Hubbard v. CDCR, et al.

Filing 9

ORDER DISMISSING 8 FIRST AMENDED COMPLAINT for Failure to State a Claim WITH LEAVE TO AMEND signed by Magistrate Judge Dennis L. Beck on 5/14/2015. Second Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (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-AWI-DLB PC

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Plaintiff,
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v.

ORDER DISMISSING FIRST AMENDED
COMPLAINT FOR FAILURE TO STATE A
CLAIM, WITH LEAVE TO AMEND

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WARDEN OF WASCO STATE PRISON,
et al.,

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(ECF No. 8)

Defendants.

RESPONSE DUE WITHIN THIRTY DAYS
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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. Plaintiff filed his original complaint on May 22, 2013. (ECF No. 1.)

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On April 23, 2014, the Court screened the complaint and dismissed it for failure to state a claim.

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(ECF No. 7.) Plaintiff was granted leave to file an amended complaint. On May 8, 2014, Plaintiff

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filed a First Amended Complaint (“FAC”). (ECF No. 8.)

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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 First 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 Warden of Wasco State Prison, Correctional Counselor Graves-Bank, Connie

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Gipson, Timothy Lockwood, Hirachetta, Dunn, Flores, Gentry and Drew as Defendants in this

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action.

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Plaintiff alleges the following. Plaintiff complains that he is unlawfully convicted. He claims

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that he is a general population gang member who has been wrongfully housed in an SNY facility.

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Plaintiff states Defendants have done so even though Plaintiff has “SNY” enemy concerns, and this

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has resulted in various incidents including being shot at with a rubber bullet. Plaintiff states he has

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been transferred to the SNY facility because of his facial tattoos and his Mexican and Native

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American heritage.

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Plaintiff further alleges that many officers have contacted his family members to gather

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humiliating information about his childhood to taunt him with. He claims the officers share this

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information with other inmates who also taunt him. He claims officers share his legal confidential

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mail with SNY enemy inmates, who falsify information about him, his conviction, and his alleged

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gang ties.

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Plaintiff complains that authorities on a daily basis sexually harass him, claim they will

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sodomize him, advise him to kill himself, call him names, among other things. Plaintiff complains

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that authorities have shared his social security number, birth certificate, copyrights, naked pictures,

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and other things with SNY inmates in order to blackmail him.

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Plaintiff alleges authorities opened legal confidential mail and withheld a letter in his C-File

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and kept him from attending court. He claims authorities have denied him his right to petition this

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misconduct, and have denied him his right to attend the law library.

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Plaintiff claims that Officer Dunn attempted to cover up missing money. He claims Officers

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Hirachetta and Flores, Sheriff Gentry, Lieutenant Drew, Counselor Graves-Bank, and Warden

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Gipson have opened his legal mail, shared Plaintiff’s personal information, withheld Plaintiff from

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attending court, and sexually harassed him.

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III.

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Analysis
A.

Linkage

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Under section 1983, Plaintiff must link the named defendants to the participation in the

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violation at issue. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011,

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1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). Liability may not be imposed under a theory of

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respondeat superior, and some causal connection between the conduct of each named defendant and

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the violation at issue must exist. Iqbal, 556 U.S. at 676-77; Lemire v. California Dep’t of Corr. and

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Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16

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(9th Cir. 2012) (en banc); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011), cert. denied, 132

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S.Ct. 2101 (2012).

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For the majority of Plaintiff’s allegations, Plaintiff fails to identify any defendant and link that

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defendant to the participation of the violation at issue. Therefore, for those allegations, Plaintiff fails

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to state a claim.

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B.

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Prisoners have “a First Amendment right to send and receive mail.” Witherow v. Paff, 52

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F.3d 264, 265 (9th Cir. 1995). Prison regulations relating to the regulation of incoming mail are

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analyzed under the Turner reasonableness standard set forth in Turner v. Safley, 482 U.S. 78, 89-91

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(1987). Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989). The regulation is valid if it is

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reasonably related to legitimate penological interests. Turner, 482 U.S. at 89. In determining the

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reasonableness of the regulation, court must consider the following factors: (1) whether there is a

First Amendment—Mail Interference

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“valid, rational connection between the regulation and the legitimate government interest put

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forward to justify it,” (2) “whether there are alternative means of exercising the right,” (3) the impact

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that the “accommodation of the asserted constitutional right will have on guards and other inmates,”

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and (4) “the absence of ready alternatives.” Turner, 482 U.S. at 89-90. Isolated incidents of mail

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interference or tampering will not support a claim under section 1983 for violation of plaintiff’s

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constitutional rights. See Davis v. Goord, 320 F.3d 346, 351 (2d. Cir. 2003); Gardner v. Howard,

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109 F.3d 427, 431 (8th Cir. 1997); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990). In

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addition, the mere fact that prison officials open and conduct a visual inspection of a prisoner’s legal

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correspondence does not state a claim for violation of a prisoner’s constitutional rights. See Wolff v.

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McDonnell, 418 U.S. 539, 576-77 (1974); Nordstrom v. Ryan, 762 F.3d 903, 910-11 (9th Cir. 2014);

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Mitchell v. Dupnick, 75 F.3d 517, 523 (9th Cir. 1996).

