Sullivan v. Barbee

• Court: District Court, D. Hawaii
• Decided: November 30, 2022
• Docket: 1:22-cv-00464
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII LEIHINAHINA SULLIVAN, CIVIL NO. 22-00464 LEK-RT #09779-122, ORDER DISMISSING INITIAL Plaintiff, COMPLAINT AGAINST RUSTAM A. BARBEE FOR INEFFECTIVE v. ASSISTANCE OF COUNSEL AND ACTION RUSTAM A. BARBEE,

Defendant.

ORDER DISMISSING INITIAL COMPLAINT AGAINST RUSTAM A. BARBEE FOR INEFFECTIVE ASSISTANCE OF COUNSEL AND ACTION

Before the Court is pro se Plaintiff Leihinahina Sullivan’s (“Sullivan”) Initial Complaint Against Rustam A. Barbee for Ineffective Assistance of Counsel (“Complaint”). ECF No. 1. Sullivan alleges that Barbee has provided her ineffective assistance in two ongoing criminal cases. Id. at PageID.2. For the following reasons, the Complaint and this action are DISMISSED. I. STATUTORY SCREENING The Court is required to screen all in forma pauperis pleadings pursuant to 28 U.S.C. § 1915(e)(2). See Byrd v. Phx. Police Dep’t, 885 F.3d 639, 641 (9th Cir. 2018). Claims or complaints that are frivolous, malicious, fail to state a claim for relief, or seek damages from defendants who are immune from suit must be dismissed. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).

Screening under 28 U.S.C. § 1915(e)(2) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (per curiam). Under this standard, a

complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). A claim is “plausible” when the facts alleged support a reasonable inference that the plaintiff is entitled to relief

from a specific defendant for specific misconduct. See id. In conducting this screening, the Court liberally construes pro se litigants’ pleadings and resolves all doubts in their favor. See Hebbe v. Pliler, 627 F.3d 338,

342 (9th Cir. 2010) (citations omitted). The Court must grant leave to amend if it appears the plaintiff can correct the defects in the complaint. See Lopez, 203 F.3d at 1130. When a claim cannot be saved by amendment, dismissal with prejudice is appropriate. See Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir.

2013). II. BACKGROUND1 Sullivan is awaiting sentencing in two federal criminal cases. See Minutes,

United States v. Sullivan, Cr. No. 17-00104 JMS-KJM-1 (D. Haw. July 20, 2021), ECF No. 1202; Minutes, United States v. Sullivan, Cr. No. 21-00096 JMS-1 (D. Haw. July 20, 2021), ECF No. 6 In each case, Sullivan’s court-appointed counsel

is Defendant Rustam A. Barbee. See CJA 20 Appointment and Authority to Pay Court-Appointed Counsel, Sullivan, Cr. No. 17-00104 JMS-KJM-1 (D. Haw. Feb. 4, 2022), ECF No. 1350; CJA 20 Appointment and Authority to Pay Court-Appointed Counsel, Sullivan, Cr. No. 21-00096 JMS-1 (D. Haw. Feb. 7,

2022), ECF No. 48. Sullivan commenced this action by signing the Complaint on October 25, 2022. See ECF No. 1 at 2. Sullivan alleges that Barbee has provided ineffective

assistance in her two criminal cases. Id. According to Sullivan, Barbee did not adequately communicate with her, failed to object to a presentence report, did not prepare her for an evidentiary hearing, failed to make various objections, and did not file an appeal. Id. Based on her claims, Sullivan seeks unspecified damages.

Id.

1 Sullivan’s factual allegations are accepted as true for purposes of screening. See Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). III. DISCUSSION The Court liberally construes this action as being brought pursuant to Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court “recognized for the first time an implied right of action for damages against federal officers alleged to have violated a

citizen’s constitutional rights.” Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017) (per curiam) (internal quotation marks and citation omitted). Bivens involved a suit against individual federal agents who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. See Bivens, 403 U.S. at

389–90. Since Bivens, the Supreme Court has expanded this implied cause of action only twice. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017) (“These three cases — Bivens, Davis, and Carlson — represent the only instances in which

the Court has approved of an implied damages remedy under the Constitution itself.”); Davis v. Passman, 442 U.S. 228 (1979) (suit under the Fifth Amendment’s Due Process Clause for gender discrimination by a United States Congressman); Carlson v. Green, 446 U.S. 14 (1980) (suit under the Eighth

