James Curtis Kern v. Tamera Lynn Soloman

Opinion

1 2 3 4 5 6 7 10 11 JAMES CURTIS KERN, No. 2:24-CV-1040-WBS-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Defendant’s unopposed motion to dismiss. See 19 ECF Nos. 25 and 26. Defendant has also filed a request for judicial notice. See ECF No. 27. 20 In considering a motion to dismiss, the Court must accept all allegations of 21 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 22 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 23 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 24 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 25 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 26 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 27 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). 28 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. 1 See Haines v. Kerner, 404 U.S. 519, 520 (1972). 2 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 3 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 4 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 5 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 6 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 7 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 8 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 9 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 10 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 11 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 12 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 13 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 14 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 15 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 16 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 17 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 18 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 19 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) 20 documents whose contents are alleged in or attached to the complaint and whose authenticity no 21 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 22 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 23 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 24 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 25 1994). 26 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 27 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 28 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 2 A. Procedural History 3 Plaintiff initiated this action with a pro se complaint filed on April 8, 2024. See 4 ECF No. 1. On August 28, 2025, the Court issued an order addressing the sufficiency of 5 Plaintiff’s complaint. See ECF No. 15. In that order, the Court determined that Plaintiff’s 6 complaint appeared to state a cognizable claim against defendant Soloman as alleged in Plaintiff’s 7 Claim I. See id. The Court found that Plaintiff’s remaining Claim II and Claim III appear to be 8 barred. See id. Plaintiff was granted an opportunity to file a first amended complaint but did not 9 do so. Claim II and Claim III were subsequently dismissed with prejudice for failure to state a 10 claim upon which relief can be granted. See ECF No. 20. 11 B. Plaintiff’s Allegations 12 This action proceeds on Plaintiff’s original complaint as to Claim I. Plaintiff James 13 Curtis Kern names Tamera Lynn Soloman as the sole defendant. See ECF No. 1, pg. 1. Plaintiff 14 asserts that Defendant Soloman, who was his court-appointed defense counsel, interfered with his 15 ability to obtain medical care while in jail and that Defendant did this in retaliation for Plaintiff 16 having previously fired her as his attorney. 17 Plaintiff asserts that Defendant Soloman violated his constitutional rights due to 18 the alleged retaliation. See id. at 4. Plaintiff asserts that he asked Defendant to subpoena his medical 19 records, but Defendant never sent Plaintiff’s medical records. See id. at 4. Plaintiff told Defendant 20 that his injuries occurred at the Sacramento County Jail, but Defendant showed no interest as Plaintiff 21 suffered daily. See id. Plaintiff asserts that he informed Defendant that after he submitted multiple 22 medical kits and medical grievances, Plaintiff was tortured and abused by deputies, but Defendant 23 never informed the court. See id. 24 According to Plaintiff, Judge Davis ordered a doctor to see Plaintiff at Sacramento 25 County Jail following a report he had been beaten by a deputy. See id. Defendant received a copy of a 26 report that Plaintiff had only been seen by a nurse. See id. Plaintiff asserts that Defendant did not want 27 to hear anything about the medical report or the court order requiring Plaintiff to see a doctor. See id. 28 / / / 1 Plaintiff informed Judge Davis that a nurse briefly saw Plaintiff to assess the injuries 2 Plaintiff sustained by the deputy. See id. Plaintiff contends that Judge Davis did not believe Plaintiff, 3 and Defendant did not intervene on Plaintiff’s behalf. See id. Defendant then requested a two-month 4 continuance without Plaintiff’s consent. See id. Plaintiff asserts that Defendant was retaliating against 5 Plaintiff for previously firing her and submitting a complaint to the California State Bar. See id. 6 According to Plaintiff, Defendant’s actions caused him extreme pain, torture, and neglect. See id. 7 Plaintiff asserts that Defendant delayed the process of Plaintiff receiving adequate help by not 8 notifying the proper authorities of the abuse that was taking place. See id. 9 C. Defendant’s Request for Judicial Notice 10 In her request for judicial notice in support of her motion to dismiss, Defendant 11 Soloman requests that the Court take notice of 24 facts, supported by 25 exhibits. See ECF No. 12 27. According to Defendant, the submitted exhibits show the following timeline of events in this 13 case:

