Hubbard v. Corcoran State Prison et al

Filing 14

FINDINGS AND RECOMMENDATION TO DISMISS ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM re 12 signed by Magistrate Judge Michael J. Seng on 3/20/2015. Referred to Judge Anthony W. Ishii; Objections to F&R due by 4/9/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ZANE HUBBARD,

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Plaintiff,

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v.
CORCORAN STATE PRISON, et al.,

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Defendants.

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CASE NO. 1:13-cv-01511-AWI-MJS (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION WITH PREJUDICE
FOR FAILURE TO STATE A CLAIM
(ECF NO. 12)
FOURTEEN (14) DAY OBJECTION
DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 4 & 12.)
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Plaintiff’s complaint (ECF No. 1) was dismissed for failure to state a claim, but he

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was given leave to amend (ECF No. 8.) Plaintiff’s first amended complaint (ECF No. 9)
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also was dismissed with leave to amend. (ECF No. 10.) Plaintiff’s second amended

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complaint is before the Court for screening. (ECF No. 12.)
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I.

SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

PLEADING STANDARD

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated and (2)

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that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,

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1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

PLAINTIFF’S ALLEGATIONS

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Plaintiff is incarcerated at California State Prison – Corcoran (“CSP-COR”), where

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the acts giving rise to his complaint occurred. He names the following individuals as

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Defendants: (1) Correctional Officer Hirachetta, (2) Correctional Officer Chavez, (3)

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Correctional Officer Flores, (4) Correctional Counselor II Banks-Graves, (5) Correctional

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Counselor II A. Pacillas, and (6) Warden C. Gipson.
Plaintiff’s allegations are fragmented and difficult to follow. They may be

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summarized essentially as follows:
On July 22, 2013, Defendants Flores and Hirachetta walked by Plaintiff’s cell and

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threatened to “take [his] shit.”
On July 26, 2013, Defendant Chavez looked in Plaintiff’s cell and stated, “It’s

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everybody’s business.”

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On May 10, 2013, Defendants Banks-Graves and Pacillas allowed Plaintiff an

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Olsen review1 of his central file. Plaintiff discovered an order from the Fifth District Court

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of Appeals remanding him to Kern County Superior Court for resentencing. Plaintiff

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asked Defendant Banks-Graves why he had not received the letter and why it was in his

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file. Plaintiff asked for a copy of the letter. Defendant Banks-Graves stated she would

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provide Plaintiff a copy but did not do so. Defendant Gipson continued to hold Plaintiff

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despite the letter.

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Plaintiff also saw in his file a sex offender registration form with a forged

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fingerprint. Plaintiff is not a sex offender. When he asked for a copy of the incident report

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or removal of the form, Defendant Pacillas stated that it was a mistake and removed it.

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Plaintiff also saw other forged documents in his file and discovered other documents

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were missing. Defendant Banks-Graves fabricated an explanation for the missing

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documents knowing they were relevant to another civil case filed by Plaintiff.

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In re Olsen, 112 Cal. Rptr. 579 (Cal. Ct. App. 1974).

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On August 1, 2013, Plaintiff received on open envelope from Wells Fargo Bank

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from Defendant Hirachetta. The contents of the enclosed letter, apparently related to an

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account in Plaintiff’s name, were spread around the institution.

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On August 2, 2013, Defendant Chavez walked by Plaintiff’s door and muttered,
“You don’t want it.”
On August 7, 2013, Defendant Flores served Plaintiff a legal letter dated June 16,
2013 (nearly two month delay).
On August 8, 2013, Defendant Hirachetta walked by Plaintiff’s door stating, “I hate
you dude.”

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On August 14, 2013, Defendant Hirachetta gave Plaintiff an open letter from the

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Kern County Superior Court. On the same date, other inmates told Plaintiff that his due

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process rights had been violated and asked Plaintiff what he would do when the

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correctional officers placed him in a step down pilot program against his will.

