Hubbard v. CDCR, et al.
Filing
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ORDER DISMISSING SECOND AMENDED COMPLAINT With Prejudice for Failure to State a Claim signed by Magistrate Judge Sandra M. Snyder on 4/20/2016. CASE CLOSED. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ZANE HUBBARD,
Case No. 1:13-cv-00762 DLB PC
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Plaintiff,
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v.
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WARDEN OF WASCO STATE PRISON,
et al.,
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ORDER DISMISSING SECOND
AMENDED COMPLAINT WITH
PREJUDICE FOR FAILURE TO STATE A
CLAIM
Defendants.
(ECF No. 10)
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I.
Background
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Plaintiff Zane Hubbard (“Plaintiff”) is a prisoner in the custody of the California Department
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of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se in this civil action
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pursuant to 42 U.S.C. § 1983. He consented to the jurisdiction of the Magistrate Judge on June 3,
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2013.
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Plaintiff filed his original complaint on May 22, 2013. (ECF No. 1.) On April 23, 2014, the
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Court screened the complaint and dismissed it for failure to state a claim. (ECF No. 7.) On May 8,
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2014, Plaintiff filed a First Amended Complaint (“FAC”). (ECF No. 8.) On May 14, 2015, the
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Court screened the FAC and dismissed it for failure to state a claim. Plaintiff was granted leave to
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file a Second Amended Complaint (“SAC”). On June 9, 2015, Plaintiff filed a SAC. (ECF No. 10.)
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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. Id. § 1915A(b)(1),(2).
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A complaint must contain “a short and plain statement of the claim showing that the pleader
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is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
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U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a
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claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). While factual
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allegations are accepted as true, legal conclusions are not. Id.
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II.
Summary of Second Amended Complaint
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Plaintiff was incarcerated at Wasco State Prison (“WSP”) in Wasco, California and Corcoran
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State Prison (“CSP”) in Corcoran, California, where the events giving rise to this action occurred.
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Plaintiff names the following Defendants in this action: President Barack Obama; California State
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Legislator Anthony Calvin Williams; Pope Francis; Correctional Peace Officer Dunn; the Secretary
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of Corrections; CDCR Chief Regulation and Policy Manager Timothy Lockwood; Governor
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Edmund G. Brown; Plaintiff’s mother Mechele S. Williams; Correctional Peace Officer Marmalejo;
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Correctional Lieutenant T. Drew; and Warden Connie Gipson.
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Plaintiff alleges the following. Plaintiff complains that he is unlawfully convicted. He further
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claims he is a gang member who has been wrongfully housed in a transitional housing unit even
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though he does not qualify for such housing. He alleges that CSP is transitional housing meant to
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house only inmates that have volunteered to debrief, and Plaintiff has not volunteered to debrief. He
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claims he should be placed in general population since he is a validated gang member. He alleges he
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should not be placed in a disciplinary segregation unit in isolation because he is being deprived of all
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privileges.
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Plaintiff claims that Defendant Marmalejo deliberately housed him with a transitional housing
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unit inmate, Noel Garcia, despite the fact that Garcia was not within Plaintiff’s custody level.
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Plaintiff alleges Defendant Marmalejo failed to abide by California regulations governing
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assignments of inmates to cells. Inmate Garcia was undergoing debriefing but Plaintiff was refusing
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to undergo debriefing. Because Plaintiff was a gang member and Garcia was undergoing debriefing,
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Garcia became Plaintiff’s enemy.
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between Plaintiff and Garcia. The altercation resulted in Plaintiff’s placement in the Secured
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Housing Unit and validation as a gang member. Plaintiff alleges Marmalejo was the cause.
The housing arrangement resulted in a physical altercation
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Plaintiff claims that Defendant Gipson has allowed employees under her supervision to
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deprive him of all of his privileges, threatened his life, assaulted him, humiliated him, and harassed
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him for the purpose of eliciting information from him.
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Plaintiff alleges that various people, including President Obama and Pope Francis, are
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commanding him to join a prison gang called the Twenty-Fivers and be placed in protective custody
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based on religious grounds.
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Plaintiff claims that he has been forced into a “Stepdown Program” that is designed to provide
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inmates with an opportunity to debrief or inform officers of illegal conduct. Plaintiff alleges he was
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told by Defendant Drew that he would not obtain any relief unless he debriefed. He contends his
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placement in this housing classification or transitional housing unit equates to holding his person for
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the purpose of self-incrimination.
