Hubbard v. CDCR, et al.

Filing 11

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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ZANE HUBBARD, Case No. 1:13-cv-00762 DLB PC 10 Plaintiff, 11 v. 12 13 WARDEN OF WASCO STATE PRISON, et al., 14 ORDER DISMISSING SECOND AMENDED COMPLAINT WITH PREJUDICE FOR FAILURE TO STATE A CLAIM Defendants. (ECF No. 10) 15 16 I. Background 17 Plaintiff Zane Hubbard (“Plaintiff”) is a prisoner in the custody of the California Department 18 of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se in this civil action 19 pursuant to 42 U.S.C. § 1983. He consented to the jurisdiction of the Magistrate Judge on June 3, 20 2013. 21 Plaintiff filed his original complaint on May 22, 2013. (ECF No. 1.) On April 23, 2014, the 22 Court screened the complaint and dismissed it for failure to state a claim. (ECF No. 7.) On May 8, 23 2014, Plaintiff filed a First Amended Complaint (“FAC”). (ECF No. 8.) On May 14, 2015, the 24 Court screened the FAC and dismissed it for failure to state a claim. Plaintiff was granted leave to 25 file a Second Amended Complaint (“SAC”). On June 9, 2015, Plaintiff filed a SAC. (ECF No. 10.) 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1),(2). 3 A complaint must contain “a short and plain statement of the claim showing that the pleader 4 is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 5 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 6 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 7 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 8 claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). While factual 9 allegations are accepted as true, legal conclusions are not. Id. 10 II. Summary of Second Amended Complaint 11 Plaintiff was incarcerated at Wasco State Prison (“WSP”) in Wasco, California and Corcoran 12 State Prison (“CSP”) in Corcoran, California, where the events giving rise to this action occurred. 13 Plaintiff names the following Defendants in this action: President Barack Obama; California State 14 Legislator Anthony Calvin Williams; Pope Francis; Correctional Peace Officer Dunn; the Secretary 15 of Corrections; CDCR Chief Regulation and Policy Manager Timothy Lockwood; Governor 16 Edmund G. Brown; Plaintiff’s mother Mechele S. Williams; Correctional Peace Officer Marmalejo; 17 Correctional Lieutenant T. Drew; and Warden Connie Gipson. 18 Plaintiff alleges the following. Plaintiff complains that he is unlawfully convicted. He further 19 claims he is a gang member who has been wrongfully housed in a transitional housing unit even 20 though he does not qualify for such housing. He alleges that CSP is transitional housing meant to 21 house only inmates that have volunteered to debrief, and Plaintiff has not volunteered to debrief. He 22 claims he should be placed in general population since he is a validated gang member. He alleges he 23 should not be placed in a disciplinary segregation unit in isolation because he is being deprived of all 24 privileges. 25 Plaintiff claims that Defendant Marmalejo deliberately housed him with a transitional housing 26 unit inmate, Noel Garcia, despite the fact that Garcia was not within Plaintiff’s custody level. 27 Plaintiff alleges Defendant Marmalejo failed to abide by California regulations governing 28 assignments of inmates to cells. Inmate Garcia was undergoing debriefing but Plaintiff was refusing 2 1 to undergo debriefing. Because Plaintiff was a gang member and Garcia was undergoing debriefing, 2 Garcia became Plaintiff’s enemy. 3 between Plaintiff and Garcia. The altercation resulted in Plaintiff’s placement in the Secured 4 Housing Unit and validation as a gang member. Plaintiff alleges Marmalejo was the cause. The housing arrangement resulted in a physical altercation 5 Plaintiff claims that Defendant Gipson has allowed employees under her supervision to 6 deprive him of all of his privileges, threatened his life, assaulted him, humiliated him, and harassed 7 him for the purpose of eliciting information from him. 8 Plaintiff alleges that various people, including President Obama and Pope Francis, are 9 commanding him to join a prison gang called the Twenty-Fivers and be placed in protective custody 10 based on religious grounds. 11 Plaintiff claims that he has been forced into a “Stepdown Program” that is designed to provide 12 inmates with an opportunity to debrief or inform officers of illegal conduct. Plaintiff alleges he was 13 told by Defendant Drew that he would not obtain any relief unless he debriefed. He contends his 14 placement in this housing classification or transitional housing unit equates to holding his person for 15 the purpose of self-incrimination. 16 Plaintiff further claims his right to privacy has been breached by the broadcasting of personal 17 information with the intent to embarrass, degrade, and exploit him, during his stay in the transitional 18 housing unit. He alleges that unnamed Defendants have used workgroup technologies with the 19 permission of his family to publish, display, and transmit images of him in violation of his right to 20 privacy. He claims that the images contain defamatory, false, obscene, pornographic, profane, 21 sexually harassing, threatening and discriminatory material. 