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As with the original complaint, Plaintiff fails to state a claim for interference with his mail in

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his First Amended Complaint. Plaintiff alleges that Officers Hirachetta and Flores, Sheriff Gentry,

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Counselor Graves-Bank, and Warden Gipson opened his legal mail. Plaintiff however fails to make

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any specific allegations against defendants. To state a claim under § 1983, a plaintiff must allege

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that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights

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secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185

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(9th Cir. 2006). Plaintiff makes no allegations as to how any individual defendant deprived him of

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his rights. Plaintiff states only that Defendants opened his mail and shared personal information

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with others. This is insufficient to state a cause of action. Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550

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U.S. at 570). Accordingly, Plaintiff fails to state a claim for interference with his mail.

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C.

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The Due Process Clause is not violated by the random, unauthorized deprivation of property

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Due Process—Property Deprivation

so long as the state provides an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517,
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533, 104 S.Ct. 3194 (1984); Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). Plaintiff has an

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adequate post-deprivation remedy under California law, and therefore, he may not pursue a due

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process claim arising out of the unlawful confiscation of his personal property. Barnett, 31 F.3d at

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816-17 (citing Cal. Gov’t Code §§810-895). Accordingly, Plaintiff fails to state a due process claim

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for the loss of property.

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D.

Eighth Amendment—Failure to Protect

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To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain . . . .” Rhodes v. Chapman,

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452 U.S. 337, 347 (1981). Although prison conditions may be restrictive and harsh, prison officials

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must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety.

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Id.; Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986); Hoptowit v. Ray, 682 F.2d 1237,

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1246 (9th Cir. 1982). Where a prisoner alleges injuries stemming from unsafe conditions of

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confinement, prison officials may be held liable only if they acted with “deliberate indifference to a

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substantial risk of serious harm.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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The deliberate indifference standard involves an objective and a subjective prong. First, the

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alleged deprivation must be, in objective terms, “sufficiently serious . . . .” Farmer v. Brennan, 511

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U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official

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must “know[] of and disregard[] an excessive risk to inmate health or safety . . . .” Id. at 837. Thus,

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a prison official may be held liable under the Eighth Amendment for denying humane conditions of

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confinement only if he knows that inmates face a substantial risk of harm and disregards that risk by

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failing to take reasonable measures to abate it. Id. at 837-45. Mere negligence on the part of the

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prison official is not sufficient to establish liability, but rather, the official’s conduct must have been

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wanton. Id. at 835.

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Here, Plaintiff fails to state an Eighth Amendment claim against any defendants. Plaintiff

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concludes that CDCR officials knew that housing him with “SNY” inmates placed him in jeopardy

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of physical harm. However, Plaintiff fails to allege any facts as to how defendants knew and

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disregarded an excessive risk to Plaintiff’s safety. Mere negligence on the part of the prison official

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is not sufficient to establish liability, but rather, the official’s conduct must have been wanton.
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Farmer, 511 U.S. at 835. Accordingly, Plaintiff fails to state an Eighth Amendment claim for failure

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to protect.

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E.

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Plaintiff also alleges that he is unlawfully convicted. While a challenge to conditions of

Challenge to Conviction

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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

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v.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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a petition for writ of habeas corpus.

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F.

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The Due Process Clause protects Plaintiff against the deprivation of liberty without the

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procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 221

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(2005). To state a claim, Plaintiff must first identify the interest at stake. Id. at 221. Liberty

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interests may arise from the Due Process Clause or from state law. Id. The Due Process Clause

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itself does not confer on inmates a liberty interest in avoiding more adverse conditions of

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confinement, id. at 221-22 (citations and quotation marks omitted), and under state law, the

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existence of a liberty interest created by prison regulations is determined by focusing on the nature

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of the condition of confinement at issue, id. at 222-23 (citing Sandin v. Conner, 515 U.S. 472, 481-

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84, 115 S.Ct. 2293 (1995)) (quotation marks omitted). Liberty interests created by prison

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regulations are generally limited to freedom from restraint which imposes atypical and significant

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hardship on the inmate in relation to the ordinary incidents of prison life. Wilkinson, 545 U.S. at

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221(citing Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476 F.3d 716,

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718 (9th Cir. 2007).

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Housing Status

In this instance, there is no support for a finding that Plaintiff has a protected liberty interest

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in being incarcerated at a particular correctional facility or on a particular yard level. Myron, 476

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F.3d at 718; May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997); Meachum v. Fano, 427 U.S. 215,

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224-25 (1976). Plaintiff asserts that he is a general population inmate that is housed at a SNY
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facility. 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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IV.

Conclusion and Order

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Plaintiff fails to state any cognizable federal claims against any Defendants. The Court will

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provide Plaintiff with an opportunity to file a second amended complaint curing the deficiencies

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identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended

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complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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If Plaintiff decides to amend, Plaintiff’s amended complaint should be brief, Fed. R. Civ. P.

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8(a), but must state what each named defendant did that led to the deprivation of Plaintiff’s

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constitutional or other federal rights. See Iqbal, 556 U.S. at 678.

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“[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . .”

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Twombly, 550 U.S. at 555.

Although accepted as true, the

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint,

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) overruled in part on other grounds,

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Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. Aug. 29, 2012) (en banc); King v. Atiyeh, 814

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F.2d 565, 567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or

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superseded pleading,” Local Rule 220.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a complaint form;

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2.

Plaintiff’s complaint is dismissed for failure to state a claim, with leave to file an

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amended complaint within thirty (30) days from the date of service of this order;

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Plaintiff may not add any new, unrelated claims to this action via the first amended

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complaint and any attempt to do so may result in an order striking the second amended complaint;

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and

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If Plaintiff fails to comply with this order, the Court will dismiss this action for failure
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to obey a court order and failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

May 14, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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