1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 TRAVIS TAMU WHITE, Case No. 22-cv-06025-WHO (PR)

Plaintiff, 5 ORDER STAYING ACTION v. 6

7 BARBIER SECURITY, et al., Dkt. No. 9 Defendants. 8

9 10 INTRODUCTION 11 Plaintiff Travis Tamu White’s

complaint contains allegations 12 against the persons involved in his arrest and the filing of criminal charges. His claims of 13 discriminatory prosecution must be stayed until the criminal charges have been resolved. 14 DISCUSSION 15 A. Standard of Review 16 A federal court must conduct a preliminary screening in any case in which a 17 prisoner seeks redress from a governmental entity or officer or employee of a 18 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 19 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 20 upon which relief may be granted or seek monetary relief from a defendant who is immune 21 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. 22 See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 23 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 24 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) 25 (quoting Bell Atlantic Corp. v. Twombly,

(2007)). “A claim has facial 26 plausibility when the plaintiff pleads factual content that allows the court to draw the 27 reasonable inference that the defendant is liable for the misconduct alleged.”

(quoting 1 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 2 be drawn from the facts alleged.” Clegg v. Cult Awareness Network,

, 754–55 3 (9th Cir. 1994). 4 To state a claim under

, a plaintiff must allege two essential 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins,

(1988). 8 B. Legal Claims 9 White alleges that he faces criminal charges because of a discriminatory 10 prosecution. He names as defendants the Marin District Attorney, the San Rafael Police 11 Department, the San Rafael City Planner, his defense attorney Ford Greene, and Barbier 12 Security, a private security company. (Compl., Dkt. No. 1 at 1-5.) He alleges that he was 13 attacked by a trespasser at his public housing complex and acted to protect himself. (Id. at 14 3.) His protective acts, he alleges, gave rise to the criminal charges he faces. (Id.) He 15 blames the police for hiring an inadequate private security service, Barbier Security, whose 16 negligent actions allowed the trespasser to access his housing complex. (Id.) 17 This suit will be stayed because the criminal charges related to his allegations of a 18 discriminatory prosecution have not been resolved. If a plaintiff files a claim related to 19 rulings that likely will be made in a pending or anticipated criminal trial, it is within the 20 power of the district court, and accords with common practice, to stay the civil action until 21 the criminal case or the likelihood of a criminal case is ended. Wallace v. Kate,

(2007). If the plaintiff is then convicted, and if the stayed civil suit would 23 impugn that conviction, Heck v. Humphrey,

(1994), requires dismissal; 24 otherwise, the case may proceed. Id. at 394. 25 There are other problems with the complaint. The alleged acts of the police 26 department, Barbier Security, and the city planner are unrelated to whether the prosecutor 27 made the decision to file charges against him. Federal Rule of Civil Procedure 20 requires 1 || occurrences” and pose a “question of law or fact common to all defendants.” As a result, 2 || those unrelated claims will be dismissed. And the allegations regarding security at his 3 || housing complex amount to at worst negligence or gross negligence, neither of which are 4 actionable under section 1983. Farmer v. Brennan,

, 835-37 & n.4 (1994); 5 || Estelle v. Gamble,

(1976). Accordingly, the claims against the police 6 || department, Barbier Security, and the city planner are DISMISSED. 7 White’s claims against his defense attorney for ineffective assistance are also 8 DISMISSED. An essential element of an action under

is that the 9 || defendant act under color of state law, and a public defender does not act under color of 10 || state law when performing a lawyer’s traditional functions such as entering pleas, making 11 || motions, objecting at trial, cross-examining witnesses, and making closing arguments. 12 || Polk County v. Dodson,

(1981). 5 13 White’s motion for a preliminary injunction is DENIED. (Dkt. No. 9.) S 14 CONCLUSION 3 15 This action is STAYED until White informs the Court, by way of a motion to a 16 || reopen, that the criminal charges have been dismissed or have resulted in a conviction, or

17 || that the likelihood of a criminal case has ended. Any motion to reopen must have the 18 || words MOTION TO REOPEN written on the first page. 19 The claims against the San Rafael Police Department, Barbier Security, the San 20 || Rafael City Planner, and Ford Greene are DISMISSED. White’s motion for a preliminary 21 injunction is DENIED. (Dkt. No. 9) 22 The Clerk shall terminate Dkt. No. 9, and ADMINISTRATIVELY CLOSE the file 23 || pending the stay of this action. 24 IT IS SO ORDERED. 25 |) Dated: March 24, 2023 Ue 26 IAM H. ORRICK 27 United States District Judge 28