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Plaintiff further claims his right to privacy has been breached by the broadcasting of personal
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information with the intent to embarrass, degrade, and exploit him, during his stay in the transitional
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housing unit. He alleges that unnamed Defendants have used workgroup technologies with the
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permission of his family to publish, display, and transmit images of him in violation of his right to
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privacy. He claims that the images contain defamatory, false, obscene, pornographic, profane,
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sexually harassing, threatening and discriminatory material.
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Plaintiff claims there was an unauthorized seizure of money from his account by the Wasco
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State Prison Accountant. He alleges that Defendant Dunn of CSP went through the computer data
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and deleted the transaction. He claims the seizure of money was never recovered.
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Plaintiff alleges that Defendants and their co-workers repeatedly slander and threaten him. He
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contends that Defendants have slandered his facial tattoos and his Mexican-Native American
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heritage. He claims Defendants are motivated by racial discrimination. Plaintiff claims Defendant
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Drew has threatened to sodomize him and to “debrief or die.”
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Plaintiff claims that he is being electronically surveilled in his cell by Defendants Lockwood,
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Brown, Williams, Gipson, Pope Francis, and President Obama. He claims Defendants surveil his
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daily activities in a degrading manner and publicize the events with intent to humiliate him into
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debriefing.
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III.
Analysis
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A.
Eighth Amendment Claims
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Plaintiff alleges Defendant Marmalejo deliberately housed him with a transitional housing
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unit inmate despite the fact that the inmate was not of the same custody level. Plaintiff states he was
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refusing to undergo debriefing and was placed in a cell with an inmate who was being debriefed.
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Because Plaintiff was choosing to remain a gang member while the other inmate was choosing to
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debrief and withdraw from gang membership, Plaintiff claims this created an issue of incompatibility
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which led to a physical altercation.
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incompatibility and made the housing assignment regardless of the issue.
Plaintiff alleges that Defendant Marmalejo knew of the
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Prison officials have a duty to ensure that prisoners are provided adequate shelter, food,
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clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
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2000) (quotation marks and citations omitted), but not every injury that a prisoner sustains while in
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prison represents a constitutional violation, Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.
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2006) (quotation marks omitted). To maintain an Eighth Amendment claim, a prisoner must show
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that prison officials were deliberately indifferent to a substantial risk of harm to his health or safety.
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E.g., Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994); Thomas v. Ponder, 611 F.3d
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1144, 1150-51 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 2009); Morgan,
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465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
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Plaintiff has not sufficiently linked Defendant Marmalejo to knowledge and disregard of
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housing conditions grave enough to support a claim under the Eighth Amendment. Plaintiff cites
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only the fact that he was refusing to debrief and his cellmate was not. This fact alone does not
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demonstrate an excessive risk to Plaintiff’s safety. Also, mere negligence on the part of the prison
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official is not sufficient to establish liability, but rather, the official’s conduct must have been
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wanton. Farmer, 511 U.S. at 835. There are no allegations showing Defendant Marmalejo’s actions
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were done in wanton disregard for Plaintiff’s safety.
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B.
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As before, Plaintiff alleges that he is unlawfully convicted. While a challenge to conditions of
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confinement is properly raised in a civil rights action, a challenge to the fact and/or the duration of
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confinement must be raised in a petition for writ of habeas corpus. 28 U.S.C. § 2254(a); Badea v.
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Cox, 931 F.2d 573, 574 (9th Cir. 1991) (citing Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S.Ct.
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1827, 1833 (1973)); accord Beardslee v. Woodford, 395 F.3d 1064, 1068-69 (9th Cir. 2005) (per
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curiam). Therefore, to the extent Plaintiff wishes to challenge his conviction, he must do so by filing
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Challenge to Conviction
a petition for writ of habeas corpus.
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C.
Housing Status
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Plaintiff again alleges that he should be in general population and not in a segregated housing
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unit. He further claims he has been advised that he must go through debriefing in order to gain
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placement in a less restrictive housing status. The Due Process Clause protects Plaintiff against the
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deprivation of liberty without the procedural protections to which he is entitled under the law.
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Wilkinson v. Austin, 545 U.S. 209, 221 (2005). To state a claim, Plaintiff must first identify the
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interest at stake. Id. at 221. Liberty interests may arise from the Due Process Clause or from state
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law. Id. The Due Process Clause itself does not confer on inmates a liberty interest in avoiding
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more adverse conditions of confinement, id. at 221-22 (citations and quotation marks omitted), and
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under state law, the existence of a liberty interest created by prison regulations is determined by
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focusing on the nature of the condition of confinement at issue, id. at 222-23 (citing Sandin v.
