Hubbard v. Gipson, et al.
Filing
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FINDINGS and RECOMMENDATIONS recommending that this Case Should be DISMISSED as Barred by Heck v. Humphry, 512 U.S. 477 (1994) and for Failure to State a Claim and that 14 Plaintiff's Motion for Reconsideration be DENIED re 10 Second Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Jennifer L. Thurston on 10/16/2014. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)
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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.
GIPSON, et al.,
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Case No. 1:14-cv-00042-AWI-JLT (PC)
FINDINGS AND RECOMMENDATION
TO DISMISS CASE AS BARRED BY
HECK V. HUMPHRY, 512 U.S. 477 (1994)
AND FOR FAILURE TO STATE A CLAIM
(Docs. 1, 9, 10, 13, 14)
Defendants.
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I. Background
In his Second Amended Complaint, Zane Hubbard again seeks to challenge the legality or
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length of his prison sentence and, in particular, seeks his release from custody. (Doc. 10.)
Despite being warned in the order that dismissed his First Amended Complaint of the
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parameters and application of Heck v. Humphrey, 512 U.S. 477, 487-88 (1994) to actions under
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section 1983, Plaintiff persists in complaining of the fact of his imprisonment and to seek his
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release in his verbose and prolix Second Amended Complaint.1
Thus, on August 22, 2014, the Court ordered Plaintiff to show cause in writing why this
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action should not be dismissed as barred by Heck v. Humphrey. (Doc. 13.) On September 8,
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The Second Amended Complaint contains nineteen pages of pleading and one hundred forty-eight pages of
exhibits. (Doc. 10.) Specific factual allegations only make up approximately a page and a half of the nineteen pages
of pleadings. (Id., at 8:24-10:3.)
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2014, Plaintiff filed his response which he titled as a motion for reconsideration. (Doc. 14.)
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II. The Order to Show Cause -- Heck v. Humphrey
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The OSC reminded Plaintiff that when one challenges the legality or duration of his
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custody, or raises a constitutional challenge which could entitle him to an earlier release, the sole
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federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v.
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Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking
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damages for an allegedly unconstitutional conviction or imprisonment, "a § 1983 plaintiff must
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prove that the conviction or sentence has been reversed on direct appeal, expunged by executive
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order, declared invalid by a state tribunal authorized to make such determination, or called into
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question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck v.
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Humphrey, 512 U.S. 477, 487-88 (1994). "A claim for damages bearing that relationship to a
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conviction or sentence that has not been so invalidated is not cognizable under § 1983." Id. at
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488.
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In his response to the OSC, Plaintiff states that he is pursuing his habeas corpus claims in
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other actions. (Doc. 14, p.2.) However, despite the pendency of those two actions and being
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advised that claims which may lead to his earlier release are barred in an action under § 1983, in
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his OSC response, Plaintiff continues to assert that he is "convicted on an arbitrary imprisonment"
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(id., p. 1) and that he is "beyond a reasonable doubt, falsely imprisoned, and because of [his] false
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imprisonment, the refuted civil rights violation is inhumane" (id.). Plaintiff further states that he
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"go[es] on about Guantanimo [sic] Bay, the Geneva Conventions interwoven with [his]
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arguments because the Eastern District Courts and CDCR seem to think Plaintiff has no rights
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and you can mistreat me which is not true. The Magna Carta decreed that no man would suffer
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the restraint Plaintiff currently suffers." (Id., at p. 2.) Thus, clearly, Plaintiff is complaining
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about his conviction and confinement and has failed to show cause why this action should not be
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dismissed as barred by Heck.
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However, even if this action were not barred by Heck, despite having been given the
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applicable pleading standards twice (see Docs. 7, 9), the Second Amended Complaint fails to
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state a cognizable claim upon which to allow this action to proceed.
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III. The Second Amended Complaint
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A.
Screening Requirement
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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, malicious, fail to state a claim upon which relief may be granted, or that seek monetary
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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C.
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§ 1915(e)(2)(B)(i)-(iii).
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B.
