1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 ERIC J. LIVELY, Case No. 21-cv-02743-JD

9 Plaintiff, ORDER OF DISMISSAL v. 10

11 RUSSELL J. CLANTON, et al., Defendants. 12

13 14 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under

. 15 He has been granted leave to proceed in forma pauperis. 16 DISCUSSION 17 STANDARD OF REVIEW 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 20 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 21 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 22 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 23 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th 24 Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 27 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 1 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 2 the speculative level.” Bell Atlantic Corp. v. Twombly,

(2007) (citations 3 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 4 face.”

. The United States Supreme Court has explained the “plausible on its face” 5 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 6 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 7 should assume their veracity and then determine whether they plausibly give rise to an entitlement 8 to relief.” Ashcroft v. Iqbal,

(2009). 9 To state a claim under

, a plaintiff must allege that: (1) a right secured by 10 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 11 committed by a person acting under the color of state law. West v. Atkins,

(1988). 12 LEGAL CLAIMS 13 Plaintiff seeks money damages from the attorneys who represented him at the criminal 14 trial. Attorneys in private practice are not state actors. See Simmons v. Sacramento County 15 Superior Court,

(9th Cir. 2003); see also Kimes v. Stone,

, 1126 16 (9th Cir. 1996) (attorneys are private actors). Services performed by a private attorney in 17 connection with a lawsuit do not constitute action under color of state law. See Franklin v. 18 Oregon,

(9th Cir. 1981); Briley v. California,

(9th Cir. 19 1977). And claims for legal malpractice do not come within the jurisdiction of the federal courts. 20 See Franklin,

. 21 Plaintiff alleges that his retained attorneys violated the terms of their contract by failing to 22 adequately provide legal services for his criminal trial. Plaintiff fails to state a claim pursuant to 23

because defendants were not state actors pursuant to the legal standards above. 24 Nor has plaintiff presented any other facts that would provide this Court with jurisdiction as all 25 parties resided in California and the trial occurred in California. Plaintiff may seek relief in state 26 court. Because no amount of amendment would cure the deficiencies in this complaint, this action 27 is DISMISSED with prejudice for failure to state a claim. 1 The Clerk is requested to close this case. 2 IT IS SO ORDERED. 3 || Dated: April 30, 2021 4 5 JAMES DfNATO 6 United Stgtes District Judge 4 8 9 10 11 12

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