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Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293 (1995)) (quotation marks omitted). Liberty interests
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created by prison regulations are generally limited to freedom from restraint which imposes atypical
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and significant hardship on the inmate in relation to the ordinary incidents of prison life. Wilkinson,
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545 U.S. at 221 (citing Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476
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F.3d 716, 718 (9th Cir. 2007).
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Again, there is no support for a finding that Plaintiff has a protected liberty interest in being
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incarcerated at a particular correctional facility or on a particular yard level. Myron, 476 F.3d at
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718; May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997); Meachum v. Fano, 427 U.S. 215, 224-25
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(1976). That a higher security yard is more restrictive or houses more violent inmates is not
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sufficient, in and of itself, to demonstrate that it is a condition which imposes atypical and significant
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hardship on an inmate in relation to the ordinary incidents of prison life. Id. Therefore, Plaintiff
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fails to state a due process claim.
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As to Plaintiff’s placement in segregated housing, the assignment of validated gang members
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and associates to a secured housing unit is an administrative measure rather than a disciplinary
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measure, and is “essentially a matter of administrative discretion.” Bruce v. Ylst, 351 F.3d 1283,
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1287 (9th Cir. 2003) (quoting Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997)); accord
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Castro, 712 F.3d at 1310. Considering Plaintiff’s allegations in his SAC concerning his placement in
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segregated housing, Plaintiff did not have a protected liberty interest at stake and he may not pursue
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a due process claim arising from that event. Resnick v. Hayes, 213 F.3d 443, 448-49 (9th Cir.
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2000); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997).
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D.
Miscellaneous Conclusory Allegations
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Plaintiff also raises a number of allegations that are conclusory or fanciful. Under section
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1983, Plaintiff must link the named defendants to the participation in the violation at issue. Iqbal,
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556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010);
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Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930,
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934 (9th Cir. 2002). Liability may not be imposed under a theory of respondeat superior, and some
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causal connection between the conduct of each named defendant and the violation at issue must
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exist. Iqbal, 556 U.S. at 676-77; Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062,
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1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc);
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Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).
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Plaintiff claims that Defendant Gipson allowed her employees under her supervision to
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deprive him of all of his privileges, threatened his life, assaulted him, humiliated him, and harassed
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him. Plaintiff submits no factual support for these conclusory allegations, and he fails to allege how
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Defendant Gipson was responsible for such actions. As noted above, liability may not be imposed
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solely on the basis of respondeat superior.
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Plaintiff alleges his privacy rights were breached by the broadcasting, publishing and
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displaying of his personal information and images that were defamatory, false, obscene,
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pornographic, profane, sexually harassing, threatening, and discriminatory. He does not name any
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Defendants, but claims his mother is somehow involved. He further alleges that various people
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including President Obama and Pope Francis are commanding him to join a prison gang. He also
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claims that unnamed Defendants have slandered him based on his facial tattoos and Mexican-Native
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American heritage. Plaintiff claims that Defendant Drew has threatened to sodomize him. Also,
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Plaintiff claims that an unauthorized seizure of money took place at Wasco State Prison. He then
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claims that Defendant Dunn at CSP went through computer data and deleted the transaction. He
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offers no details on the transaction such as when it occurred, what was seized, and by whom.
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Finally, he claims he is being electronically surveilled by Defendants Lockwood, Brown, Williams,
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Gipson, Pope Francis, and President Obama in violation of his rights in order to humiliate him into
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debriefing. Plaintiff’s several allegations are entirely conclusory. In addition, the Court is not
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required to accept fanciful or otherwise implausible allegations such as his allegations that President
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Obama and Pope Francis are electronically surveilling him or commanding him to join a prison
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gang. See Dahlia v. Rodriguez, 735 F.3d 1060, 1076 (9th Cir. 2013), cert. denied, 134 S.Ct. 1283
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(2014); Blantz v. California Dep’t of Corr. and Rehab., 727 F.3d 917, 920 (9th Cir. 2013).
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IV.
Conclusion and Order
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Plaintiff fails to state any cognizable federal claims against any Defendants. Plaintiff was
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previously provided with multiple notices of the deficiencies and opportunities to amend, and based
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on the nature of the deficiencies at issue, further leave to amend is not warranted. Akhtar v. Mesa,
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698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
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Accordingly, IT IS HEREBY ORDERED that the Second Amended Complaint is
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DISMISSED WITH PREJUDICE for failure to state a claim. This constitutes a strike within the
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meaning of 28 U.S.C. § 1915(g).
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This terminates this action in its entirety.
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IT IS SO ORDERED.
Dated:
April 20, 2016
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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