DUFF v. STATE OF CALIFORNIA et al

Filing 8

ORDER of Dismissal. Signed by Judge Edward M. Chen on 10/15/2014. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 10/15/2014)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

DEWEY JOE DUFF,

9

No. C-14-4036 EMC (pr)

Plaintiff,
ORDER OF DISMISSAL

10

v.

11

STATE OF CALIFORNIA; et al.,

12

Defendants.
__________________________________/

13
14
15

Dewey Joe Duff, an inmate on death row at San Quentin State Prison, filed this pro se civil

16

rights action under 42 U.S.C. § 1983, complaining about various problems in his criminal case and

17

in the California process for reviewing capital convictions and sentences. He alleges that

18

California’s system for review of convictions and sentences in death penalty cases is

19

unconstitutionally slow, and that the record on appeal for his case is deficient due to the ineffective

20

assistance of appellate counsel. His complaint is now before the Court for review under 28 U.S.C. §

21

1915A.

22

The Court must dismiss a prisoner’s complaint if it determines that the action “is frivolous

23

[or] malicious.” 28 U.S.C. § 1915A(b)(1). (Section § 1915A(b)(1) is the prisoner analog to 28

24

U.S.C. § 1915(e), which allows the court to dismiss any pauper’s complaint if it is, among other

25

things, “frivolous or malicious.”) The district court may dismiss under § 1915 “a complaint ‘that

26

merely repeats pending or previously litigated claims.’” Cato v. United States, 70 F.3d 1103, 1105

27

n.2 (9th Cir. 1995); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (duplicative or

28

repetitious litigation of virtually identical causes of action is subject to dismissal under 28 U.S.C. §

1

1915 as malicious); Van Meter v. Morgan, 518 F.2d 366 (8th Cir. 1975) (dismissal of complaint as

2

frivolous was not an abuse of discretion where plaintiff had filed other similar complaints).

3

The complaint in this action repeats claims that Mr. Duff made in an action he commenced in

4

2012, Duff v. Brown, Case No. C 12-529 EMC. After giving Mr. Duff two opportunities to amend,

5

the Court dismissed the 2012 action “because the amended complaint fails to state a claim against

6

any particular defendant and fails to comply with the court’s order to correct the deficiencies in the

7

earlier pleadings. In the alternative, this action is dismissed because Younger abstention is

8

warranted.” Duff v. Brown, Case No. C 12-529 EMC, Docket # 17 at 9. Mr. Duff appealed. This

9

Court certified that the appeal was not taken in good faith and revoked pauper status for the appeal.

10

Duff v. Brown, Case No. C 12-529 EMC, Docket # 24. The Ninth Circuit denied Mr. Duff’s

11

“motion to proceed in forma pauperis because we also find the appeal is frivolous.” Duff v. Brown,

12

Ninth Cir. Case No. 13-16511, Docket # 7 (Order filed Jan. 14, 2014). Shortly thereafter, the Ninth

13

Circuit dismissed the appeal.

14

This action is frivolous because it merely repeats claims that were made in another action

15

and were adjudicated against Mr. Duff. See Cato, 70 F.3d at 1105 n.2. A small portion of the

16

complaint offers some new factual allegations about claims asserted in the 2012 action; sandwiched

17

within the 55-page generic complaint about the California capital appeals process are six

18

handwritten pages (Docket # 1 at 3-8) that describe some particulars in support of Mr. Duff’s

19

contentions that deficient performance by his appointed attorneys resulted in a deficient record on

20

appeal. The new factual allegations in support of the ineffective assistance of counsel claim do not

21

alter the outcome of this case because (a) they provide no grounds for any relief against the three

22

defendants (i.e., the State of California, the Governor of California, or the Attorney General of

23

California); (b) the ineffective assistance of counsel claim has the same problem under Heck v.

24

Humphrey, 512 U.S. 477 (1994), discussed in the order of dismissal of the 2012 action, see Duff v.

25

Brown, No. C 12-529 EMC,

26

///

27

///

28

///

2

1

Docket # 17 at 4-5; and (c) alternatively, Younger abstention would be required for the same reasons

2

explained in the order of dismissal of the 2012 action, see id. at 7-8. Therefore, this action is

3

DISMISSED because it is frivolous.

4

The Clerk shall close the file.

5
6

IT IS SO ORDERED.

7
8

Dated: October 15, 2014

9

_________________________
EDWARD M. CHEN
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3