1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CLIFTON WILLIAMS, JR, Case No. 1:22-cv-00733-ADA-SKO

10 Plaintiff, FINDINGS AND RECOMMENDATION

TO DISMISS FOR FAILURE TO STATE

11 v. A CLAIM

12 (Doc. 1)

13 PERRY & ASSOCIATES ATTORNEYS AT 21-DAY DEADLINE 14 LAW, et al., Defendants. 15

16 17 18 I. INTRODUCTION 19 A. Background 20 On June 16, 2022, Plaintiff Clifton Williams, Jr., (“Plaintiff”), a prisoner proceeding pro 21 se, filed an action. (Doc. 1 (“Compl.”).) On that same date, Plaintiff also filed an application to 22 proceed in forma pauperis, which was granted on June 22, 2022. (Docs. 2 & 3.) Plaintiff’s 23 complaint is now before the Court for screening. The undersigned finds that Plaintiff has not 24 stated a cognizable claim and will recommend that this action be dismissed, without leave to 25 amend, for failure to state a claim upon which relief may be granted. 26 B. Screening Requirement and Standard 27 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 28 each case and shall dismiss the case at any time if the Court determines the allegation of poverty is 1 untrue, or the action is frivolous or malicious, fails to state a claim upon which relief may be 2 granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. 3 § 1915(e)(2). If the Court determines that a complaint fails to state a claim, leave to amend may 4 be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez 5 v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 6 The Court’s screening of a complaint under 28 U.S.C. § 1915(e)(2) is governed by the 7 following standards. A complaint may be dismissed as a matter of law for failure to state a claim 8 for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable 9 legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Plaintiff 10 must allege a minimum factual and legal basis for each claim that is sufficient to give each 11 defendant fair notice of what plaintiff’s claims are and the grounds upon which they rest. See, 12 e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 13 F.2d 795, 798 (9th Cir. 1991). 14 C. Summary of the Complaint 15 Plaintiff is currently housed at the Stanislaus County Re-Entry and Enhanced Alternative 16 to Custody Training Center. (See Compl. at 6.) He brings suit against Perry & Associates 17 Attorneys at Law, Willard Bakeman, and Christopher Rhee (collectively, “Defendants”) for 18 ineffective assistance of counsel in what appear to be ongoing criminal proceedings in state court. 19 (See id. at 1–4.) Plaintiff alleges that Defendants have never visited him while he has been in 20 custody since September 24, 2021, nor have they communicated with him about the progress of 21 his case. (Id. at 1–2.) According to Plaintiff, Defendants “have done nothing in my case in the 22 last 9 months but waive time.” (Id. at 2.) Plaintiff further alleges that he was informed by the 23 Stanislaus County Public Defender’s Office that Defendants’ contract with Stanislaus County “is 24 up at the end of June 2022, [and] [Defendants] will no longer serve the County or court system as 25 A.I.D. attorney[s].” (Id. at 5.) 26 Plaintiff alleges violations of the American Bar Association (“ABA”) Standards for 27 Criminal Justice and Model Rules of Professional Conduct, and his Sixth Amendment rights. (See 28 Compl. at 1–2.) Plaintiff requests $100,000. (See id. at 4.) 1 D. Pleading Requirements Under Federal Rule of Civil Procedure 8(a) 2 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 3 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain 4 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 5 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 6 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 7 quotation marks and citation omitted). 8 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 9 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 10 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 11 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’ ” 12 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as 13 true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 14 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 15 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 16 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal theories. 17 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil 18 rights complaint may not supply essential elements of the claim that were not initially pled,” 19 Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation 20 marks and citation omitted), and courts “are not required to indulge unwarranted inferences,” Doe 21 I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 22 omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient to state a 23 cognizable claim, and “facts that are merely consistent with a defendant’s liability” fall short. 24 Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted). 25 II. DISCUSSION 26 A. Plaintiff Fails to State a Cognizable Claim for Ineffective Assistance of 27 Counsel 28 1. Sixth Amendment 1 Plaintiff alleges a violation of his Sixth Amendment right to effective assistance of 2 counsel, which the undersigned construes as a claim under 42 U.S.C. § 1983 (“Section 1983”). 3 See Hughes v. AT&T, No. 3:19–CV–00179–SLG–DMS, 2020 WL 1269836, at *4 (D. Alaska Feb. 4 27, 2020), report and recommendation adopted, No. 3:19–CV–179–SLG–DMS, 2020 WL 5 1249872 (D. Alaska Mar. 16, 2020) (noting that Section 1983 “provides a mechanism for 6 remedying violations of pre-existing constitutional or federal rights”) (citing Graham v. Connor, 7 490 U.S. 386, 393-94 (1989)). The undersigned finds that Plaintiff’s Sixth Amendment claim fails 8 for several reasons. 