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26 ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

RICHARD A. KIRKHAM,

Plaintiff,

v.

JOSEPH CHALVERUS, et al.,

Defendants.

CASE NO. C05-1704C

ORDER

This matter comes before the Court on Plaintiff’s application to proceed in forma pauperis and

his proposed civil rights Complaint under 42 U.S.C. § 1983 (Dkt. No. 1), the Report and

Recommendation (“R&R”) of United States Magistrate Judge Mary Alice Theiler (Dkt. No. 5), and

Plaintiff’s objections to the R&R (Dkt. No. 7). Having reviewed the materials submitted by the parties

and having determined that oral argument is not necessary, the Court hereby finds and rules as follows.

Plaintiff’s Complaint alleges that the attorney who is acting as standby counsel in Plaintiff’s state

court criminal proceeding has denied Plaintiff access to the courts, has lied to and misled Plaintiff, and has

frustrated Plaintiff’s efforts to prepare a defense. (Compl. 3.) Plaintiff has named attorney Joseph

Chalverus and his law office as Defendants, seeking compensatory damages from them. (Id. at 12.) 

Judge Theiler recommends that Plaintiff’s application to proceed in forma pauperis be denied and his

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26 ORDER – 2

Complaint be dismissed on the grounds that the action was not brought against any state actors as

required under § 1983. (R&R 2.) Plaintiff agrees with Judge Theiler that his action cannot be maintained

against the Defendants he has named. (Pl.’s Obj. 1.) However, in his objection to the R&R, Plaintiff asks

that he now be allowed “to amend his complaint to a general claim/constitutional question,” presumably

against the same Defendants. (Id. at 2.) This request that he be granted leave to amend his Complaint to

change the claims against Defendants occurred after the magistrate judge’s R&R had been filed. 

A pro se litigant must be given leave to amend his or her complaint unless it is clear that the

deficiencies of the complaint could not be cured by amendment. Cato v. United States, 70 F.3d 1103,

1106 (9th Cir. 1995). To bring a civil rights action, Plaintiff must show that he has suffered a violation of

federal constitutional or statutory rights and that the violation was proximately caused by a person acting

under color of state or federal law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). 

Plaintiff’s Complaint is deficient in that the claims he attempts to bring cannot be made against these

private Defendants under § 1983. See Polk County v. Dodson, 454 U.S. 312 (1981) (private attorney

does not act under color of state law when performing traditional functions as counsel to defendant in

criminal proceeding). Moreover, the defects in Plaintiff’s Complaint cannot be cured by alleging a

“general claim/constitutional question.” Plaintiff alleges that Defendants violated his First, Fourth, Fifth,

Sixth, Eighth, and Fourteenth Amendment rights. (Compl. 3.) However, dropping the § 1983 claims and

bringing general constitutional claims is ineffective against these Defendants. A private right of action

against a private party under these amendments, when recognized at all, still requires government action

on the part of the Defendants, even outside a § 1983 claim. See, e.g., Pub. Utils. Comm’n of Dist. of

Columbia v. Pollak, 343 U.S. 451, 461 (1952) (The First Amendment applies to and restricts the federal

government, but not private parties.); Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388, 392–97 (1971) (recognizing an implied private right of action only for

violations of the Fourth Amendment by federal agents); Rank v. Nimmo, 677 F.2d 692, 701 (9th Cir.

1982) (“[t]he Due Process Clause of the Fifth Amendment applies to actions of the federal government

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26 ORDER – 3

and not to individual activities of private actors”); Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 67

(2001) (private right of action for damages under Eighth Amendment only in limited circumstances

against federal prison guard under Carlson v. Green, 446 U.S. 14 (1980)); Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 50 (1999) (Due process claims under the Fourteenth Amendment require state

action.). Because any general constitutional claims Plaintiff may amend to his Complaint also require

state or federal government action, the defects in his Complaint against these Defendants cannot be

cured by such amendment. Furthermore, Plaintiff does not propose adding any other Defendants. Thus,

an amendment of his Complaint would be futile. 

Finally, the Court notes that while Plaintiff’s possible federal constitutional claims are deficient for

lack of government action, Plaintiff may have a cause of action against Defendants for damages under

state law, including malpractice claims or claims under the state constitution. See Polk County, 454 U.S.

at 325–26 (pubic defender’s malpractice may subject him to state law malpractice action but not action

under § 1983). However, allowing Plaintiff to amend his Complaint in this case to include only state law

claims would destroy this Court’s subject matter jurisdiction, because he would have no federal question

and has not alleged sufficient facts about state citizenship of the parties and amount in controversy to

bring a diversity action. See 28 U.S.C. § 1331 (federal question); id. § 1332 (diversity jurisdiction). 

Therefore, Plaintiff’s request to amend his Complaint is DENIED. 

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26 ORDER – 4

For these reasons, it is hereby ORDERED:

(1) The court ADOPTS the Report and Recommendation. 

(2) Plaintiff’s application to proceed in forma pauperis is DENIED and Plaintiff’s Complaint is

DISMISSED without prejudice. 

(3) Plaintiff’s request for leave to amend his Complaint is DENIED. 

(4) The Clerk is directed to send copies of this Order to Plaintiff and to Magistrate Judge Theiler. 

SO ORDERED this 21st day of December, 2005.

A

John C. Coughenour

United States District Judge

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