Hubbard v. Marchak et al

Filing 10

FINDINGS And RECOMMENDATIONS To Dismiss Case, With Prejudice, For Failure To State A Claim (Doc. 9 ), Objections, If Any, Due Within Thirty Days, signed by Magistrate Judge Gary S. Austin on 4/27/2015. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 6/1/2015. (Fahrney, E)

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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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vs.

1:14-cv-00274-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CASE, WITH PREJUDICE,
FOR FAILURE TO STATE A CLAIM
(Doc. 9.)

M. MARCHAK, et al.,

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Defendants.

OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

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I.

BACKGROUND

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Zane Hubbard (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on

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February 28, 2014. (Doc. 1.)

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The court screened the Complaint under 28 U.S.C. § 1915A and entered an order on

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June 23, 2014, dismissing the Complaint for failure to state a claim, with leave to amend.

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(Doc. 8.) On July 7, 2014, Plaintiff filed the First Amended Complaint, which is now before

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the court for screening. (Doc. 9.)

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II.

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).
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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that the action or

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appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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

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not required, but 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, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare 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). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal, 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

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To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to

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state a plausible claim for relief. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility

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standard. Id.

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is presently incarcerated at Corcoran State Prison (CSP) in Corcoran,

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California, in the custody of the California Department of Corrections and Rehabilitation

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(CDCR), where the events at issue in the First Amended Complaint allegedly occurred.

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Plaintiff names as defendants M. Marchak (MD), J. Alford (PhD), Urbano (MD), J. Moon

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(MD), Correctional Officer (C/O) Matthews, and C/O Madrigal (collectively, “Defendants”).

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All of the Defendants were employed by the CDCR at CSP at the time of the events at issue.

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Plaintiff’s factual allegations follow.
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Plaintiff alleges that he is housed at the prison unlawfully as an enemy combatant under

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the Detainee Treatment Act. The narrative in Plaintiff’s First Amended Complaint is vague

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and rambling, with multiple legal cites.

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Plaintiff alleges that he is being subjected to illegal twenty-four-hour surveillance, has

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been wrongfully designated a “high risk medical inmate,” and has been forced into mental

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health treatment against his wishes. (First Amd Cmp at 6:16.) Plaintiff alleges that he notified

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defendants Matthews and Madrigal that he has a chip implanted in his system that he wants

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removed, and that he is hearing voices. Defendants Matthews and Madrigal handcuffed and

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shackled Plaintiff, placed a spit mask on his face, and escorted him to the prison hospital. At

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the hospital, Plaintiff explained to defendant Dr. Marchak about the interrogation against him

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and threats he was hearing. When asked by Dr. Marchak if he had mental health issues,

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Plaintiff said “No.” (Id. at 4 ¶5.) Plaintiff told Dr. Marchak that officials are “depriving me of

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life with aversive therapy.” (Id.) Plaintiff alleges that “genocidal behavior” is being practiced

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in the Eastern District. (Id. ¶6.)

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Dr. Marchak admitted Plaintiff to the suicide ward against his will. After being forced

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into a cell, defendants Matthews, Madrigal, Alvord, and other officers, held him down and cut

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off his clothing with scissors, twisted his arms up, and uncuffed him. Plaintiff alleges he was

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cleared of all psychological evaluations.

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Later, Plaintiff was discharged to the yard and interrogated, threatened, and surveilled

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twenty-four hours per day. Defendant Dr. Urbano asked Plaintiff if he was still hearing voices,

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and Plaintiff responded, “Yes,” but did not request mental health treatment. (Id. ¶8.) Dr.

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Urbano still forced him into the Enhanced Outpatient Program. Defendant Dr. Moon forced

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Plaintiff to take psych medication which was ineffective. Plaintiff suffers from insomnia,

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shocked nerves, humiliation, ongoing harassment, and post-traumatic stress. Plaintiff asserts

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that he is intellectually brilliant and is being intentionally abused out of “Hate.” (Id. ¶9.)

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Plaintiff requests monetary damages and injunctive relief.

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///

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///
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IV.

PLAINTIFF=S CLAIMS
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. ASection 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.

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Plaintiff brings claims for excessive force, forced mental health treatment,

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discrimination, violation of due process, and illegal surveillance and interrogation. However,

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Plaintiff’s factual allegations are not sufficient to state a plausible claim for relief against any of

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the Defendants under § 1983. Plaintiff claims he is not a mental health patient, but then makes

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statements that he hears voices, believes he is subject to twenty-four hour interrogation, and has

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a chip implanted in his system. Plaintiff makes conclusory allegations that Defendants have

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subjected him to “moral turpitude,” “aversive therapy,” “prejudice,” and “deprivation of my

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life, liberty, and property.” (First Amd Cmp at 2 ¶II.C., 4 ¶¶5,9, 7 ¶30.) The Court implies

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from the complaint that Plaintiff was being treated for a mental illness, or out of concern for

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suicidal tendencies. Plaintiff is advised that even involuntary medication of Plaintiff, so long as

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due process is satisfied, does not violate the Eighth Amendment. Washington v. Harper, 494

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U.S. 210, 221-22 (1990). Further, Plaintiff may not challenge Defendants’ conduct where only

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the quality of treatment is subject to dispute. Sanchez v. Vild, 891 F.2d 240 (9th Cir. 1989).

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Mere difference of opinion between a prisoner and prison medical staff as to appropriate

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medical care does not give rise to a section 1983 claim. Hatton v. Arpaio, 217 F.3d 845 (9th

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Cir. 2000); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

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As for Plaintiff’s medical care, Plaintiff has not specifically charged each Defendant

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with conduct indicating that they knew of and disregarded a serious risk to Plaintiff’s health,

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resulting in injury to Plaintiff. Plaintiff may not hold Defendants liable simply by setting forth

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conclusory allegations. To state an Eighth Amendment medical claim, Plaintiff must allege

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facts indicating that each Defendant was aware of a specific harm to Plaintiff, and acted with

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deliberate indifference to that harm. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006);

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Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976); McGuckin v. Smith, 974 F.2d 1050,

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1059 (9th Cir. 1992). Plaintiff has failed to do so here.

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As to any claim of excessive force, the Court finds the complaint to be similarly vague.

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The facts alleged imply that Defendants’ conduct was in response to some medical or

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psychiatric need of Plaintiff’s. There are no facts alleged indicating that force was applied

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“maliciously and sadistically for the purpose of causing harm.”

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U.S. 1, 7 (1992); see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002). The complaint

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should therefore be dismissed.

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V.

Hudson v. McMillian, 503

CONCLUSION AND RECOMMENDATIONS

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The Court finds that Plaintiff=s First Amended Complaint fails to state any cognizable

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claim upon which relief may be granted under ' 1983. The Court previously granted Plaintiff

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leave to amend the complaint, with ample guidance by the Court. Plaintiff has now filed two

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complaints without stating any claims upon which relief may be granted under § 1983. The

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Court finds that the deficiencies outlined above are not capable of being cured by amendment,

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and therefore further leave to amend should not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii);

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Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that:

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1.

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This action be DISMISSED in its entirety, with prejudice, for failure to state a
claim upon which relief may be granted; and
This dismissal count as a STRIKE pursuant to 28 U.S.C. ' 1915(g).

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2.

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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
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thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file

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written objections with the Court.

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Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file

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

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

The document should be captioned AObjections to

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IT IS SO ORDERED.
Dated:

April 27, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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