22 Plaintiff claims there was an unauthorized seizure of money from his account by the Wasco 23 State Prison Accountant. He alleges that Defendant Dunn of CSP went through the computer data 24 and deleted the transaction. He claims the seizure of money was never recovered. 25 Plaintiff alleges that Defendants and their co-workers repeatedly slander and threaten him. He 26 contends that Defendants have slandered his facial tattoos and his Mexican-Native American 27 heritage. He claims Defendants are motivated by racial discrimination. Plaintiff claims Defendant 28 Drew has threatened to sodomize him and to “debrief or die.” 3 1 Plaintiff claims that he is being electronically surveilled in his cell by Defendants Lockwood, 2 Brown, Williams, Gipson, Pope Francis, and President Obama. He claims Defendants surveil his 3 daily activities in a degrading manner and publicize the events with intent to humiliate him into 4 debriefing. 5 III. Analysis 6 A. Eighth Amendment Claims 7 Plaintiff alleges Defendant Marmalejo deliberately housed him with a transitional housing 8 unit inmate despite the fact that the inmate was not of the same custody level. Plaintiff states he was 9 refusing to undergo debriefing and was placed in a cell with an inmate who was being debriefed. 10 Because Plaintiff was choosing to remain a gang member while the other inmate was choosing to 11 debrief and withdraw from gang membership, Plaintiff claims this created an issue of incompatibility 12 which led to a physical altercation. 13 incompatibility and made the housing assignment regardless of the issue. Plaintiff alleges that Defendant Marmalejo knew of the 14 Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, 15 clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 16 2000) (quotation marks and citations omitted), but not every injury that a prisoner sustains while in 17 prison represents a constitutional violation, Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 18 2006) (quotation marks omitted). To maintain an Eighth Amendment claim, a prisoner must show 19 that prison officials were deliberately indifferent to a substantial risk of harm to his health or safety. 20 E.g., Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994); Thomas v. Ponder, 611 F.3d 21 1144, 1150-51 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 2009); Morgan, 22 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 23 Plaintiff has not sufficiently linked Defendant Marmalejo to knowledge and disregard of 24 housing conditions grave enough to support a claim under the Eighth Amendment. Plaintiff cites 25 only the fact that he was refusing to debrief and his cellmate was not. This fact alone does not 26 demonstrate an excessive risk to Plaintiff’s safety. Also, mere negligence on the part of the prison 27 official is not sufficient to establish liability, but rather, the official’s conduct must have been 28 4 1 wanton. Farmer, 511 U.S. at 835. There are no allegations showing Defendant Marmalejo’s actions 2 were done in wanton disregard for Plaintiff’s safety. 3 B. 4 As before, Plaintiff alleges that he is unlawfully convicted. While a challenge to conditions of 5 confinement is properly raised in a civil rights action, a challenge to the fact and/or the duration of 6 confinement must be raised in a petition for writ of habeas corpus. 28 U.S.C. § 2254(a); Badea v. 7 Cox, 931 F.2d 573, 574 (9th Cir. 1991) (citing Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S.Ct. 8 1827, 1833 (1973)); accord Beardslee v. Woodford, 395 F.3d 1064, 1068-69 (9th Cir. 2005) (per 9 curiam). Therefore, to the extent Plaintiff wishes to challenge his conviction, he must do so by filing 10 Challenge to Conviction a petition for writ of habeas corpus. 11 C. Housing Status 12 Plaintiff again alleges that he should be in general population and not in a segregated housing 13 unit. He further claims he has been advised that he must go through debriefing in order to gain 14 placement in a less restrictive housing status. The Due Process Clause protects Plaintiff against the 15 deprivation of liberty without the procedural protections to which he is entitled under the law. 16 Wilkinson v. Austin, 545 U.S. 209, 221 (2005). To state a claim, Plaintiff must first identify the 17 interest at stake. Id. at 221. Liberty interests may arise from the Due Process Clause or from state 18 law. Id. The Due Process Clause itself does not confer on inmates a liberty interest in avoiding 19 more adverse conditions of confinement, id. at 221-22 (citations and quotation marks omitted), and 20 under state law, the existence of a liberty interest created by prison regulations is determined by 21 focusing on the nature of the condition of confinement at issue, id. at 222-23 (citing Sandin v. 22 Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293 (1995)) (quotation marks omitted). Liberty interests 23 created by prison regulations are generally limited to freedom from restraint which imposes atypical 24 and significant hardship on the inmate in relation to the ordinary incidents of prison life. Wilkinson, 25 545 U.S. at 221 (citing Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476 26 F.3d 716, 718 (9th Cir. 2007). 