Dupree v. Gray

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/11/16 ORDERING that the motion to proceed in forma pauperis (ECF No. 2 ) is DENIED. The complaint is dismissed without prejudice, for failure to state a claim. The Clerk is directed to close the case. CASE CLOSED.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD JOSE DUPREE, Jr.,

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No. 2:15-cv-0203-EFB P (TEMP)

Plaintiff,

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v.

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JANET J. GRAY,

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ORDER

Defendant.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is

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before the undersigned pursuant to plaintiff’s consent. See 28 U.S.C. § 636; see also E.D. Cal.

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Local Rules, Appx. A, at (k)(4).

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I. Request to Proceed In Forma Pauperis

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Plaintiff’s motion to proceed in forma pauperis is not complete. The certificate portion

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that must be completed by plaintiff’s institution of incarceration has not been filled out. Further,

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plaintiff has not filed a certified copy of his prison trust account statement for the six month

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period immediately preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2). Therefore,

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the motion to proceed in forma pauperis cannot be granted.1

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Even if plaintiff had filed a complete application, the court could not grant his request to
proceed in forma pauperis. Having reviewed the court’s records, the court finds that on at least
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II. Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)
of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain statement of the claim showing that the pleader is entitled to relief, in order to give the

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defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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three prior occasions, plaintiff filed lawsuits in this district that were dismissed on the ground that
they were frivolous, malicious or failed to state a claim. See Dupree v. United States Copyright
Office, CIV S-11-1700 WBS KJN P (E.D. Cal.), Order filed July 28, 2011 (designating action as
plaintiff’s “third strike” under 28 U.S.C. § 1915(g)). Unless plaintiff is under imminent danger of
serious physical injury – something he does not allege here – plaintiff is barred as a “three strike”
litigant from proceeding in forma pauperis and is therefore obligated to pay the entire filing fee in
any civil action he initiates in this court. 28 U.S.C. § 1915(g). As explained herein, however, the
an order requiring plaintiff to pay the filing fee would be futile. Plaintiff asserts a claim that must
be pursued in a habeas action, not a civil rights claim.
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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III. Screening Order

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Plaintiff alleges that his appellate counsel did not adequately represent him on appeal.

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Allegations of deficient performance by counsel in state criminal proceedings are cognizable only

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in a habeas action properly filed under 28 U.S.C. § 2254. No civil rights action can lie against a

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publicly appointed criminal defense attorney for actions she took in performing a lawyer’s

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traditional functions as counsel in a criminal proceeding. See Polk County v. Dodson, 454 U.S.

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312, 325 (1981).

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If a complaint filed under the Civil Rights Act states claims that sound in habeas, the court

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should not convert the complaint into a habeas petition. See Trimble v. City of Santa Rosa, 49

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F.3d 583, 586 (9th Cir. 1995); Craver v. Franco, No. CIV S-07-0428 RRB-CMK-P, 2008 WL

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191056 at *3 (E.D. Cal. Jan. 22, 2008). The proper course, instead, is to dismiss the claims

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without prejudice to plaintiff’s right to reassert them in a habeas petition. Id.

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IV. Summary of Order

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Accordingly, IT IS HEREBY ORDERED that:

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1. The motion to proceed in forma pauperis (ECF No. 2) is denied.

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2. The complaint is dismissed without prejudice, for failure to state a claim.

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3. The Clerk is directed to close the case.

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DATED: May 11, 2016.

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