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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KENNETH EARL GAY,
Plaintiff,

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vs.

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EDMUND BROWN, et al.,
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Defendants.
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No. C 12-04280 EJD (PR)

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ORDER OF DISMISSAL

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Plaintiff, a state prisoner at San Quentin State Prison, filed the instant civil rights

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action in pro se pursuant to 42 U.S.C. § 1983. Plaintiff’s original complaint was

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dismissed with leave to amend and Plaintiff has filed an amended complaint.

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DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify

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any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a

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claim upon which relief may be granted or seek monetary relief from a defendant who is
Order of Dismissal
04280Gay_dism.wpd

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immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be

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liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Plaintiff’s Claims
Plaintiff’s original complaint named as Defendants all justices on the California

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Supreme Court, several former governors and various legal associations. Plaintiff, who

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was sentenced to death, stated that the appellate process for death penalty cases in

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California is broken as it takes far too long to appoint counsel, for a legal decision, the

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decisions are political and former Chief Justice Rose Bird was removed for political

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reasons because she opposed the death penalty. Plaintiff also discussed his displeasure in

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the manner federal courts process habeas cases. These allegations failed to set forth a

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cognizable claim and Plaintiff was provided an opportunity to amend.1
The amended complaint repeats the same allegations of the original complaint and

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also challenges Plaintiff’s underlying conviction. Plaintiff’s general and wide ranging

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claim that the California justice system is broken is far too vague and fails to state a claim

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for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 570 (2007). ) ("[A] complaint must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'"). To the

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extent Plaintiff wishes to challenge the evidence of his conviction he must do so in a

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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

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habeas petition. The complaint will be dismissed and as Plaintiff has already been

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provided an opportunity to amend, and as it is clear that further amendment would be

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futile, this case is dismissed without leave to amend. See Lopez v. Smith, 203 F.3d 1122,

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1129 (9th Cir. 2000).

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CONCLUSION

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For the foregoing reasons, the complaint is DISMISSED without leave to amend

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for failure to state a claim.

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DATED:

2/20/2013

EDWARD J. DAVILA
United States District Judge

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Order of Dismissal
04280Gay_dism.wpd

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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