Gay v. Brown et al

Filing 10

ORDER OF DISMISSAL. For the foregoing reasons, the complaint is DISMISSED without leave to amend for failure to state a claim. Signed by Judge Edward J. Davila on 2/20/2013. (ecg, COURT STAFF) (Filed on 2/21/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 KENNETH EARL GAY, Plaintiff, 12 13 vs. 14 EDMUND BROWN, et al., 15 Defendants. 16 No. C 12-04280 EJD (PR) ) ) ) ) ) ) ) ) ) ) ) ORDER OF DISMISSAL 17 Plaintiff, a state prisoner at San Quentin State Prison, filed the instant civil rights 18 19 action in pro se pursuant to 42 U.S.C. § 1983. Plaintiff’s original complaint was 20 dismissed with leave to amend and Plaintiff has filed an amended complaint. 21 DISCUSSION 22 23 24 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a 25 prisoner seeks redress from a governmental entity or officer or employee of a 26 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify 27 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 28 claim upon which relief may be granted or seek monetary relief from a defendant who is Order of Dismissal 04280Gay_dism.wpd 1 1 immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be 2 liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 3 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 4 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 9 B. Plaintiff’s Claims Plaintiff’s original complaint named as Defendants all justices on the California 10 11 Supreme Court, several former governors and various legal associations. Plaintiff, who 12 was sentenced to death, stated that the appellate process for death penalty cases in 13 California is broken as it takes far too long to appoint counsel, for a legal decision, the 14 decisions are political and former Chief Justice Rose Bird was removed for political 15 reasons because she opposed the death penalty. Plaintiff also discussed his displeasure in 16 the manner federal courts process habeas cases. These allegations failed to set forth a 17 cognizable claim and Plaintiff was provided an opportunity to amend.1 The amended complaint repeats the same allegations of the original complaint and 18 19 also challenges Plaintiff’s underlying conviction. Plaintiff’s general and wide ranging 20 claim that the California justice system is broken is far too vague and fails to state a claim 21 for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. 22 Twombly, 550 U.S. 544, 570 (2007). ) ("[A] complaint must contain sufficient factual 23 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'"). To the 24 extent Plaintiff wishes to challenge the evidence of his conviction he must do so in a 25 26 27 28 1 However, the appeals process has benefitted Plaintiff in that several of his robbery related counts were overturned on appeal and a retrial on the penalty phase was ordered. Later the retrial of the penalty phase was reversed and remanded for a second retrial. People v. Gay, 42 Cal. 4th 1196 (2008) Order of Dismissal 04280Gay_dism.wpd 2 1 habeas petition. The complaint will be dismissed and as Plaintiff has already been 2 provided an opportunity to amend, and as it is clear that further amendment would be 3 futile, this case is dismissed without leave to amend. See Lopez v. Smith, 203 F.3d 1122, 4 1129 (9th Cir. 2000). 5 CONCLUSION 6 7 For the foregoing reasons, the complaint is DISMISSED without leave to amend 8 for failure to state a claim. 9 DATED: 2/20/2013 EDWARD J. DAVILA United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order of Dismissal 04280Gay_dism.wpd 3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA KENNETH EARL GAY, Case Number CV 12-04280 EJD (PR) Plaintiff, CERTIFICATE OF SERVICE vs. EDMUND BROWN, et al., Defendants. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 2/21/2013 That on ______________________________, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s)hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) inter-office delivery receptacle located in the Clerk's office. Kenneth Earl Gay D-15601 San Quentin State Prison San Quentin, CA 94974 2/21/2013 DATED: ________________________ Richard W. Wieking, Clerk /s/By: Elizabeth Garcia, Deputy Clerk

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