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Sconce v. State

United States District Court, E.D. California

July 22, 2019

DAVID SCONCE, Plaintiff,
v.
STATE OF CALIFORNIA, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 1983. On March 4, 2019, the court screened plaintiff's complaint as the court is required to do under 28 U.S.C. §1915A(a). The court dismissed plaintiff's complaint with leave to amend. Plaintiff has now filed an amended complaint.

         As plaintiff already knows, the court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

         In order to avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions, ” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

         As in his original complaint, plaintiff challenges the fact that he is still in custody and he seeks injunctive relief and damages. As plaintiff was informed previously:

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 which plaintiff would seek under 28 U.S.C. § 2254. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Also, to the extent plaintiff seeks damages, plaintiff is informed he cannot proceed on a §1983 claim for damages if the claim implies the invalidity of his conviction or sentence. Heck v. Humphrey, 512 U.S. 477, 487 (1994).

         As with his original complaint, plaintiff fails to sate a claim upon which relief can be granted in his amended complaint. Therefore, the amended complaint must be dismissed and granting leave to amend a second time appears futile. Plaintiff might consider initiating an action under 28 U.S.C. §2254 for a writ of habeas corpus and the court will direct the Clerk of the Court to send plaintiff the court's form-application for a writ of habeas corpus by California inmates. But, plaintiff is advised that before he can bring a petition for writ of habeas corpus under 28 U.S.C. §2254, he must exhaust state court remedies with respect to all claims raised, as exhaustion is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). The exhaustion requirement is satisfied by providing the California Supreme Court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971).

         Finally, in his amended complaint, plaintiff again seeks the appointment of counsel. For reasons stated in the court's January 10, 2019 order and in light of the fact that the court is recommending dismissal of plaintiff's amended complaint, the request for appointment of counsel will be denied.

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

1. Plaintiff's request for the appointment of counsel is denied;
2. The Clerk of the Court shall assign a district court judge to this case; and
3. The Clerk of the Court shall send plaintiff the court's form-application for a writ of habeas corpus by ...

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