Dupree, Jr. v. Scott, et al

Filing 21

ORDER DISMISSING ACTION for Failure to State a Claim without Leave to Amend signed by Judge Oliver W. Wanger on 07/08/2011. CASE CLOSED. (Flores, E)

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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
ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM WITHOUT
LEAVE TO AMEND
(Document 15)

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Screening Order
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I.

Procedural History

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Plaintiff Richard Jose Dupree, Jr., is a prisoner in the custody of the California
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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this
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action by filing a complaint on February 25, 2011.
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On April 12, 2011, the Magistrate Judge issued Findings and Recommendation that
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Plaintiff’s complaint be dismissed for failure to state a claim without prejudice. The Findings
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and Recommendation was served on Plaintiff and contained notice that any objections should be
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filed within thirty (30) days. Plaintiff did not file objections.
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On April 18, 2011, Plaintiff filed a First Amended Complaint. Ten (10) days later, on

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April 28, 2011, Plaintiff filed an interlocutory appeal of the Findings and Recommendation. On

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June 29, 2011, the appellate court dismissed Plaintiff’s appeal for lack of jurisdiction. (Doc. 19).

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On July 8, 2011, the Magistrate Judge vacated the Findings and Recommendations dated

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April 12, 2011, because Plaintiff filed a First Amended Complaint. The First Amended

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Complaint is now before the Court for review.

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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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II.

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Summary of First Amended Complaint and Analysis
As with his original complaint, Plaintiff’s First Amended Complaint is comprised of

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allegations against network television anchor Jim Scott. Plaintiff alleges that Mr. Scott

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deceitfully extracted sexual favors from Plaintiff’s future wife, a meteorologist at the same

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television station.

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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 FAC is subject to dismissal because the allegations made “rise

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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. The television news anchor defendant is not a state actor.

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To succeed on a § 1983 damages claim, a plaintiff must demonstrate not only the deprivation of a

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

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was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48

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(1988). A § 1983 claim can lie against a private party only when “he is a willful participant in

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joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27 (1980). The fanciful

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allegations in Plaintiff’s complaint are insufficient to establish that the news anchor defendant

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acted under color of state law. Accordingly, the fanciful allegations do not support a § 1983

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action.

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III.

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Conclusion And Order
Plaintiff fails to state any cognizable claims. The Court does not find that Plaintiff will

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be able to allege additional facts to cure the deficiencies identified herein. Further leave to

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amend is not granted.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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1.

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This action is dismissed for failure to state a claim upon which relief may be
granted under 42 U.S.C. § 1983; and

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The Clerk of the Court is directed to close this action.
IT IS SO ORDERED.

Dated:
July 8, 2011
emm0d6

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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