Summary of the Second Amended Complaint
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Plaintiff complains of acts that occurred while he was an inmate at California State Prison
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("CSP") in Corcoran, California. Plaintiff names President Barrack Obama, Officer Usery of the
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Bakersfield Police Department, Corcoran's IGI Captain; Eastern District Court of California, the
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FBI, the Department of Justice, and the Solicitor General as the defendants in this action. As
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discussed below, the majority of these named Defendants are entitled to immunity on Plaintiff's
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claims. Further, as in the original and First Amended Complaint, Plaintiff fails to link the
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majority of the named defendants to his allegations and makes general references to "they," "the
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officials," and "authorities." The only Defendant that Plaintiff links to his factual allegations are
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the IGI Captain and the Solicitor General, but his allegations against them, as discussed below,
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are not facially plausible. Further, Plaintiff seeks to challenge various broad-scale activities such
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as "genocidal activity by persons under color of the United States Law who have abused power,
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subjecting or caused to be subjected, Plaintiff [Hubbard, Zane] a citizen of the United States of
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America to Sterilization, asexualization [sic] of a parolee for existing, (Re: [53 A.L.R. 3d 960]
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depriving Plaintiff of my citizenship . . . " and various other legal conclusions, but fails to support
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them with specific factual allegations. (See Doc. 10, p. 3.)
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The sparse factual allegations that Plaintiff makes are generally nonsensical and facially
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implausible and/or complain of esoteric activities that are not linked to any Defendant(s) in this
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action. To wit: "through electorconvlusive therapy, IGI Lieutenant S. Pina, during daily
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interrogations threatened to 'kill me' and 'set me up,' as a means to insteal [sic] fear in Petitioner;"
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through the same line of conduct, IGI LT. J.S. Garcia told me to 'fuck my mom' in Spanish in
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order to anger me so his unidentified captain of IGI can galvanize me through the ect [sic]
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torture;" "the Superintendent of Corcoran on a daily basis calls Plaintiff a 'disgrace' and states I
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have 'tattoos on my face,' he calls me the 'black hand,' the 'Son of God,' and [sic] deserve all the
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torture inflicted upon me;" "the IGI Captain must be the 'pilot,' the head of the interrogation
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torture. If Petitioner tenses in any form or manner he lets loose a buckshot [sic] of slander and
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other harassing verbage [sic] to irritate Plaintiff to act out violently, other times he galvanizes
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Petitioner. Plaintiff wakes up in a state of paralysis to a massive earthquake, or stops breathing in
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my sleep for an undetermined amount of time and wakes up gasping for air other times IGI
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Captain (Defendant) galvanizes Petitioners eyes depriving Plaintiff of sleep, Plaintiff already
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suffers insomnia from long use of methamphetamines;" "the IGI Captain (Defendant) is also
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responsible for holding Petitioner hostage in Corcoran as an 'enemy combatant' literally to the
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SNY inmates. He threatens that Petitioner will not walk out/parole from Corcoran or CDCR
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unless Plaintiff SNYs [sic] and halls [sic] called in favors to legislation [sic] at an attempt to
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obstruct all Petitioners litigations and appeal of unlawful conviction which has resulted in the
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fundamental miscarriage of justice. This behavior, while under the color of authority not only
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violates Petitioner's due process rights, but the Geneva Convention and the Genocide Convention.
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Not to mention, during a surgery in 2007, it is believed that the same IGI Captain ordered the
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implementation of a chip, tracking device '666' in my lower right leg tibia, exactly. This was done
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without my knowledge or consent and was newly discovered in Corcoran, during interrogation,
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Petitioner's lower right foot vibrates. The Department of Corrections also has or has attempted to
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destroy my identity, creative arts, and life as mentioned above and I find reason to believe this is
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genocide." (Doc. 10, 8:24-10:5.) These are the most specific allegations in the Second Amended
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Complaint. All of the other pages either identify parties or discuss various laws, Acts of
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Congress, international conventions, treaties, and the like.
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Among other things, Plaintiff seeks "1) a declaratory judgment that the Defendants' acts
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and practices described herein are genocidal to Petitioner. 2) . . . for a memorandum from the
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Department of Justice ("DOJ") to the CIA interpreting the 'Convention Against Torture,'
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'Nuremberg Tribunal,' the 'Security Counsel Tribunal,' 'United Nations Treaty Series 277,' 'Rome
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Statute of the (ICC),' 'The Nationality Act Provisions,' 'the Hate Crime Act of (1990),' and the Klu
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Klux Klan Act of (1944). . . .." (Id.)
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Despite having repeated opportunity to cure deficiencies and being provided applicable
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pleading standards, Plaintiff has not stated any cognizable claims. It thus appears futile to allow
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further efforts to amend as to do so may encourage fabrication.
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C.
