1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NEBIYU SHEFREW SOLOMAN, 075674-7, Case No. 23-cv-04254-CRB (PR)

8 Plaintiff, ORDER OF DISMISSAL 9 v. (ECF No. 2)

10 JAY PITCHFORD, Deputy Public Defender, et al., 11 Defendant(s). 12

13 I. 14 Plaintiff Nebiyu Shefrew Soloman filed the instant pro se civil rights action under 42

shortly after the Sonoma County Superior Court on July 6, 2023 found him 16 mentally incompetent to stand trial on state criminal charges and entered an order committing him 17 to a state hospital for treatment pursuant to California Penal Code section 1370. Plaintiff broadly 18 alleges that his deputy public defender, the deputy district attorney, the presiding superior court 19 judge and their respective offices have failed to protect his federal constitutional rights during his 20 ongoing state criminal and civil commitment proceedings. Plaintiff seeks federal court 21 intervention in the proceedings as well as damages against the named defendants. He also seeks 22 leave to proceed in forma pauperis (IFP) under

. 23 II. 24 Based solely on his affidavit of poverty, plaintiff’s motion for leave to proceed IFP (ECF 25 No. 2) is GRANTED. But his IFP complaint will be dismissed under

(e)(2) 26 because it “fails to state a claim on which relief may be granted,” and “seeks monetary relief 27 against a defendant who is immune from such relief.”

(e)(2). 1 III. 2 It is well established that federal courts should not enjoin or otherwise interfere with 3 pending state criminal prosecutions absent a showing of the state’s bad faith or harassment, or a 4 showing that the statute challenged is flagrantly and patently violative of express constitutional 5 prohibitions. See Younger v. Harris,

(1971) (cost, anxiety and inconvenience 6 of criminal defense not kind of special circumstances or irreparable harm that would justify federal 7 court intervention; statute must be unconstitutional in every clause, sentence and paragraph, and in 8 whatever manner it is applied). Younger abstention also covers pending state civil enforcement 9 actions that involve important state interests and afford adequate opportunity to raise 10 constitutional issues. See Middlesex County Ethics Comm. v. Garden State Bar Ass’n,

(1982). 12 The rationale of Younger applies throughout state appellate proceedings, requiring that 13 state appellate review of a state court judgment be exhausted before federal court intervention is 14 permitted. See Huffman v. Pursue, Ltd.,

(1975). 15 Here, the rationale of Younger requires that this court abstain from entertaining plaintiff’s 16 request for federal court intervention in his ongoing state criminal and civil commitment 17 proceedings unless plaintiff shows that special circumstances warrant federal intervention. Cf. 18 Carden v. Montana,

(9th Cir. 1980) (pre-sentence habeas action). Only in 19 cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope 20 of obtaining a valid conviction and perhaps in other special circumstances where irreparable injury 21 can be shown is federal intervention in ongoing state criminal or civil commitment proceedings 22 appropriate. Cf.

at 84 (citing Perez v. Ledesma,

(1971)). Plaintiff makes no 23 such showing of special circumstances. His broad allegations of ineffective assistance of counsel 24 and failure by deputy district attorney and presiding judge to protect his federal constitutional 25 rights in the state proceedings are unfortunate but not enough to warrant federal court intervention. 26 Because Younger abstention is appropriate as to plaintiff’s request for federal court 27 intervention, the court may not retain jurisdiction over plaintiff’s request for federal court 1 791, 799 (9th Cir. 2001); Beltran v. California,

(9th Cir. 1988). But the court 2 need not also dismiss on abstention grounds plaintiff’s claims for damages. See Gilbertson v. 3 Albright,

(9th Cir. 2004) (en banc) (when damages are sought and Younger 4 principles apply, federal court should refrain from exercising jurisdiction temporarily and stay 5 claims for damages until state proceeding no longer pending). 6 Unfortunately for plaintiff, his claims for damages under

against his 7 deputy public defender, the deputy district attorney, the presiding superior court judge and their 8 respective offices for ineffective assistance of counsel and failure to protect his federal rights 9 during the ongoing state criminal and civil commitment proceedings must be dismissed under 28

(e)(2) because they “fail[] to state a claim on which relief may be granted,” or 11 “seeks monetary relief against a defendant who is immune from such relief.” First, a public 12 defender does not act under color of state law, an essential element of an action under § 1983, 13 when performing a lawyer’s traditional functions, such as entering pleas, making motions, 14 objecting at trial, cross-examining witnesses, and making closing arguments. Polk County v. 15 Dodson,

(1981). It matters not that the public defender failed to exercise 16 independent judgment or that he was employed by a public agency; it is the nature and context of 17 the function performed by the public defender that is determinative under Polk County. Miranda 18 v. Clark County, Nevada,

(9th Cir. 2003) (en banc). Second, a state 19 prosecuting attorney enjoys absolute immunity from damages under § 1983 for his conduct in 20 “pursuing a criminal prosecution” or analogous action insofar as he acts within his role as an 21 “advocate for the State” and his actions are “intimately associated with the judicial phase of the 22 criminal process.” Imbler v. Pachtman,

(1976). Third, a state judge enjoys 23 absolute immunity from damages under § 1983 for acts performed in his judicial capacity. See 24 Pierson v. Ray,

(1967). He “will not be deprived of immunity because the 25 action he took was in error, was done maliciously, or in excess of his authority; rather, he will be 26 subject to liability only when he has acted in the ‘clear absence of all jurisdiction.’” Stump v. 27 Sparkman,

, 356-57 62 (1978) (citations omitted). And finally, neither the office of ] presiding superior court judge can be liable for damages under §1983 on the apparent theory that 2 || they are somehow responsible for the actions or omissions of their employees. See Taylor v. List, 3

(9th Cir. 1989). 4 IV. 5 For the foregoing reasons, plaintiff's IFP complaint is DISMISSED under

1915(e)(2) because it “fails to state a claim on which relief may be granted,” and “seeks monetary 7 || relief against a defendant who is immune from such relief.” 8 IT ISSO ORDERED. 9 Dated: November 7, 2023 10 2 Ka CHARLES R. BREYER United States District Judge 12

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