Amendment’s Cruel and Unusual Punishment Clause for failure to provide adequate medical treatment by federal prison officials). The Supreme Court “has made clear that expanding the Bivens remedy is

now a ‘disfavored’ judicial activity.” Abbasi, 137 S. Ct. at 1857 (quoting Iqbal, 556 U.S. at 675). “This is in accord with the Court’s observation that it has ‘consistently refused to extend Bivens to any new context or new category of

defendants.’”2 Id. (quoting Malesko, 534 U.S. at 68). Indeed, the Supreme Court has indicated that “if [the Court] were called to decide Bivens today, [it] would decline to discover any implied causes of action in the Constitution.” Egbert, 142

S. Ct. at 1809. In deciding whether a Bivens remedy is available, courts first consider whether providing such a remedy is precluded by prior cases in which the Supreme Court or the Ninth Circuit has declined to recognize an implied right of action. See

Lanuza v. Love, 899 F.3d 1019, 1025 (9th Cir. 2018). If a claim is precluded, that is the end of the matter. If a claim is not precluded, courts then apply a two-step test.

2 The Supreme Court declined to create a Bivens remedy in the following cases: a First Amendment suit against a federal employer, see Bush v. Lucas, 462 U.S. 367 (1983); a race discrimination suit against military officers, see Chappell v. Wallace, 462 U.S. 296 (1983); a substantive due process suit against military officers, see United States v. Stanley, 483 U.S. 669 (1987); a procedural due process suit against Social Security officials, see Schweiker v. Chilicky, 487 U.S. 412 (1988); a procedural due process suit against a federal agency for wrongful termination, see FDIC v. Meyer, 510 U.S. 471 (1994); an Eighth Amendment suit against a private halfway house operator under contract with the BOP, see Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001); a claim of retaliation by Bureau of Land Management officials against plaintiff for his exercise of Fifth Amendment property rights, see Wilkie v. Robbins, 551 U.S. 537 (2007); a suit under the Fifth, Eighth, and Fourteenth Amendments against United States Public Health Service personnel, see Hui v. Castaneda, 559 U.S. 799 (2010); an Eighth Amendment suit against prison guards at a private prison, see Minneci v. Pollard, 565 U.S. 118 (2012); a Fifth Amendment suit against Department of Justice officials, see Abbasi, 137 S. Ct. 1843; a Fourth and Fifth Amendment suit against a United States Border Patrol agent, Hernandez v. Mesa, 140 S. Ct. 735 (2020); and a First and Fourth Amendment suit against a United States Border Patrol Agent, see Egbert v. Boule, 142 S. Ct. 1793 (2022). At step one, courts determine whether a plaintiff is seeking a Bivens remedy in a new context. See Ioane v. Hodges, 939 F.3d 945, 951 (9th Cir. 2018). The

context is new “[i]f the case is different in a meaningful way from previous Bivens cases decided by [the Supreme Court].” Abbasi, 137 S. Ct. at 1859. If the plaintiff is seeking a Bivens remedy in a new context, then courts proceed to the second

step. At step two, courts may extend Bivens only if two conditions are met. First, “a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, ‘an alternative remedial structure.’” Egbert,

142 S. Ct. at 1804 (citations omitted)). “So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a

Bivens remedy.” Id. at 1807. “Second, if a claim arises in a new context, a Bivens remedy is unavailable if there are ‘special factors’ indicating that the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’” Id. at 1803 (citation omitted). “If there is

even a single ‘reason to pause before applying Bivens in a new context,’ a court may not recognize a Bivens remedy.” Id. (citation omitted). Although the Supreme Court has yet to define “special factors,” it has explained that “the inquiry

must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Abbasi, 137 S. Ct. at 1857–58.

The Supreme Court has stated that this two-step test often resolves to a single question: “whether there is any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages

action to proceed.’” Egbert, 142 S. Ct. at 1805 (citation omitted). “Put another way, ‘the most important question is who should decide whether to provide for a damages remedy, Congress or the courts?’” Id. at 1803 (citation omitted). “If there is a rational reason to think that the answer is ‘Congress’ — as it will be in

most every case, no Bivens action may lie.” Id. (citation omitted). Thus, “if there is any reason to think that ‘judicial intrusion’ into a given field might be ‘harmful’ or ‘inappropriate,’” or “even if there is the ‘potential’ for such consequences, a

court cannot afford a plaintiff a Bivens remedy.” Id. at 1805–06 (citations omitted). Sullivan’s claims must be dismissed for at least two reasons. First, there is no Bivens remedy for Sullivan’s claims because Barbee was not acting under color

of federal law. See Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982) (“If a public defender does not act under color of state law in representing an indigent defendant in a state criminal proceeding, it follows that a public defender does not

act under color of federal law in performing the identical functions as a lawyer to an indigent defendant in a federal criminal proceeding.”); see also Hill v. Bookout, 584 F. App’x 588, 589 (9th Cir. 2014) (“[A] federal public defender does not act