14 October 11, 2022 Exhibit 1 -- Plaintiff was arraigned in the County of Sacramento on charges for violating California Penal Code 15 sections 220 and 211, and he was scheduled to return to court on October 18, 2022. See ECF No. 27-1. 16 October 18, 2022 Exhibit 2 -- Plaintiff was appointed a public defender, 17 Pamela Dominisse. See ECF No. 27-2.

18 May 4, 2023 Exhibit 3 -- During Plaintiff’s scheduled preliminary hearing, Defendant Soloman was appointed as Conflict 19 Criminal Counsel to represent Plaintiff. The preliminary hearing was reset to May 11, 2023. See ECF No. 27-3. 20 May 11, 2023 Exhibit 4 -- Defendant Soloman requested a continuance of 21 the preliminary hearing. See ECF No. 27-4.

22 June 9, 2023 Exhibit 5 -- Defendant Soloman expressed doubt pursuant to California Penal Code section 1368 as to whether 23 Plaintiff was competent to stand trial and assist her in his defense. See ECF No. 27-5. 24 August 1, 2023 Exhibit 6 -- The Court found that Plaintiff was competent 25 to stand trial and assist Defendant Soloman in his defense in the criminal proceeding. The preliminary hearing was set 26 for August 18, 2023. See ECF No. 27-6.

27 August 9, 2023 Exhibit 7 -- Plaintiff filed a Faretta motion to represent himself and a Marsden motion claiming ineffective 28 assistance of counsel. See ECF No. 27-7. 1 August 18, 2023 Exhibit 8 -- A new preliminary hearing was held and a new arraignment date was set for August 29, 2023. See ECF No. 2 27-8.

3 August 29, 2023 Exhibit 9 -- Defendant Soloman was reappointed to represent Plaintiff at the arraignment. See ECF No. 27-9. 4 October 11, 2023 Exhibit 10 -- At the trial readiness conference, the trial date 5 was vacated and reset for November 20, 2023. See ECF No. 27-10. 6 November 7, 2023 Exhibit 11 -- At the new trial readiness conference, the 7 Court ordered the jail to ensure Plaintiff was examined by a doctor within 48 hours and scheduled a hearing for 8 Plaintiff’s second Faretta motion for November 13, 2023. . See ECF No. 27-11. 9 November 13, 2023 Exhibit 12 -- The hearing on Plaintiff’s Faretta motion was 10 continued to November 15, 2023. See ECF No. 27-12.

11 November 15, 2023 Exhibit 13 -- The Faretta motion was dropped and the trial date vacated and reset for January 22, 2024, due to the 12 unavailability of Defendant Soloman, with the Court finding good cause for the continuance. See ECF No. 27- 13 13.

14 January 10, 2024 Exhibit 14 -- At the trial readiness conference, Plaintiff made another Faretta motion to represent himself, and it 15 was granted. Defendant Soloman was relieved as Plaintiff’s attorney. See ECF No. 27-14. 16 January 17, 2024 Exhibit 15 -- Plaintiff represented himself at trial and at the 17 hearing on the motions in limine. See ECF No. 27-15.

18 January 22, 2024 Exhibit 16 -- After Plaintiff’s motion to dismiss was denied and jury selection commenced, Plaintiff requested that he 19 be appointed counsel. See ECF No. 27-16.

20 January 24, 2024 Exhibit 17 -- Due to Defendant Soloman being ill, the trial was continued to January 26, 2024. See ECF No. 27-17. 21 February 1, 2024 Exhibit 18 -- Closing arguments were made and the jury 22 began deliberations. See ECF No. 27-18.

23 February 6, 2024 Exhibit 19 -- The jury returned a verdict of guilty on all five charges for violations of California Penal Code 24 sections 209(b)(1), 220, 211, 665/211, and 484(a). See ECF No. 27-19. 25 March 8, 2024 Exhibit 20 -- Plaintiff was sentenced to “7 yeas to life plus 26 6 years SP.” See ECF No. 27-20.

