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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BILLY NUNLEY, Case No. 2:20-cv-07119-JLS-SHK 12 Plaintiff, 13 ORDER DISMISSING MATTER, v. WITHOUT PREJUDICE 14 KENNETH BROCK, 15 Defendant. 16

17 18 On July 9, 2020, Plaintiff Billy Nunley (“Plaintiff”), a pro se prisoner 19 incarcerated at California City Correctional Facility in California City, California, 20 constructively filed1 a civil rights complaint (“Complaint” or “Compl.”) under 42

(“§ 1983”) against Defendant Kenneth Brock (“Defendant”). 22 Electronic Case Filing Number (“ECF No.”) 1, Compl. For the reasons below, 23 the Court DISMISSES the matter, without prejudice. 24 / / / 25 / / / 26 27 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Douglas v. 1 I. BACKGROUND 2 On July 18, 2019, Plaintiff previously filed a similar complaint, under 42

(“§ 1983”) against the same Defendant who was a private attorney 4 retained by Plaintiff to assist in a California state criminal matter. ECF No. 1, 5 Compl. at 1; Nunley v. Brock, No. 2:19-cv-06186-JLS-SHK (closed on Aug. 1, 6 2019) (the “First Nunley Case”). The Court denied Plaintiff’s request to proceed 7 without paying the filing fee in the First Nunley Case, explained that Plaintiff could 8 not sue Defendant under § 1983 because Defendant was not a state actor, and 9 dismissed the action without leave to amend. Id. at ECF No. 4, Order Denying 10 Request to Proceed Without Prepayment of Filing Fees at 5. Plaintiff tried to 11 appeal the matter to the Ninth Circuit, but the Ninth Circuit also denied Plaintiff’s 12 motion to proceed in forma pauperis and dismissed the appeal as frivolous. Id. at 13 ECF No. 10, Order From Ninth Circuit at 1. 14 Plaintiff attempts to distinguish the present Complaint from the complaint in 15 the First Nunley Case by stating that: 16 In my first lawsuit against my ex-criminal attorney[,] I sued him in the 17 capacity of his office for (Malpractice) as an attorney and was 18 unsuccessful in this [C]ourt. I am now suing him civically [sic] in his 19 personal capacity for his personal negligence and this failure to uphold 20 the contract entered by myself and him. 21 ECF No. 1, Compl. at 1. Plaintiff again claims that Defendant, a private criminal 22 defense attorney retained by Plaintiff, violated Plaintiff’s rights during the course of 23 Plaintiff’s criminal proceeding in state court. Specifically, Plaintiff argues that 24 Defendant: (1) violated Plaintiff’s Sixth Amendment right to adequate 25 representation; (2) violated Plaintiff’s Fourteenth Amendment right to equal 26 protection under state and federal law; and (3) violated Plaintiff’s Fifth 27 Amendment right to a fair trial and adequate representation. Id. at 5. 1 Plaintiff alleges that Defendant “unlawfully and maliciously took funds” to 2 represent Plaintiff in his criminal case but did not provide Plaintiff with a defense; 3 “only appeared to one court” proceeding; failed to meet with Plaintiff to discuss 4 Plaintiff’s case; and did not keep not keep in contact with Plaintiff’s wife regarding 5 Plaintiff’s case. Id. at 5-6. 6 Plaintiff states that Defendant acted under color of law by violating “the 7 ethical business code” and acting in “willful contempt, and negligence on abiding 8 by contract.” Id. at 3. He seeks to recover damages in the amount of $50,000 and 9 any funds paid to Defendant for Plaintiff’s representation. Id. at 6. Plaintiff did not 10 request to proceed in forma pauperis nor did Plaintiff pay the required filing fees. 11 ECF No. 2, Notice of Filing of Complaint Without Prepayment of Filing Fees or 12 Request Proceed In Forma Pauperis (“Notice”). 13 II. LEGAL STANDARD 14 Section 1915(e)(2) of Title 28 provides: 15 Notwithstanding any filing fee, or any portion thereof, that may have 16 been paid, the court shall dismiss the case at any time if the court 17 determines that— 18 (A) the allegation of poverty is untrue; or 19 (B) the action or appeal— 20 (i) is frivolous or malicious; 21 (ii) fails to state a claim on which relief may be granted; or 22 (iii) seeks monetary relief against a defendant who is immune 23 from such relief. 24 Additionally, Federal Rule of Civil Procedure 12(h)(3) requires that 25 “[w]henever it appears ... that the court lacks jurisdiction of the subject 26 matter, the court shall dismiss the action.” See also Ruhrgas AG v. 27 Marathon Oil Co.,

(1999) (citing Steel Co. v. Citizens 1 delineations must be policed by the courts on their own initiative[.]”). 2 Consequently, the Court is required to determine whether it has subject 3 matter jurisdiction over the matter. 4 In making this assessment, the Court applies the pleading standard from 5 Federal Rule of Civil Procedure 8 (“Rule 8”). Under Rule 8, a complaint must 6 “include a short and plain statement” of the claim and “give the defendant fair 7 notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 8 Twombly,

(2007). The complaint must contain more 9 than “naked assertions,” “labels and conclusions” or “a formulaic recitation of 10 the elements of a cause of action” to state a claim for relief.