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On July 15, 2013 and August 12, 2013, Plaintiff filed administrative complaints

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regarding his forced placement in the pilot step down program. His appeal was rejected

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by D. Goree (not a named Defendant). Plaintiff alleges various disagreements with the

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step down program and the prison gang validation process.

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Defendants Flores and Hirachetta infringed on Plaintiff’s rights to confidential

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correspondence and personal mail. They opened his legal mail and spread the contents

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around the institution.

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Plaintiff seeks (1) a declaration that Defendants violated his rights, (2) an

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injunction requiring the California Department of Corrections and Rehabilitation to cease

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harassment, retaliation, and reprisals, (3) a restraining order against the step down

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program, (4) emergency transfer to a “non-SNY” prison, (5) expungement of Plaintiff’s

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gang validation, (6) “discovery of confiscated artwork for comparison issued as a

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subpoena to plaintiff,” (7) compensatory damages, and (8) to “amend” this complaint to

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Hubbard v. United States of America, Case No. 14-cv-905-AWI-GSA.

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IV.

ANALYSIS

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A.

Improper Joinder

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“A party asserting a claim, counterclaim, cross-claim, or third-party claim may join,

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as independent or alternative claims, as many claims as it has against an opposing

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party.” Fed. R. of Civ. P. 18(a). Additionally, “[p]ersons . . . may be joined in one action

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as defendants if . . . any right to relief is asserted against them jointly, severally, or in the

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alternative with respect to or arising out of the same transaction, occurrence, or series of

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transactions or occurrences . . . .” “Thus multiple claims against a single party are fine,

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but Claim A against Defendant 1 should not be joined with unrelated Claim B against

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Defendant 2. Unrelated claims against different defendants belong in different suits, not

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only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s],

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but also to ensure that prisoners pay the required filing fees – for the Prison Litigation

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Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file

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without prepayment of the required fees.” George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007) (citing 28 U.S.C. § 1915(g)).

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Plaintiff’s claims generally are unrelated to one another. They encompass a range

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of complaints: interference with Plaintiff’s legal and other mail, his allegedly forced

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participation in the step down program, his gang validation, inaccuracies in his central

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file, and comments made by correctional staff. The Court’s first screening order advised

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Plaintiff that he is not permitted to bring these unrelated claims in a single action. (ECF

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No. 8.) Indeed, his first amended complaint appeared to focus more narrowly on issues

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relating to interference with his mail. Thus, the Court will review herein only those

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allegations pertaining to Plaintiff’s mail. If Plaintiff wishes to pursue his remaining claims,

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he should do so in separate actions.

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B.

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The amended complaint alleges that Defendants Flores and Hirachetta delivered

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mail to Plaintiff that already was opened and shared the contents of his mail with other

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inmates on multiple occasions. Defendant Banks-Graves allegedly refused to provide

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Plaintiff copies of letters from the Kern County Superior Court maintained in Plaintiff’s

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central file.

First Amendment

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As an initial matter, Plaintiff’s allegations do not sufficiently link any of the named

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Defendants to interference with his mail. Under § 1983, Plaintiff must demonstrate that

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each named defendant personally participated in the deprivation of his rights. Iqbal, 556

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U.S. 662, 676-77 (2009); Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th

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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). The allegation that Defendants Hirachetta

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and Flores delivered open mail to Plaintiff is insufficient to allege they were responsible

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for opening the mail. Plaintiff also fails to explain why these Defendants should be held

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responsible for communicating the contents of his mail to other inmates. Likewise, the

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allegation

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correspondence in his central file does not establish that Banks-Graves was responsible

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for withholding correspondence from Plaintiff in the first instance.

that

Defendant

Banks-Graves

did

not

provide

Plaintiff

copies

of

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Additionally, even if linkage had been established, Plaintiff’s allegations fail to

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state a claim. Prisoners have a First Amendment right to receive mail. Prison Legal

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News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (citations omitted). The right is

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subject to substantial limitation, however, and a regulation or policy infringing on the right

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will be upheld if it is reasonably related to legitimate penological interests. Id. (citing

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Turner v. Safley, 482 U.S. 78, 89 (1987)). Defendants may inspect Plaintiff’s non-legal

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mail without violating Plaintiff’s constitutional rights. Smith v. Boyd, 945 F.2d 1041, 1043

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(9th Cir. 1991). However, prison officials may not read mail from inmates’ attorneys.

