Dupree, Jr. v. Scott, et al

Filing 13

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED Without Prejudice re 1 Complaint, signed by Magistrate Judge Dennis L. Beck on 4/11/2011. Referred to Judge Wanger. Objections to F&R due within thirty days. (Jessen, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 RICHARD JOSE DUPREE, JR, 9 10 Plaintiff, 11 v. 12 JIM SCOTT, 13 14 Defendant. 15 ) 1:11cv0565 OWW DLB ) ) ) FINDINGS AND RECOMMENDATION ) REGARDING DISMISSAL OF ACTION ) ) ) ) ) ) ) ) ) 16 Plaintiff Richard Jose Dupree, Jr., proceeding pro se and in forma pauperis, filed this civil 17 rights action on February 25, 2011. 18 DISCUSSION 19 A. Screening Standard 20 Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the 21 complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof 22 if the court determines that the action is legally “frivolous or malicious,” fails to state a claim on 23 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 24 relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, 25 leave to amend may be granted to the extent that the deficiencies of the complaint can be cured 26 by amendment. 27 28 1 1 In reviewing a complaint under this standard, the Court must accept as true the allegations 2 of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 3 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick 4 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor, 5 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 6 B. Plaintiff’s Allegations 7 Plaintiff’s complaint is comprised of allegations against network television anchor Jim 8 Scott. Plaintiff alleges that Mr. Scott deceitfully extracted sexual favors from Plaintiff’s future 9 wife, a meteorologist at the same television station. 10 11 C. Analysis Plaintiff’s allegations appear to be delusional. Court records indicate that Plaintiff has 12 filed several other actions containing similar allegations. For example, in Case No. 2:11-cv- 13 00533-KJN, Plaintiff filed a habeas corpus action alleging that Mr. Scott deceitfully extracted 14 sexual favors from Plaintiff’s future wife. The court also noted that Plaintiff’s allegations were 15 delusional. Dupree v. Scott, 2:10-cv-00533 KJN, Dkt. No. 3 at 2. 16 A claim may be dismissed sua sponte if the allegations are found to be “fanciful,” 17 “fantastic,” or “delusional” or if they rise to the level of the irrational or the wholly incredible. 18 Denton v. Hernandez, 504 U.S. 25, 33 (1992). An example of a factually frivolous claim 19 includes a claim describing fantastic or delusional scenarios. See Neitzke v. Williams, 490 U.S. 20 319, 328 (1989). Here, Plaintiff’s complaint is subject to dismissal because the allegations made 21 “rise to the level of the irrational or the wholly incredible.” Denton, 504 U.S. at 33. 22 Further, Plaintiff’s claim fails as a matter of law. A civil rights suit brought pursuant to 23 42 U.S.C. § 1983 requires state action and the television news anchor defendant is not a state 24 actor. To succeed on a § 1983 damages claim, a plaintiff must demonstrate not only the 25 deprivation of a right secured by the Constitution or laws of the United States, but that the 26 defendant acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). A § 1983 27 claim can lie against a private party only when “he is a willful participant in joint action with the 28 2 1 State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27 (1980). Here, the fanciful allegations in 2 Plaintiff’s complaint are insufficient to support a § 1983 action. 3 CONCLUSION AND RECOMMENDATION 4 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be 5 DISMISSED without prejudice. 6 These Findings and Recommendations will be submitted to the Honorable Oliver W. 7 Wanger pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after 8 being served with these findings and recommendations, Plaintiff may file written objections with 9 the Court. Fed. R. Civ. P. 72(b); Local Rule 304(b). The document should be captioned 10 "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that 11 failure to file objections within the specified time may waive the right to appeal the District 12 Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. 15 Dated: 3b142a April 11, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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