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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RICHARD JOSE DUPREE, JR,
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Plaintiff,
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v.
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JIM SCOTT,
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Defendant.
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) 1:11cv0565 OWW DLB
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) FINDINGS AND RECOMMENDATION
) REGARDING DISMISSAL OF ACTION
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Plaintiff Richard Jose Dupree, Jr., proceeding pro se and in forma pauperis, filed this civil
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rights action on February 25, 2011.
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DISCUSSION
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A.

Screening Standard

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Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the
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complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof
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if the court determines that the action is legally “frivolous or malicious,” fails to state a claim on
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which relief may be granted, or seeks monetary relief from a defendant who is immune from such
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relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim,
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leave to amend may be granted to the extent that the deficiencies of the complaint can be cured
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by amendment.
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In reviewing a complaint under this standard, the Court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740

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(1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick

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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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B.

Plaintiff’s Allegations

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Plaintiff’s complaint is comprised of allegations against network television anchor Jim

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Scott. Plaintiff alleges that Mr. Scott deceitfully extracted sexual favors from Plaintiff’s future

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wife, a meteorologist at the same television station.

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C.

Analysis
Plaintiff’s allegations appear to be delusional. Court records indicate that Plaintiff has

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filed several other actions containing similar allegations. For example, in Case No. 2:11-cv-

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00533-KJN, Plaintiff filed a habeas corpus action alleging that Mr. Scott deceitfully extracted

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sexual favors from Plaintiff’s future wife. The court also noted that Plaintiff’s allegations were

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delusional. Dupree v. Scott, 2:10-cv-00533 KJN, Dkt. No. 3 at 2.

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A claim may be dismissed sua sponte if the allegations are found to be “fanciful,”

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“fantastic,” or “delusional” or if they rise to the level of the irrational or the wholly incredible.

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Denton v. Hernandez, 504 U.S. 25, 33 (1992). An example of a factually frivolous claim

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includes a claim describing fantastic or delusional scenarios. See Neitzke v. Williams, 490 U.S.

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319, 328 (1989). Here, Plaintiff’s complaint is subject to dismissal because the allegations made

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“rise to the level of the irrational or the wholly incredible.” Denton, 504 U.S. at 33.

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Further, Plaintiff’s claim fails as a matter of law. A civil rights suit brought pursuant to

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42 U.S.C. § 1983 requires state action and the television news anchor defendant is not a state

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actor. To succeed on a § 1983 damages claim, a plaintiff must demonstrate not only the

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deprivation of a right secured by the Constitution or laws of the United States, but that the

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defendant acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). A § 1983

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claim can lie against a private party only when “he is a willful participant in joint action with the

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State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27 (1980). Here, the fanciful allegations in

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Plaintiff’s complaint are insufficient to support a § 1983 action.

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CONCLUSION AND RECOMMENDATION

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be

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DISMISSED without prejudice.

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These Findings and Recommendations will be submitted to the Honorable Oliver W.

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Wanger pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after

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being served with these findings and recommendations, Plaintiff may file written objections with

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the Court. Fed. R. Civ. P. 72(b); Local Rule 304(b). The document should be captioned

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"Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
3b142a

April 11, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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