Pleading Requirements
1. Federal Rule of Civil Procedure 8(a)
The prior screening orders have stated that "Rule 8(a)'s simplified pleading standard
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applies to all civil actions, with limited exceptions," none of which applies to section 1983
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actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A
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complaint must contain "a short and plain statement of the claim showing that the pleader is
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entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant
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fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534
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U.S. at 512. Despite being advised of these parameters, the Second Amended Complaint clearly
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violates the brevity requirement of Rule 8 as it ballooned to 167 pages in length when Plaintiff's
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First Amended Complaint was a mere 5 pages and his original Complaint was only 3 pages.
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Further, Plaintiff was also previously admonished that while detailed factual allegations
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are not required, A[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), quoting Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Factual allegations are accepted as true, but
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legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969
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(9th Cir. 2009); Twombly, 550 U.S. at 556-557. Plaintiff was warned that he must set forth
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Asufficient factual matter, accepted as true, to >state a claim that is plausible on its face.=@ Iqbal,
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556 U.S. at 678, quoting Twombly, 550 U.S. at 555. While Aplaintiffs [now] face a higher burden
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of pleadings facts . . ,@ Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of
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pro se prisoners are still construed liberally and are afforded the benefit of any doubt. Hebbe v.
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Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, courts are not required to indulge
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unwarranted inferences. Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)
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(internal quotation marks and citation omitted). "[A] liberal interpretation of a civil rights
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complaint may not supply essential elements of the claim that were not initially pled." Bruns v.
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Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents,
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673 F.2d 266, 268 (9th Cir. 1982). The “sheer possibility that a defendant has acted unlawfully”
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is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of
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satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at
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969.
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The following of Plaintiff's allegations are simply not facially plausible: (1) that Plaintiff
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was subjected to "electroconvulsive therapy;" (2) that he has been "galvanized" through "ect
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torture;" (3) that the Superintendent of Corcoran daily calls Plaintiff names and thinks about
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torture being inflicted on him that the IGI Captain heads sessions of "interrogation torture" on
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Plaintiff to make him act out and/or to "galvanize" Plaintiff; (4) that Plaintiff is paralyzed only to
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wake up to a massive earthquake; that the IGI Captain "galvanizes" Plaintiff's eyes to subject him
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to sleep deprivation; that the IGI Captain has held Plaintiff in Corcoran as an "enemy combatant"
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to SNY inmates and has called in favors to pass legislation to obstruct Plaintiff's appeals to his
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conviction; and (5) that the IGI Captain ordered a tracking chip placed in Plaintiff's lower left leg
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during a surgical procedure back in 2007 that causes his foot to vibrate when he is being
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interrogated. These allegations, while certainly disturbing if Plaintiff truly believes them, appear
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at best fanciful, verging on delusional. However, none of these allegations, alone or in
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combination, state a facially plausible claim.
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2. Linkage Requirement
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution . . .
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
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42 U.S.C. ' 1983. The statute plainly requires that there be an actual connection or link between
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the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See
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Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
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(1976). The Ninth Circuit has held that A[a] person >subjects= another to the deprivation of a
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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates
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in another=s affirmative acts or omits to perform an act which he is legally required to do that
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causes the deprivation of which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th
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Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each named
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defendant with some affirmative act or omission that demonstrates a violation of Plaintiff=s
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federal rights. Further, Plaintiff cannot bring claims under section 1983 against other inmates as
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they are not persons acting under color of state law.
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The only named Defendants that Plaintiff links to his sparse factual allegations are the IGI
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Captain and the Superintendent of Corcoran, but as just previously discussed, his allegations
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against them are not facially plausible. None of the other named Defendants are linked to any of
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Plaintiff's allegations such that Plaintiff has not put the Defendants on notice of his claims against
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them. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).
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3. Immunities
Even if Plaintiff had linked all of the named Defendants to his factual allegations,
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President Barrack Obama, Eastern District Court of California, the FBI, the Department of
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Justice, and the Solicitor General would all be entitled to immunity from suit.
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a. Presidential Immunity
President Obama is absolutely immune from suit for damages for conduct that is part of
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the President's official duties. See Forrester v. white, 484 U.S. 219, 225 (1988); Nixon v.
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Fitzgerald, 457 U.S. 731, 756-58 (1982); Fry v. Melaragno, 939 F.2d 832, 836 (9th Cir. 1991);
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cf. Clinton v. Jones, 520 U.S. 681, 694-95 (1997) (holding no immunity from suit for conduct not
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taken in official capacity).
