaintiff's requests or motions for such access. That plaintiff's motive to attend the law library was not related to his criminal case does not alter the fact that both defendants are accused of failing to perform acts traditionally performed by lawyers: filing motions and opposing motions. As the Supreme Court has stated, a public defender does not act under color of state law "when performing a lawyer's traditional functions as counsel." Polk County v. Dodson, 454 U.S. at 324-25. Plaintiff's case is similar to the claim raised and rejected in Atterbury v. Weiner, 2006 WL 3201073, at * 3 (E.D. Cal., Nov. 6, 2006) (Report and Recommendation, adopted in Attenbury v. Weiner, 2006 WL 3462223 (Nov. 30, 2006). There, plaintiff alleged the defendant public defender ignored plaintiff's complaints concerning jail conditions and that the court should "restrain" the public defender and "hold him liable." Id. The Court rejected the claim as frivolous. The Court recommends that plaintiff's claims against his public defenders similarly be dismissed with prejudice.
The Court should also dismiss the claim against deputy prosecuting attorney Jeannie Bryant. Ms. Bryant enjoys prosecutorial immunity because she was acting pursuant to her official role as advocate for the State performing functions “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Ms. Bryant would be subject to suit only if her alleged actions were wholly unrelated to or outside of their official duties. Bly-Magee v. California, 236 F.3d 1014, 1016 (9th Cir.2001). Here, plaintiff alleges that he sought court permission to attend the Clark County Jail law library. Ms. Bryant as a Clark County Deputy Prosecuting Attorney, and legal representative of the county, was thus acting within her official duties in opposing or rejecting plaintiff's request. That his request was based on the desire to research a civil suit does not alter the fact that Ms. Bryant was still acting within her duties as a Clark County Prosecuting Attorney. See e.g. Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir.1999) (“Whether the government attorney is representing the plaintiff or the defendant, or is conducting a civil trial, criminal prosecution or agency hearing, absolute immunity is ‘necessary to assure that . . . advocates . . . can perform their respective functions without harassment or intimidation.”).
The Court accordingly recommends the public defenders, Neil Anderson and Michelle Michaelex, and assistant prosecuting attorney, Jeannie Bryant, and the respective claims against them be dismissed with prejudice. If this recommendation is adopted, the Court further recommends the complaint be served on the remaining defendants and the case be referred back to the undersigned United States Magistrate Judge.
OBJECTIONS AND APPEAL
This Report and Recommendation is not an appealable order. Therefore, a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the assigned District Judge enters a judgment in the case.
Objections, limited to 5 pages, may be filed no later than March 24, 2021. The Clerk shall note the matter for March 26, 2021, as ready for the District Judge's consideration. The failure to timely object may affect the right to appeal.