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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MELINDA K. THOMAS, Case No. 5:20-cv-00402-AB (SHK) 12 Plaintiff, 13 v. ORDER DISMISSING COMPLAINT 14 WITHOUT LEAVE TO AMEND JENNIFER ROTH, et al., 15 Defendants. 16 17 18 On January 21, 2020, Plaintiff Melinda K. Thomas (“Plaintiff”), a prisoner 19 incarcerated at the California Institution for Women in Chino-Corona, California, 20 proceeding pro se, filed a civil rights complaint (“Complaint” or “Compl.”) under 21 42 U.S.C. § 1983 (“§ 1983”), against her appointed criminal defense attorney 22 Paraq Shah and “district attorney” Jennifer Roth (collectively “Defendants”), in 23 the United States District Court for the Southern District of California. Electronic 24 Case Filing Number (“ECF No.”) 1, Compl.; ECF No. 3, Mot. to Proceed In 25 Forma Pauperis. The matter was then transferred to this Court. For the reasons 26 below, the Court DISMISSES Plaintiff’s Complaint, without leave to amend, and 27 with prejudice. 1 I. BACKGROUND 2 A. Current Complaint 3 In the Complaint, Plaintiff claims that Defendants violated Plaintiff’s rights 4 while performing their duties during the course of her criminal proceeding before 5 the Superior Court, such as exchanging information in her criminal file, and 6 remanding her into custody. ECF No. 1, Compl. at 2. Specifically, with respect to 7 the prosecutor, “district attorney” Roth, Plaintiff claims that “she illegally 8 perjured evidence and submitted it to the jury.” Id. With respect to her appointed 9 counsel, Shah, Plaintiff claims that Shah violated the attorney-client privilege by 10 giving “copies of my entire defen[s]e case file to the DA.” Id. 11 In support of these allegations, Plaintiff claims that Roth “knowingly and 12 flagrantly changed multiple words and phrases that she, J. Roth, then passed out to 13 each and every juror.” Id. at 3. Plaintiff also claims that Roth tampered with the 14 documents, which were provided to the jury to secure a conviction, “abused her 15 power[,] and broke her oath of office.” Id. As a result, Plaintiff states that Roth 16 “selfishly took me away from my children, my job, my house[,] all to illegally obtain 17 [her] conviction.” Id. As a result, Plaintiff alleges a claim of malicious prosecution 18 and that her right to a fair impartial jury trial was violated. Id. at 3-4. 19 With respect to Shah, who does not appear to have been Plaintiff’s defense 20 counsel at trial, Plaintiff states that she was denied the “right to effective assistance 21 of coun[sel].” Id. at 5. Specifically, Plaintiff claims that Shah gave the prosecutor 22 and judge in the matter “private confidential emails that [Plaintiff] sent to him and 23 . . . also gave copies of [Plaintiff’s] entire defense case file.” Id. Plaintiff also 24 attached transcripts in support of these claims, which appear to show that 25 Plaintiff’s trial counsel raised the issue of Shah having provided materials that may 26 have been protected by the attorney-client privilege to the prosecutors. Id. at 13-16. 27 Finally, Plaintiff claims that she has not “filed other lawsuits in state or 1 B. Previously Filed Complaint And Dismissal With Prejudice 2 On October 16, 2018, in Thomas v. Shah, et al., Case No. 5:18-cv-02193 3 (C.D. Cal. 2018) (“First Case”), Plaintiff filed a § 1983 action against criminal 4 defense attorneys Parag1 Shah and Brandon Wood; Judge Tony Raphael and Judge 5 Hutson of the Victorville Superior Court; and district attorney Jennifer Roth 6 (collectively “Defendants”). First Case, ECF No. 1, Compl. In the First Case, 7 Plaintiff sought relief, in what appears to be proceedings in the same criminal case, 8 because Shah, and another defense attorney, Brandon Wood, “[b]roke attorney- 9 client confidentiality by giving copies of [Plaintiff’s] defen[se] file and private 10 emails to Judge Hutson and D.A. Jennifer Roth.” Id. at 3. Plaintiff also named 11 Judges Raphael and Hutson for violating her rights by denying her bond, raising her 12 bail, and having her remanded because Plaintiff came to court 10 minutes late for 13 trial. Id. at 3-4. Finally, Plaintiff alleged that Roth was liable because Roth 14 accepted the materials from Shah and indicated that Roth intended to use the 15 materials during the course of the trial. Id. at 4. 