27 Again, there is no support for a finding that Plaintiff has a protected liberty interest in being 28 incarcerated at a particular correctional facility or on a particular yard level. Myron, 476 F.3d at 5 1 718; May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997); Meachum v. Fano, 427 U.S. 215, 224-25 2 (1976). That a higher security yard is more restrictive or houses more violent inmates is not 3 sufficient, in and of itself, to demonstrate that it is a condition which imposes atypical and significant 4 hardship on an inmate in relation to the ordinary incidents of prison life. Id. Therefore, Plaintiff 5 fails to state a due process claim. 6 As to Plaintiff’s placement in segregated housing, the assignment of validated gang members 7 and associates to a secured housing unit is an administrative measure rather than a disciplinary 8 measure, and is “essentially a matter of administrative discretion.” Bruce v. Ylst, 351 F.3d 1283, 9 1287 (9th Cir. 2003) (quoting Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997)); accord 10 Castro, 712 F.3d at 1310. Considering Plaintiff’s allegations in his SAC concerning his placement in 11 segregated housing, Plaintiff did not have a protected liberty interest at stake and he may not pursue 12 a due process claim arising from that event. Resnick v. Hayes, 213 F.3d 443, 448-49 (9th Cir. 13 2000); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997). 14 D. Miscellaneous Conclusory Allegations 15 Plaintiff also raises a number of allegations that are conclusory or fanciful. Under section 16 1983, Plaintiff must link the named defendants to the participation in the violation at issue. Iqbal, 17 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); 18 Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 19 934 (9th Cir. 2002). Liability may not be imposed under a theory of respondeat superior, and some 20 causal connection between the conduct of each named defendant and the violation at issue must 21 exist. Iqbal, 556 U.S. at 676-77; Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 22 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc); 23 Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012). 24 Plaintiff claims that Defendant Gipson allowed her employees under her supervision to 25 deprive him of all of his privileges, threatened his life, assaulted him, humiliated him, and harassed 26 him. Plaintiff submits no factual support for these conclusory allegations, and he fails to allege how 27 Defendant Gipson was responsible for such actions. As noted above, liability may not be imposed 28 solely on the basis of respondeat superior. 6 1 Plaintiff alleges his privacy rights were breached by the broadcasting, publishing and 2 displaying of his personal information and images that were defamatory, false, obscene, 3 pornographic, profane, sexually harassing, threatening, and discriminatory. He does not name any 4 Defendants, but claims his mother is somehow involved. He further alleges that various people 5 including President Obama and Pope Francis are commanding him to join a prison gang. He also 6 claims that unnamed Defendants have slandered him based on his facial tattoos and Mexican-Native 7 American heritage. Plaintiff claims that Defendant Drew has threatened to sodomize him. Also, 8 Plaintiff claims that an unauthorized seizure of money took place at Wasco State Prison. He then 9 claims that Defendant Dunn at CSP went through computer data and deleted the transaction. He 10 offers no details on the transaction such as when it occurred, what was seized, and by whom. 11 Finally, he claims he is being electronically surveilled by Defendants Lockwood, Brown, Williams, 12 Gipson, Pope Francis, and President Obama in violation of his rights in order to humiliate him into 13 debriefing. Plaintiff’s several allegations are entirely conclusory. In addition, the Court is not 14 required to accept fanciful or otherwise implausible allegations such as his allegations that President 15 Obama and Pope Francis are electronically surveilling him or commanding him to join a prison 16 gang. See Dahlia v. Rodriguez, 735 F.3d 1060, 1076 (9th Cir. 2013), cert. denied, 134 S.Ct. 1283 17 (2014); Blantz v. California Dep’t of Corr. and Rehab., 727 F.3d 917, 920 (9th Cir. 2013). 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 7 1 IV. Conclusion and Order 2 Plaintiff fails to state any cognizable federal claims against any Defendants. Plaintiff was 3 previously provided with multiple notices of the deficiencies and opportunities to amend, and based 4 on the nature of the deficiencies at issue, further leave to amend is not warranted. Akhtar v. Mesa, 5 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 6 Accordingly, IT IS HEREBY ORDERED that the Second Amended Complaint is 7 DISMISSED WITH PREJUDICE for failure to state a claim. This constitutes a strike within the 8 meaning of 28 U.S.C. § 1915(g). 9 This terminates this action in its entirety. 10 11 12 IT IS SO ORDERED. Dated: April 20, 2016 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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