Dupree v. Sterling et al

Filing 7

ORDER signed by Magistrate Judge Carolyn K Delaney on 08/03/11 DISMISSING CASE without prejudice. The clerk of the court is directed to send a copy of petitioner's application together with a copy of this order to Rosen, Bien and Galvan, 315 Montgomery Street, Tenth Floor, San Francisco, CA 94104. CASE CLOSED. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD JOSE DUPREE,

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Petitioner,

No. 2:10-cv-2901 CKD P

vs.
CYNTHIA A. STERLING, et al.
Respondent.

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ORDER
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Petitioner, a state prisoner proceeding without counsel, has filed a civil action on

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the form for filing a petition writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has

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consented to the magistrate judge’s jurisdiction under 28 U.S.C. § 636(c).

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28
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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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When considering whether a petition or complaint states a claim upon which relief

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can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197,

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2200 (2007), and construe the petition in the light most favorable to the plaintiff. See Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than

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those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive

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dismissal for failure to state a claim, a pro se petition must contain more than “naked assertions,”

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“labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, “[t]hreadbare recitals

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of the elements of a cause of action, supported by mere conclusory statements do not suffice.”

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Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can

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grant relief must have facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949.

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A writ of habeas corpus is the appropriate federal remedy when “a state prisoner is

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challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a

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determination that he is entitled to an immediate or speedier release from that imprisonment.”

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Preiser v. Rodgriguez, 411 U.S. 475, 500 (1973). “[A] claim for relief in habeas corpus must

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include reference to a specific federal constitutional guarantee, as well as a statement of the facts

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which entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996).

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Here, the petitioner does not challenge the fact or duration of his incarceration for
first degree murder and attempted murder. Instead, he vaguely alleges facts of which he was
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“apprised via T.V. by Jenny Toste.” Petition at 3. It appears from the petition that Toste is a

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television newscaster. Nothing before the court indicates that she has anything at all to do with

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plaintiff’s conviction. Although the factual details of the petition are hard to follow, it is clear

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that petitioner is of the delusional belief that Toste and others are involved in a conspiracy

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against him. Petitioner has therefore failed to specify any grounds for relief in his petition. See

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Rule 2(c), Rules Governing § 2254 Cases.

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The court ordinarily grants a petitioner leave to amend an application that on its

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face states no cognizable claim for relief. However, in this case it is apparent that, on the facts

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alleged, petitioner will not be able to state a plausible legal or factual basis on which this court

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could order the petition served on respondent. See Iqbal, 129 S. Ct. at 1949. In such

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circumstances, the court’s screening duty requires it to dismiss without leave to amend.

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In light of the nature of petitioner’s allegations, the court will direct the Clerk of

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Court to send a copy of the petition and this order to counsel for the plaintiff class in Coleman v.

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Brown, No. 2:90-cv-0520 LKK JFM.

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Accordingly, IT IS HEREBY ORDERED that:

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1. This action be dismissed without prejudice.

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2. The Clerk of the Court is directed to send a copy of petitioner’s application

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together with a copy of this order to Rosen, Bien and Galvan, 315 Montgomery Street, Tenth

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Floor, San Francisco, CA 94104.

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DATED: August 3, 2011

/s/ Carolyn K. Delaney

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United States Magistrate Judge

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dupr2901.ord

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