under color of federal law when performing the traditional role of a lawyer representing an indigent criminal defendant.”); Weaver v. Frick, No. 98-15362, 1999 WL 191413, at *1 (9th Cir. Mar. 19, 1999) (“Because an attorney appointed

by the court does not act under color of state or federal law when performing the traditional functions of counsel to a criminal defendant, [plaintiff’s] claim is wholly insubstantial and the district court did not abuse its discretion by dismissing [plaintiff’s] complaint for lack of jurisdiction.” (internal citations and footnote

omitted)); Black v. Barnes, No. 93-16435, 1995 WL 394363, at *1 (9th Cir. June 30, 1995) (“[Plaintiff’s] claim does not have arguable basis in law or in fact because there is no jurisdictional basis for a Bivens action against a federal public

defender on a claim of inadequate representation in a criminal proceeding.”); Chow v. Delambert, No. 91-16116, 1992 WL 203878, at *1 (9th Cir. Aug. 20, 1992) (“[Plaintiff’s Bivens] claim does not have an arguable basis in law or in fact because his attorney is a private party who does not act under color of federal

law.”); Shoulderblade v. Babcock, No. CV 10-117-BLG-RFC-CSO, 2010 WL 3928619, at *1 (D. Mont. Oct. 4, 2010) (“Even if [plaintiff] could prove ineffective assistance of counsel, he cannot state a claim for damages against his criminal defense lawyer because there would be no state action.”). Thus, Sullivan fails to state a plausible claim for relief under Bivens.

Second, even assuming the existence of a Bivens remedy, Sullivan’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held “that, in order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been” previously invalidated. Id. at 486– 87. A conviction or sentence may be invalidated by being reversed on appeal,

expunged by executive order, declared invalid by a state tribunal, or called into question by a federal court’s issuance of a writ of habeas corpus. See id. Although the Heck rule was announced with respect to an action for damages, it applies no

matter the relief sought. See Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005). In addition, the Ninth Circuit has concluded that the rationale of Heck applies to Bivens actions. See Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996). Here, Sullivan cannot show that her a conviction or sentence has been

previously invalidated. Indeed, Sullivan has not yet been sentenced. Sullivan’s claims are therefore also barred by Heck. See Harshman v. Beistline, Case No. 18-cv-05430-EMC, 2019 WL 295261, at *2 (N.D. Cal. Jan. 23, 2019) (“Even if a

Bivens claim existed for claims regarding the criminal trial or filing practices in federal courts, [plaintiff] cannot bring a Bivens action for alleged constitutional violations in connection with his criminal trial as long as the conviction remains in

place.”); Klucka v. Oronoz, No. 2:12-cv-01760-LRH, 2012 WL 6161970, at *2 (D. Nev. Dec. 10, 2012) (“To the extent Plaintiff seeks damages under Bivens based on the alleged ineffective assistance of his stand-by counsel, his claim is dismissed.”);

Shoulderblade, 2010 WL 3928619, at *2 (“[E]ven if [plaintiff] could name a proper defendant, any claims regarding his criminal proceedings are barred by the doctrine set forth in Heck.”); Kashani v. Svetcov, No. C 00-4449 SI, 2001 WL 210479, at *2 (N.D. Cal. Feb. 20, 2001) (“[E]ven if [plaintiff] could plead some

conspiracy to avoid the rule that precludes an action against one’s criminal defense attorney, his damages claim could not proceed because it is barred by Heck.”). Because amendment of Sullivan’s claims would be futile, the Complaint and this

action are DISMISSED WITH PREJUDICE. IV. 28 U.S.C. § 1915(g) Sullivan is notified that this dismissal may count as a “strike” under 28 U.S.C. § 1915(g). Under this “3-strikes” provision, a prisoner may not bring a

civil action or appeal a civil judgment in forma pauperis, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). V. CONCLUSION (1) The Initial Complaint Against Rustam A. Barbee for Ineffective Assistance of Counsel, ECF No. 1, is DISMISSED for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2). (2) Because amendment of Sullivan’s claims would be futile, the Complaint and this action are DISMISSED WITH PREJUDICE, and this dismissal may constitute a strike under 28 U.S.C. § 1915(g). (3) The Clerk is DIRECTED to enter judgment and close this case. IT IS SO ORDERED. DATED: Honolulu, Hawaii, November 30, 2022.

$ % /s/ Leslie E. Kobayashi Leslie E. Kobayashi gp United States District Judge

LEITHINAHINA SULLIVAN VS. RUSTAM A. BARBEE; CV 22-00464 LEK- RT; ORDER DISMISSING INITIAL COMPLAINT AGAINST RUSTAM A. BARBEE FOR INEFFECTIVE ASSISTANCE OF COUNSEL AND ACTION

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