27 August 21, 2024 Exhibit 21 -- During a hearing on Plaintiff’s motion to vacate his conviction, Plaintiff’s motion was denied. See 28 ECF No. 27-21. 1 February 3, 2025 Exhibit 22 -- Plaintiff admits to his medical records being provided to him on the first day of trial in January 2024. 2 See ECF No. 27-22.

3 August 30, 2023 Exhibit 23 -- While being represented by Defendant, Plaintiff wrote a letter to Department 63 of the Sacramento 4 Superior Court advising the Court of his ongoing problem regarding his medical treatment, and to being seen by 5 doctors. See ECF No. 27-23.

6 June 11, 2024 Exhibits 24 and 25 -- Tamara Soloman is an attorney in private practice and employed by “Law Office of Tamara 7 Soloman, a Professional Law Corporation.” See ECF Nos. 27-24 and 27-25. 8 9 The Court finds that each of the exhibits referenced in Defendant’s request for 10 judicial notice – with the exception of Exhibit 22 -- are judicially noticeable matters of public 11 record, specifically official filings in the Sacramento County Superior Court. See U.S. v. 14.02 12 Acres of Land, 530 F.3d 883, 894 (9th Cir. 2008); Chandler v. U.S., 378 F.2d 906, 909 (9th Cir. 13 1967). These exhibits document proceedings in Plaintiff’s underlying criminal case. As to 14 Exhibit 22, which Defendant says constitutes Plaintiff’s admission that he received his property, 15 the Court finds that the attached document does not fairly stand for that point of fact. In 16 particular, the document reflects Plaintiff’s assertion that, while he requested his property, it was 17 never received. See ECF No. 27-22. The Court will not consider this document in ruling on 18 Defendant’s motion to dismiss. 19 21 In her unopposed motion to dismiss, Defendant Soloman argues Plaintiff fails to 22 state a plausible claim under Federal Rule of Civil Procedure 12(b)(6) because Plaintiff has not 23 alleged facts to show that Defendant was a state actor or acting under color of law for § 1983 24 purposes. See ECF No. 26, pg. 11. For the reasons discussed below, the Court agrees. 25 Plaintiff’s claim must allege facts sufficient to show that Defendant Soloman was 26 acting under color of state law for § 1983 purposes. See 42 U.S.C. § 1983. A public defender 27 does not act under color of state law when performing a lawyer’s traditional functions as counsel 28 to a defendant in a criminal proceeding, though they may be if they are performing administrative 1 or investigative functions. See Polk Cnty. v. Dodson, 454 U.S. 312, 318-25 (1981). Decisions not 2 pertaining to the client’s representation, such as hiring decisions or allocation of resources, are 3 examples of administrative functions. See Miranda v. Clark Cnty., 319 F. 3d 465 (9th Cir. 2003). 4 For § 1983 purposes, investigative functions have largely been defined by the Supreme Court in 5 the context of prosecutorial conduct. See Buckley v. Fitzsimmons, 509 U.S. 259; see also Imbler 6 v. Pachtman, 424 U.S. 409. Investigative functions may be likened to those normally performed 7 by a detective or police officer; duties relating to a prosecutor’s role as an advocate, such as 8 preparation for judicial proceedings, are not investigative. See Buckley, 509 U.S. at 272-74. 9 Here, no facts alleged by Plaintiff show that Defendant’s conduct (or lack thereof) 10 relating to obtaining medical records could be classified as an administrative or investigative 11 function. A public defender works under canons of professional responsibility that mandate his 12 exercise of independent judgment on behalf of the client. See Polk Cnty., 454 U.S. 312 at 321. 13 Defendant Soloman’s independent decision relating to her representation of Plaintiff—whether to 14 obtain certain medical records—falls under a lawyer’s traditional function as counsel to a 15 defendant in a criminal proceeding. Defendant’s conduct in this case is shown by judicially 16 noticeable facts as set forth in Defendant’s request for judicial notice and summarized above. 