Gipbsin v. McCumber et al

Filing 19

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 06/01/17 recommending that plaintiff's amended complaint be dismissed with prejudice; and this case be closed. Referred to Judge Morrison C.England Jr. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLARENCE A. GIPBSIN,

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Plaintiff,

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v.

No. 2:16-cv-2053 MCE CKD P

FINDINGS AND RECOMMENDATIONS

J. MCCUMBER, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with an action for violation of civil rights

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under 42 U.S.C. § 1983. On December 19, 2016, the court screened plaintiff’s original complaint

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as the court is required to do under 28 U.S.C. § 1915A(a). The court dismissed plaintiff’s

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complaint with leave to amend. Plaintiff has now filed an amended complaint.

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 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.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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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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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v.

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

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In his amended complaint, plaintiff again takes issue with parole eligibility proceedings.

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However, plaintiff fails to clearly articulate any violation of his federal rights. In essence,

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plaintiff complains about being denied parole. However, in the court’s December 19, 2016 order

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dismissing plaintiff’s complaint with leave to amend, the court informed plaintiff:

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[T]hrough this action, the court cannot grant any relief which would
result in plaintiff receiving a shorter prison sentence. When a state
prisoner challenges the legality of his custody and the relief he
seeks is the determination of his entitlement to an earlier or
immediate release, his sole federal remedy is a writ of habeas
corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

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To the extent plaintiff seeks monetary relief because he has been denied parole, his claims are

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barred by the Heck doctrine which forbids prisoner / plaintiffs from proceeding with claims for

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damages which imply the invalidity of their conviction or sentence. Heck v. Humphry, 512 U.S.

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477, 486-87 (1994).

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Because plaintiff fails to articulate any claim upon which plaintiff may proceed in his

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amended complaint, his amended complaint should be dismissed. Leave to amend should not be

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granted a second time as that appears futile given the court’s instructions to plaintiff when the
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court dismissed plaintiff’s original complaint with respect to the contents of the amended

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complaint. See ECF No. 11 at 3.

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s amended complaint be dismissed with prejudice; and

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2. This case be closed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: June 1, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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gipb2053.dis

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