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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

EDWARD R. WHITTINGTON,

Plaintiff,

v.

NORM MALENG, et al.,

Defendants.

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CASE NO. C05-1899-RSL-MAT

REPORT AND RECOMMENDATION

INTRODUCTION

Plaintiff has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983, along with

an amended application for leave to proceed in forma pauperis. (Dkt. #1). By separate Order,

the court has granted plaintiff leave to proceed in forma pauperis. Plaintiff is in custody of the

Washington Corrections Center in Shelton, Washington. He names as defendants the prosecutor

who tried him in state court, the prosecutor’s supervisor, and the appointed counsel who

represented him. For the reasons set forth below, the court recommends that plaintiff’s complaint

and this action be dismissed.

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REPORT AND RECOMMENDATION

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DISCUSSION

Plaintiff alleges in his complaint that the prosecutor who tried him in state court, Ms.

Corrin Bohn, requested a continuance on fraudulent grounds. (Complaint at 3). He further

alleges that Ms. Bohn’s supervisor, Norm Maleng, later instructed her to file a motion in state

court that was also fraudulent. Finally, plaintiff alleges that his appointed counsel, Yvonne Curtis,

denied him effective assistance of counsel by failing to discuss with him the possibility of a bench

trial, as opposed to a jury trial, and also by failing to interview important witnesses. (Id.)

Prosecutors are generally shielded from liability in § 1983 actions when they are acting

pursuant to their official role as advocate for the State, performing functions “intimately associated

with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976).

In addition, prosecutorial immunity extends to situations where, as here, plaintiff alleges that the

prosecutors misrepresented and mischaracterized the case against him. See Fry v. Melaragno, 939

F.2d 832, 838 (9th Cir. 1991). As the Ninth Circuit observed in Fry: “The proper forum for

challenges to these allegedly improper actions is in the adversary proceedings where they take

place, or if warranted, in professional disciplinary proceedings, not in a separate suit for damages.”

In light of the immunity accorded prosecutors, plaintiff’s claims against defendants Corrin

Bohn and Norm Maleng should be dismissed. In addition, plaintiff’s claim against his appointed

counsel should also be dismissed. The United States Supreme Court has concluded that public

defenders do not act under color of state law for § 1983 purposes when, as here, they are acting

in their role of advocates. Georgia v. McCollum, 505 U.S. 42, 53 (1992). If plaintiff believes that

he was denied effective assistance of counsel, then he may raise that claim in a petition for a writ

of habeas corpus under 28 U.S.C. § 2254.

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CONCLUSION

For the foregoing reasons, the court recommends that plaintiff’s complaint and this action

be dismissed on the grounds that plaintiff fails to state a claim upon which relief may be granted.

See 28 U.S.C. §1915(e)(2)(B)(ii). In addition, the court recommends that this dismissal count as

a “strike” under 28 U.S.C. § 1915(g). A proposed Order reflecting this recommendation is

attached.

DATED this 1st day of December , 2005.

A

Mary Alice Theiler

United States Magistrate Judge

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