17 Because it is the “constitutional obligation of the State to respect the professional independence 18 of the public defenders whom it engages,” id. at 321-22, the Court declines to characterize 19 Defendant’s conduct as anything other than a traditional function of defense counsel. Thus, the 20 Court agrees that the Defendant was not acting under color of state law for § 1983 purposes. 21 In reaching this conclusion, the Court has considered four tests recognized by the 22 Ninth Circuit to identify state action by a private actor for purposes of § 1983 claims: (1) public 23 function, (2) joint action, (3) nexus, and (4) compulsion. See Kirtley v. Rainey, 326 F.3d 1088 24 (9th Cir. 2003). Satisfaction of any one test is sufficient to find state action, so long as no 25 countervailing factor exists. See id. at 1092. 26 / / / 27 / / / 28 / / / 1 A. Public Function Test 2 “Under the public function test, when private individuals or groups are endowed 3 by the State with powers or functions governmental in nature, they become agencies or 4 instrumentalities of the State and subject to its constitutional limitations.” Lee v. Katz, 276 F.3d 5 550 (9th Cir. 2002). The public function test is satisfied only on a showing that the function at 6 issue is “both traditionally and exclusively governmental.” Id. at 555. Here, the facts alleged and 7 which are judicially noticeable show that Defendant Soloman was not acting under color of state 8 law for § 1983 purposes because she was performing the traditional functions as Plaintiff’s 9 defense advocate in criminal proceedings. Thus, Defendant Soloman was not serving a public 10 function. 11 B. Joint Action Test 12 Under the joint action test, the Court considers whether “the state has so far 13 insinuated itself into a position of interdependence with the private entity that it must be 14 recognized as a joint participant in the challenged activity. This occurs when the state knowingly 15 accepts the benefits derived from unconstitutional behavior.” Parks Sch. Of Business v. 16 Symington, 51 F.3d 1480, 1486 (9th Cir. 1995) (citation omitted). The intended benefits of a 17 conflict criminal counsel’s actions clearly are intended to “flow directly” to the criminal 18 defendant. See id. Because the actions of Defendant Soloman flowed directly to Plaintiff as her 19 defense counsel in criminal proceedings, and not the State, there is no joint action. 20 C. Nexus Test 21 Under the nexus test, a state action may be found if there is such a close nexus 22 between the State and the challenged action that seemingly private behavior may be fairly treated 23 as that of the State itself. See Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, 531 U.S. 24 288, 295 (2001). As Defendant notes, Plaintiff does not allege any facts demonstrating joint 25 action or interdependence between Defendant and the State in the context of her representation in 26 criminal proceedings. See ECF No. 26 at 21. 27 / / / 28 / / / 1 2 D. Compulsion Test 3 The compulsion test requires the Court to decide whether the coercive influence or 4 || significant encouragement of the state effectively converts a private action into a government 5 || action. See Kirtley, 326 F.3d at 1094. The Court agrees with Defendant that, in this case, nothing 6 | in Plaintiff's allegations suggests that Defendant was coerced by the State in providing Plaintiff 7 || with representation. 8 9 Il. CONCLUSION 10 Based on the foregoing, the undersigned recommends as follows: 11 1. Defendant’s request for judicial notice, ECF No. 27, be granted except as to 12 | Exhibit 22. 13 2. Defendant’s unopposed motion to dismiss, ECF Nos. 25 and 26, be granted 14 | and that this action be dismissed with prejudice. 15 3. All other motions, ECF Nos. 24 and 31, be denied as moot. 16 These findings and recommendations are submitted to the United States District 17 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 18 || after being served with these findings and recommendations, any party may file written 19 || objections with the court. Responses to objections shall be filed within 14 days after service of 20 || objections. Failure to file objections within the specified time may waive the right to appeal. See 21 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 22 23 | Dated: March 24, 2026 Co 25 UNITED STATES MAGISTRATE JUDGE 26 27 28