Cabrera v. Barrett ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 OMAR CABRERA, No. 1:19-cv-01189-DAD-BAM 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 CHARLES MARTIN BARRETT, Attorney THIS ACTION at Law, 15 (Doc. No. 10) Defendant. 16 17 18 Plaintiff Omar Cabrera is a state prisoner proceeding pro se and in forma pauperis in this 19 civil rights action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics 20 Agents, 403 U.S. 388 (1971). The matter was referred to a United States Magistrate Judge 21 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On August 18, 2020, the assigned magistrate judge screened plaintiff’s complaint and 23 issued findings and recommendations, recommending that this action be dismissed for failure to 24 state a cognizable claim upon which relief may be granted. (Doc. No. 10 at 5–6.) Those findings 25 and recommendations were served on plaintiff and contained notice that any objections thereto 26 were to be filed within fourteen (14) days from the date of service. (Id.) Following the granting 27 of an extension of time to do so, plaintiff filed his objections on September 14, 2020. (Doc. No. 28 13.) 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C©), this court has conducted a 2 | de novo review of the case. Having carefully reviewed the entire file, the court finds the findings 3 | and recommendations to be supported by the record and by proper analysis. 4 In his objections, plaintiff restates some of the same allegations made in his complaint and 5 || cites to two cases which he asserts refute the assigned magistrate judge’s finding that the 6 | defendant, a trial attorney retained by defendant, did not act under color of state law. (Ud. at □□□□□ 7 | The cases plaintiff cites are examples of the limited circumstances where attorneys have been 8 || held to act under the color of state law. Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 9 | F.3d 592, 612 (6th Cir. 2007) (plaintiff did “not seek to recover on the basis of the failures of his 10 individual counsel, but on the basis of an alleged agency-wide policy”); Tower v. Glover, 467 11 | U.S. 914 (1988) (plaintiff alleged his public defender participated in a conspiracy to secure his 12 | conviction). The findings and recommendations adequately and appropriately addressed why 13 | plaintiff's allegations in this case would not cause the claim asserted here to fall within any of 14 || those such circumstances. (Doc. No. 10 at4n.4.) The additional cases cited by the plaintiff do 15 || not call for a different result, and thus dismissal is required. ! 16 Accordingly, 17 1. The findings and recommendations issued on August 18, 2020 (Doc. No. 10) are 18 adopted in full; 19 2. This action is dismissed without prejudice die to plaintiff’s failure to state a claim 20 upon which relief may be granted; and 21 3. The Clerk of the Court is directed to close this case. 22 3 IT IS SO ORDERED. ~ 24 Dated: _ December 2, 2020 Ls 7: ar 35 UNITED STATES DISTRICT JUDGE 26 | This court’s order dismissing plaintiff's complaint does not foreclose plaintiff from bringing 27 | another type of claim against his former attorney, if he believes it is appropriate to do so, but only prohibits him from pursuing such a claim brought pursuant to 42 U.S.C. § 1983 or Bivens, the 28 | claims he has attempted to bring in this action.