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b. Judicial Immunity
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Plaintiff does not link the Eastern District Court to any specific factual allegation.
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However, federal judges are absolutely immune from civil liability for damages and declaratory,
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injunctive, and other equitable relief for their judicial acts. Mullis v. U.S. Bankruptcy Court, Dist.
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of Nevada, 828 F.2d 1385, 1394 (9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988). A>A judge
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will not be deprived of immunity because the action he took was in error, was done maliciously,
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or was in excess of his authority; rather, he will be subject to liability only when he has acted in
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the clear absence of all jurisdiction.=@ Mullis, 828 F.2d at 1388 (quoting Stump v. Sparkman, 435
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U.S. 349, 356-357 (1978)). A clear absence of all jurisdiction means a clear lack of all subject
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matter jurisdiction. Id. at 1389.
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In addition, judicial immunity will be lost if the judge performs an act that is not Ajudicial@
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in nature. The factors relevant in determining whether an act is judicial Arelate to the nature of the
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act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of
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the parties, i.e., whether they dealt with the judge in his judicial capacity.@ Stump v. Sparkman,
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435 U.S. at 362.
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Judicial immunity is not lost by allegations that a judge conspired with a third party. As
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long as the judge=s ultimate acts are judicial actions taken within the court=s subject matter
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jurisdiction, immunity applies. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986). Plaintiff
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does not specify any actions or rulings made by the judges and/or the Eastern District Court in
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any specific case. However, the actions or rulings made by the judges in connection with cases to
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which the judges were assigned were within their jurisdiction. Plaintiff cannot possibly win relief
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against the judges and/or the Eastern District Court because of absolute judicial immunity. See
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Wong v. Bell, 642 F.2d 359, 361-362 (9th Cir. 1981).
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c. Prosecutorial Immunity
While Plaintiff names the FBI, the Department of Justice, and the Solicitor General as
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Defendants in this action, they are all entitled to prosecutorial immunity when persons employed
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by those departments are acting pursuant to their official roles as governmental advocates
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performing functions "intimately associated with the judicial phase of the criminal process."
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Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also Kalina v. Fletcher, 522 U.S. 118, 124-26
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(1997); Goldstein v. City of Long Beach, 481 F.3d 1170, 1173 (9th Cir. 2007), cert. granted, 128
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S. Ct. 1872 (U.S. Apr. 14, 2008) (No. 07-854); Botello v. Gammick, 413 F.3d 971, 975 (9th Cir.
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2005); Genzler v. Longanbach, 410 F.3d 630, 636-37 (9th Cir. 2005); KRL v. Moore, 384 F.3d
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1105, 1110 (9th Cir. 2004); Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).
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D.
Claims for Relief
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Plaintiff did not delineate any claims for relief that he hoped to pursue in the Second
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Amended Complaint. He was previously given the standards for claims under the Eighth
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Amendment for use of excessive force and for deliberate indifference to serious medical needs.
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Despite this, the Court is unable to identify any attempt by Plaintiff to state factual allegations to
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address the elements of a claim under the Eighth Amendment. As discussed above, Plaintiff's
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sparse fanciful/surreal allegations are not facially plausible. Plaintiff does not state any
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cognizable claims upon which to proceed in this action.
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III.
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CONCLUSION
Plaintiff's Second Amended Complaint is barred by Heck v. Humphrey and fails to state a
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cognizable claim against any of the named Defendants. Given Plaintiff's persistence in
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attempting to pursue claims that he as previously been advised are not actionable and his apparent
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inability to state allegations to meet the elements of a cognizable claim, it appears futile to allow
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further amendment.
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Accordingly, it is HEREBY RECOMMENDED that this entire action be dismissed and
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count as a strike for purposes of 28 U.S.C. §1915(g) as Plaintiff has both failed to state a
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cognizable claim and, pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), is barred from
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bringing this action under 28 U.S.C. § 1983. It is further recommended that Plaintiff's motion for
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reconsideration regarding the order to show cause, filed September 8, 2014 (Doc 14), be denied.
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These Findings and Recommendations 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)(l). Within 30
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days after being served with these Findings and Recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned AObjections to Magistrate Judge=s
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Findings and Recommendations.@
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///
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///
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///
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Plaintiff is advised that failure to file objections within the specified time may waive the
right to appeal the District Court=s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
October 16, 2014
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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