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Nordstrom v. Ryan, 762 F.3d 903, 909-11 (9th Cir. 2014) (reading inmate’s letter to

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counsel states Sixth Amendment claim).

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None of the mail Plaintiff alleges was tampered with constitutes legal mail. Mail

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from a bank clearly is not legal mail, and mail from a court is not considered legal mail

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under federal law. Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996). Thus, prison

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officials had broad latitude to open and inspect Plaintiff’s mail, so long as doing so was

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reasonably related to legitimate penological interests.

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None of the facts alleged by Plaintiff indicate an absence of legitimate penological

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interests. Plaintiff previously was advised that he was required to explain exactly how his

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mail was tampered with, when, where, and who was responsible, what if any reasons

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were given, and Plaintiff’s basis for believing alleged facts to be true. He has not done

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so.

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isolated occurrence. Limited incidents of mail interference or tampering do not support a

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claim for violation of Plaintiff's constitutional rights. See Davis v. Goord, 320 F.3d 346,

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351 (2d. Cir. 2003); Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997); Smith v.

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Maschner, 899 F.2d 940, 944 (10th Cir. 1990).

Nor has he alleged facts to demonstrate that the tampering was more than an

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Plaintiff has provided insufficient facts for the Court to determine that the named

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Defendants tampered with his mail without a reasonable and legitimate penological

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interest. Plaintiff previously was advised of the pleading requirements, and his second

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amended complaint fails to cure the noted deficiencies. His failure to do so is reasonably

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construed as reflecting his inability to successfully amend. Accordingly, further leave to

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amend would be futile and should be denied.

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C.

Request to Consolidate

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Federal Rule of Civil Procedure 42(a) permits the court to consolidate actions

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involving a common question of law or fact, and consolidation is proper when it serves

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the purposes of judicial economy and convenience. “The district court has broad

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discretion under this rule to consolidate cases pending in the same district.” Investors

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Research Co. v. United States District Court for the Central District of California, 877

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F.2d 777 (9th Cir. 1989). In determining whether to consolidate actions, the court weighs

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the interest of judicial convenience against the potential for delay, confusion, and

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prejudice caused by consolidation. Southwest Marine, Inc., v. Triple A. Mach. Shop, Inc.,

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720 F. Supp. 805, 807 (N.D. Cal. 1989).

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Plaintiff moves to consolidate this action with Case No. 14-cv-905-AWI-GSA. He

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does not explain how the cases share common questions of law and fact or how

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consolidation would result in economy and convenience. Moreover, the Court finds that

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the cases cannot share common questions of law or fact because there is no cognizable

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claim in this action and Case No. 14-cv-905-AWI-GSA is closed.
Accordingly, Plaintiff’s request to consolidate should be denied.

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V.

CONCLUSION AND RECOMMENDATION

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Plaintiff’s second amended complaint fails to state a cognizable claim. He

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previously was advised of pleading deficiencies and afforded the opportunity to correct

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them. He failed to do so. Any further leave to amend reasonably appears futile and

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should be denied.

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The undersigned recommends that the action be dismissed with prejudice, that

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dismissal count as a strike pursuant to 28 U.S.C. § 1915(g), and that the Clerk of the

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Court terminate any and all pending motions and close the case.

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The findings and recommendation will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with the findings and recommendation, the

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parties may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendation.” A party may respond

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to another party’s objections by filing a response within fourteen (14) days after being

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served with a copy of that party’s objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

March 20, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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