16 This Court issued an order dismissing the action without leave to amend and 17 with prejudice because absolute immunity protected the Superior Court Judges and 18 the prosecutor’s actions, and the criminal defense attorneys were not state actors. 19 First Case, ECF No. 5, Order Dismissing Complaint Without Leave to Amend and 20 With Prejudice at 3-4. 21 II. LEGAL STANDARD 22 Because Plaintiff is seeking to proceed in forma pauperis, the Court must 23 screen the Complaint under the Prisoner Litigation Reform Act of 1995 where “the 24 court shall identify cognizable claims or dismiss the complaint, or any portion of 25 the complaint, if the complaint—(1) is frivolous, malicious, or fails to state a claim 26 27 1 upon which relief may be granted; or (2) seeks monetary relief from a defendant 2 who is immune from such relief.” 28 U.S.C. § 1915A(b). 3 In making this assessment, the Court applies the pleading standard from 4 Federal Rule of Civil Procedure 8 (“Rule 8”), which requires “a short and plain 5 statement” of the claim that “give[s] the defendant fair notice of what the claim is 6 and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 7 554, 562-63 (2007). A complaint filed by a pro se litigant "is to be liberally 8 construed, and . . . must be held to less stringent standards than formal pleadings 9 drafted by lawyers.” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008) 10 (citations and internal quotation marks omitted). However, if a court finds a pro se 11 complaint deficient, dismissal may be with or without leave to amend. Lopez v. 12 Smith, 203 F.3d 1122, 1124 (9th Cir. 2000). 13 III. DISCUSSION 14 Plaintiff’s Complaint fails because Plaintiff names Defendants who this 15 Court has previously explained are immune or not subject to suit under § 1983. For 16 these reasons, the Court dismisses the Complaint without leave to amend. 17 A. District Attorney Roth Is Immune From Suit. 18 Defendant Roth is immune from suit as a prosecutor for presenting evidence 19 during the trial. Plaintiff alleges that Roth is liable under § 1983 because she 20 allegedly presented an improperly modified transcript of a recording. This 21 presentation of evidence during a trial by a prosecutor is not actionable under 22 § 1983 because the prosecutor is immune for this type of activity. Imbler v. 23 Pachtman, 424 U.S. 409, 431 (1976) (holding that “in initiating a prosecution and 24 in presenting the State’s case, the prosecutor is immune from a civil suit for 25 damages under § 1983”). 26 Accordingly, Plaintiff’s claims against Defendant Roth are not actionable and 27 are, therefore, dismissed without leave to amend and with prejudice. 1 B. Defendant Shah Cannot Be Sued Under § 1983. 2 Defendant Shah is not a state actor for purposes of § 1983. Actions under 3 | § 1983 are only able to be brought against state actors and not private citizens or 4 | those acting as private citizens. Here, Shah is again accused of improperly 5 | disclosing Plaintiffs criminal file to Defendant Roth in performance of Shah’s 6 | duties as a defense attorney. As such, Shah is not a “state actor” and therefore not 7 | liable under § 1983. Polk Cty. v. Dodson, 454 U.S. 312, 318 (1981) (“[A] lawyer 8 | representing a client is not, by virtue of being an officer of the court, a state actor 9 | ‘under color of state law’ within the meaning of § 1983.”). Consequently, Plaintiff 10 | has no cognizable claim against Defendant Shah and, thus, these claims are 11 | dismissed without leave to amend, and with prejudice. 12 IV. ORDER 13 Because the defects in Plaintiff?s Complaint cannot be cured by amendment, 14 | the Court DISMISSES the Complaint, without leave to amend, and WITH 15 | PREJUDICE. 16 17 | Dated: April 07, 2020

HONORABLE ANDRE BIROTTEJR.

19 United States District Judge 20 Presented by: 22 23 Weyer | EE 25 26 27 28