UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

TROY LUKENS, 

Plaintiff, 

v. 

HEIDI STEWARD, et al., 

Defendants. 

COFFIN, Magistrate Judge. 

3:14-cv-00959-TC 

FINDINGS AND 

RECOMMENDATION 

Plaintiff's Motion to Amend (#8) is allowed. The Clerk 

is directed to docket the "Amended Civil Complaint" attached 

to the motion as the operative pleading. However, for the 

reasons set forth below, the following defendants should be 

dismissed sua sponte. 

Defendant Michael D. Schrunk is the former District 

Attorney for Mul tnomah County. Prosecutors are absolutely 

immune from liability for their prosecutorial functions. 

1 - FINDINGS AND RECOMMENDATION 

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Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Babcock v. 

Tyler, 884 F. 2d 4 97, 501 (9th Cir. 198 9) . Plaintiff's 

allegations clearly relate to Mr. Schrunk's conduct in his 

capacity as a prosecutor. 

Irene B. Taylor is alleged to be a "Deputy Public 

Defender at the Office of Public Defense Service." In order to 

state a claim under 42 U.S.C. § 1983, a plaintiff must prove 

that the defendant acted under the color of state law. 

Crumpton v. Gates, 947 F.2d 1418 (9th Cir. 1991); Gibson v. 

United States, 781 F.2d 1334 (9th Cir. 1986). 

Private parties do not act under the color of state law. 

Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). 

Specifically, public defenders acting in their role as 

advocates do not act under the color of state law for purposes 

of Section 1983. Dodson v. Polk County, 454 U.S.312, 319-322 

(1981); Rivera v. Green, 775 F.2d 1381, 1384 (9th Cir. 1985); 

see also, Briley v. California, 564 F.2d 849, 853 (9th Cir. 

1977) [holding that a private attorney is not a state actor]. 

Accordingly, plaintiff has failed to state a claim 

against defendant Taylor or "the Office of Public Defense 

Service." 

Based on the foregoing, plaintiff's claims against 

Defendants Schrunk, Taylor and "the Office of Public Defense 

Service" should be dismissed sua sponte for failure to state 

2 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-00959-TC Document 14 Filed 09/11/14 Page 2 of 3
a claim. 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice 

of appeal pursuant to Rule 4(a) (1), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district 

court's judgment or appealable order. The parties shall have 

fourteen (14) days from the date of service of a copy of this 

recommendation within which to file specific written 

objections with the court. Thereafter, the parties have 

fourteen ( 14) days within which to file a response to the 

objections. Failure to timely file objections to any factual 

determinations of the Magistrate Judge will be considered a 

waiver of a party's right to de novo consideration of the 

factual issues and will constitute a waiver of a party's right 

to appellate review of the findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge's 

recommendation. 

Any appea~ :from an order adopting this Finding and 

Recommendation or Judgment o:f dismissa~ wou~d be :frivo~ous and 

not taken in good :faith. 

DATED this { day of 

Thomas M. o fin 

United States Magistrate Judge 

3 - FINDINGS AND RECOMMENDATION 

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