Milton v. Foulk

Filing 20

ORDER signed by Magistrate Judge Craig M. Kellison on 5/16/2016 DISMISSING this action for failure to state a claim; and the Clerk shall enter judgment and close this file. CASE CLOSED.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHNNY BEE MILTON,

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Plaintiff,
vs.

ORDER

F. FOULK,
Defendant.

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No. 2:15-CV-0537-CMK-P

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C.

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§ 636(c) and no other party has been served or appeared in the action. Pending before the court

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is plaintiff’s complaint (Doc. 5).

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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. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied
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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must

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allege with at least some degree of particularity overt acts by specific defendants which support

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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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In this case, plaintiff complains of various problems with his criminal trial and

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seeks release from prison. When a state prisoner challenges the legality of his custody and the

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relief he seeks is a determination that he is entitled to an earlier or immediate release, such a

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challenge is not cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a

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petition for a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also

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Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583,

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586 (9th Cir. 1995) (per curiam). On February 24, 2016, the court directed plaintiff to show

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cause why the action should not be dismissed for failure to state a claim. Plaintiff has not

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responded. Because it does not appear possible that the deficiencies identified herein can be

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cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of

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the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Accordingly, IT IS HEREBY ORDERED that:

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This action is dismissed for failure to state a claim; and

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2.

The Clerk of the Court is directed to enter judgment and close this file.

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DATED: May 16, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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