. The 11 Court must accept all of the plaintiff’s factual allegations as true in determining 12 whether a plaintiff has stated a claim for which relief could be granted. Hishon v. 13 King & Spalding,

(1984). Dismissal is appropriate based either on 14 the lack of cognizable legal theories or the lack of pleading sufficient facts to 15 support cognizable legal theories. Balistreri v. Pacifica Police Dep’t,

, 16 699 (9th Cir. 1990). 17 Finally, “[a] document filed pro se is to be liberally construed, and a pro se 18 complaint, however inartfully pleaded, must be held to less stringent standards 19 than formal pleadings drafted by lawyers.” Woods v. Carey,

, 889-90 20 (9th Cir. 2008) (citations and internal quotation marks omitted). The Court has 21 “an obligation where the petitioner is [pro se], particularly in civil rights cases, to 22 construe the pleadings liberally and to afford the petitioner the benefit of any 23 doubt.” Akhtar v. Mesa,

(9th Cir. 2012) (citation and internal 24 quotation marks omitted). If, however, a court finds that a pro se complaint has 25 failed to state a claim, dismissal may be with or without leave to amend. Lopez v.

F.3d 1122, 1126-30 (9th Cir. 2000). 27 / / / 1 III. DISCUSSION 2 Plaintiff’s claims fail because he is attempting to sue an individual who is not 3 subject to suit under § 1983 and there does not appear to be any other basis for 4 subject matter jurisdiction to allow this case to go forward in federal court. 5 A. There Is No Federal Question Jurisdiction Because The Suit Cannot Be 6 Brought Under § 1983. 7 To state a claim for relief under § 1983, a plaintiff must plead facts showing 8 that a person acting under color of state law caused a violation of his rights. This 9 “state-action” requirement requires that the deprivation “be caused by the 10 exercise of some right or privilege created by the State . . . or by a person for whom 11 the State is responsible,” and “the party charged with the deprivation must be a 12 person who may fairly be said to be a state actor.” West v. Atkins,

, 49 13 (1988) (internal quotations omitted). 14 Here, Plaintiff identifies Defendant as his privately retained counsel in his 15 underlying criminal action. As explained by the Supreme Court: 16 Within the context of our legal system, the duties of a defense lawyer 17 are those of a personal counselor and advocate. It is often said that 18 lawyers are “officers of the court.” But the Courts of Appeals are 19 agreed that a lawyer representing a client is not, by virtue of being an 20 officer of the court, a state actor “under color of state law” within the 21 meaning of § 1983. 22 Polk Cty. v. Dodson,

(1981). Defendant, as a privately retained 23 attorney, is therefore not a “state actor” under § 1983 and this allegation “fails to 24 state a claim on which relief may be granted.” 28 U.S.C, § 1915(e)(2)(B)(ii); see 25 Dodson,

(holding that a public defender’s obligation to advance 26 the interests of a client is “essentially a private function, traditionally filled by 27 retained counsel” and therefore not state action). 1 Additionally, because the allegations fail to state a claim on which relief may 2 be granted, this also does not provide a basis for subject matter jurisdiction in this 3 case. 4 B. The Allegations Show That Diversity Jurisdiction Does Not Exist. 5 Section 1332, United States Code, Title 28 provides: 6 (a) The district courts shall have original jurisdiction of all civil actions 7 where the matter in controversy exceeds the sum or value of $75,000, 8 exclusive of interest and costs, and is between— 9 (1) citizens of different States; 10 (2) citizens of a State and citizens or subjects of a foreign state, except 11 that the district courts shall not have original jurisdiction under this 12 subsection of an action between citizens of a State and citizens or 13 subjects of a foreign state who are lawfully admitted for permanent 14 residence in the United States and are domiciled in the same State; 15 (3) citizens of different States and in which citizens or subjects of a 16 foreign state are additional parties; and 17 (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and 18 citizens of a State or of different States. 19 Plaintiff’s allegations fail to show that diversity jurisdiction exists for several 20 reasons. First, in the damages allegations, Plaintiff seek “fifty [t]housand dollars to 21 be refunded and any other damages the court may deem fit and necessary for the 22 negligent behaviors while being my counselor.” ECF No. 1, Compl. at 6. Though 23 Plaintiff includes the vague allegation of “any other damages,” Plaintiff provides 24 no basis to conclude that the damages would be greater than the required $75,000. 25 Second, there is no indication that Plaintiff and Defendant are citizens of 26 different states. Rather, by all indications, it appears that Plaintiff and Defendant 27 are residents and citizens of the same state, California. See ECF No. 1, Compl. at 1 | in California). Consequently, on this basis alone, there is no reason to conclude that 2 | diversity exists. 3 IV. ORDER 4 Accordingly, IT IS HEREBY ORDERED that this action be DISMISSED 5 | without prejudice, and without leave to amend. 6 7 8 I. es 4, [ 9 Dated: September 25, 2020 “HONORABLE JOSEPHINE STATON —— 10 United States District Judge 11 12 | Presented by: 13 14 Wes 15 | HONORABLE SHASHI H. KEWALRAMANI 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28