9 First, a Section 1983 claim for violation of the Sixth Amendment right to effective 10 assistance of counsel is not properly brought where the plaintiff has not shown that his conviction 11 has been invalidated. Trimble v. City of Santa Rose, 49 F.3d 583, 585 (9th Cir. 2004) (citing Heck 12 v. Humphrey, 512 U.S. 477, 486-87 (1944)).1 Here, Plaintiff has not made the requisite showing, 13 as his criminal proceedings appear to be ongoing, as evidenced by his alleged disputes with 14 Defendants regarding how to best proceed with his case. (See Compl. at 2–3.) Plaintiff may not 15 seek damages—$100,000 requested in this case (see Compl. at 4)—under Section 1983 unless his 16 conviction or sentence has been declared invalid by a state court or a federal court’s issuance of a 17 writ of habeas corpus. See Heck, 512 U.S. at 486–87; Milewski v. Kohn, No. 3:19–CV–00095– 18 MMD–WGC, 2019 WL 1117909, at *2 (D. Nev. Mar. 11, 2019). 19 Second, to state a Section 1983 claim, the plaintiff must plead that the defendant(s) acted 20 “under color of state law” and “deprived the plaintiff of rights secured by the Constitution.” 21 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). Defendants, who appear to be 22 Plaintiff’s appointed counsel in his state criminal case (see Compl. at 1–3, 5), are not state actors 23 when acting in their role as an advocate. See, e.g., Polk County v. Dodson, 454 U.S. 312, 318, n.9 24 (1981) (“a lawyer representing a client is not, by virtue of being an officer of the court, a state 25 actor ‘under color of state law’ within the meaning of § 1983,” regardless of “whether the lawyer 26 is privately retained, appointed, or serving in a legal aid or defender program”) (citation omitted). 27 1 In Heck, the Supreme Court held that a state prisoner cannot recover damages in a Section 1983 suit if a judgment in 28 favor of the plaintiff “would necessarily imply the invalidity of his conviction or sentence . . . unless the plaintiff can 1 Thus, Plaintiff may not bring a Section 1983 claim against Defendants based on their 2 representation of Plaintiff in his state criminal case. 3 Finally, to the extent Plaintiff is attempting to challenge the ongoing state criminal 4 proceedings, any such claim is barred under the doctrine of Younger v. Harris, 401 U.S. 37 5 (1971). The Younger doctrine “prevents a federal court in most circumstances from directly 6 interfering with ongoing criminal proceedings in state court.” Jones v. Buckman, No. 2:18–cv– 7 0054–MCE–EFB, 2019 WL 1227921, at *2 (E.D. Cal. Mar. 15, 2019). “Further, the Younger 8 abstention doctrine bars requests for declaratory and monetary relief for constitutional injuries 9 arising out of a plaintiff’s ongoing state criminal prosecution.” Id. (citing Mann v. Jett, 781 F.2d 10 1448, 1449 (9th Cir. 1986)). 11 2. ABA Standards and Model Rules 12 Plaintiff alleges that Defendants violated both the ABA Standards for Criminal Justice and 13 Model Rules of Professional Conduct. (See Compl. at 1–2.) The ethical rules prescribed by the 14 ABA do not provide individuals with a cause of action. See Hueter v. Kruse, 576 F. Supp. 3d 743, 15 775 (D. Haw. 2021). See also American Bar Association, Model Rules of Professional Conduct: 16 Preamble and Scope (“Violation of a Rule should not itself give rise to a cause of action . . . nor 17 should it create any presumption in such a case that a legal duty has been breached.”) 18 Accordingly, Plaintiff cannot state a claim against Defendants for allegedly violating the ABA 19 Standards for Criminal Justice and Model Rules of Professional Conduct. 20 B. Leave to Amend Would Be Futile 21 When dismissing a complaint, the Ninth Circuit has stated that “leave to amend should be 22 granted unless the district court determines that the pleading could not possibly be cured by the 23 allegation of other facts.” Bly–Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (internal 24 quotation marks omitted); Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996). If, however, it is 25 clear after careful consideration that a complaint cannot be cured by amendment, the court may 26 dismiss without leave to amend. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); 27 see also Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013); accord Lopez, 203 F.3d at 28 1129 (“Courts are not required to grant leave to amend if a complaint lacks merit entirely.”). 1 Here, it is clear from the face of the complaint that Plaintiff’s claims for ineffective 2 assistance of counsel are not cognizable given that Plaintiff may not assert a Section 1983 claim 3 against Defendants for their representation of Plaintiff in his state criminal action. To the extent 4 Plaintiff is seeking to have a criminal conviction set aside, a petition for habeas corpus is his sole 5 judicial remedy when “attacking the validity of the fact or length of . . . confinement.” Preiser v. 6 Rodriguez, 411 U.S. 475, 489-90 (1973); Nettles v. Grounds, 830 F.3d 922, 929 (9th Cir. 2016) 7 (en banc) ( noting that the Supreme Court has held “that habeas is the exclusive vehicle for claims 8 brought by state prisoners that fall within the core of habeas and that such claims may not be 9 brought under § 1983”). Thus, the undersigned recommends denying leave to amend because 10 amendment would be futile. 11 III. CONCLUSION AND RECOMMENDATION 12 Based on the foregoing, it is HEREBY RECOMMENDED that this action be dismissed for 13 failure to state a claim, without leave to amend. 14 These Findings and Recommendation will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l)(B). Within twenty- 16 one (21) days after being served with these Findings and Recommendations, Plaintiff may file 17 written objections with the Court. The document should be captioned “Objections to Magistrate 18 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 19 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 20 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21

IT IS SO ORDERED.

22

23 Dated: September 1, 2022 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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