1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STEVEN PROVOST, Case No. 23-cv-01520-WHO (PR)

Plaintiff, 8

ORDER OF DISMISSAL

v. 9

10 SAN BRUNO COUNTY JAIL NURSE, et al., 11 Defendants.

12 13 INTRODUCTION 14 Plaintiff Steven Provost alleges that unnamed nurses failed to provide him with 15 proper medical care, and in an unrelated claim, that his public defender was incompetent at 16 trial. His 42 U.S.C. § 1983 complaint containing these allegations is now before me for 17 review pursuant to 28 U.S.C. § 1915A(a). 18 Provost concedes that his claims against the unnamed nurses are unexhausted; they 19 must be DISMISSED for that reason. And public defenders cannot be held liable under 20 section 1983 for their actions as public defenders, so his claim against his public defender 21 is DISMISSED WITH PREJUDICE. 22 DISCUSSION 23 A. Standard of Review 24 A federal court must conduct a preliminary screening in any case in which a 25 prisoner seeks redress from a governmental entity or officer or employee of a 26 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 27 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 1 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 2 See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 3 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 4 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 5 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 6 plausibility when the plaintiff pleads factual content that allows the court to draw the 7 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 8 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 9 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 10 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 11 (9th Cir. 1994). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged violation was committed by a person acting under the 15 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 16 B. Legal Claims 17 Provost alleges that in December 2022, unnamed nurses at the San Bruno County 18 Jail failed to provide him with proper medical care. (Compl., Dkt. No. 7 at 2-3.) He 19 admits, however, that he has not exhausted his claims against them. (Id. at 2.) He is 20 unsure whether there was a grievance system and asserts that if there were one, he was too 21 ill to use it. 22 The fact that Provost’s claims are unexhausted bars means that his claims cannot 23 proceed at this time. The Prison Litigation Reform Act provides that “[n]o action shall be 24 brought with respect to prison conditions under [42 U.S.C. 1983], or any other Federal 25 law, by a prisoner confined in any jail, prison, or other correctional facility until such 26 administrative remedies as are available are exhausted.” 42 U.S.C. 1997e(a). Compliance 27 with the exhaustion requirement is “mandatory,” Porter v. Nussle, 534 U.S. 516, 524 1 || U.S. 81, 84 (2006). Courts may not create their own “special circumstances” exceptions to 2 || the exhaustion requirement. Ross v. Blake, 578 U.S. 632, 639 (2016) (reversing Fourth 3 || Circuit’s ruling that failure to exhaust was justified where prisoner reasonably—even 4 || though mistakenly—believed he had exhausted remedies). Even “[w]hen a prison inmate 5 || seeks injunctive relief, a court need not ignore the inmate’s failure to take advantage of 6 || adequate prison procedures, and an inmate who needlessly bypasses such procedures may 7 || properly be compelled to pursue them.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). 8 || After Provost has exhausted his claims, he may file a new section 1983 action. These 9 || claims are DISMISSED as unexhausted. 10 Provost also claims that his public defender was incompetent at trial. (Compl., Dkt. 11 || No. 7 at 3.) This claim would ordinarily be dismissed because it is unrelated to the prior 2 claim; Provost would then be directed to file the claim in a separate section 1983 action. 5 13 || But this clatm should be dismissed with prejudice because public defenders do not act as S 14 || state actors; they cannot be held liable under section 1983 when they act as public 3 15 defenders. Polk County v. Dodson, 454 U.S. 312, 318-19 (1981). Accordingly, this claim a 16 || is DISMISSED WITH PREJUDICE.

17 CONCLUSION 18 The complaint is DISMISSED. The claims against the jail nurses are DISMISSED 19 || without prejudice as unexhausted. After Provost has exhausted these claims, he may raise 20 || them again in a new section 1983 action. His section 1983 claim against his public 21 || defender is DISMISSED WITH PREJUDICE because a public defendant is not a state 22 || actor and cannot be liable under section 1983. 23 The Clerk shall enter judgment in favor of defendants and close the file. 24 IT IS SO ORDERED. 25 Dated: September 26, 2023 . MQe 26 Y .

ILLIAM H. ORRICK

27 United States District Judge 28