Hubbard v. Gipson et al

Filing 11

FINDINGS and RECOMMENDATIONS to Dismiss Action with Prejudice for Failure to State a Claim re 9 , signed by Magistrate Judge Michael J. Seng on 10/30/14. Referred to Judge O'Neill. Objections Due Within Fourteen Days. (Gonzalez, R)

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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.
C. GIPSON, et al.,

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Defendants.

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CASE NO. 1:14-cv-00275-LJO-MJS (PC)
FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION WITH PREJUDICE FOR
FAILURE TO STATE A CLAIM
(ECF No. 9)
OBJECTIONS DUE WITHIN FOURTEEN
(14) DAYS

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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.
The Court screened Plaintiff‟s complaint (ECF No. 1), and dismissed it for failure

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to state a claim, but gave leave to amend. (ECF No. 7.) Plaintiff since has filed a first
amended complaint (ECF No. 9) which is before the Court for screening. Plaintiff‟s
complaint also requests consolidation of this action with Case No. 1:14-cv-00042-AWIJLT.
I.

THE COMPLAINT
A.

Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief
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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B.

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.
Plaintiff’s Allegations

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C.

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Plaintiff initially complained of acts that occurred during his incarceration at

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Corcoran State Prison (“CSP”). His initial complaint named as Defendants: (1) Gipson,

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(2) T. Drew, (3) CSP Superintendent, (4) Lt. Peña, (5) Hall, (6) T. King, and (7) Aceves.

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The complaint alleged that Defendants, motivated by discrimination against Plaintiff,

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conspired to torture him by using illegal electroconvulsive therapy, and that his Privacy

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Act right and copyrights were violated by Defendants‟ broadcasting his artwork, song

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lyrics, social security and “other personal material” at CSP.

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Plaintiff‟s first amended complaint substantially expands on these allegations and

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adds numerous new claims and defendants. The first amended complaint names the

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following 37 Defendants: (1) Connie Gipson, CSP Warden; (2) T. Drew, Institutional

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Gang Investigator (“IGI”) Lieutenant at Wasco State Prison („WSP”); (3) Rawland K.

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Swift, CSP Chief Deputy Warden; (4) S. Pena, CSP IGI Lieutenant; (5) Aceves, WSP

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Correctional Sergeant; (6) T. King, Deputy Gang Sheriff at Kern County Sheriff‟s

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Detention Center; (7) J. Pierce, CSP IGI; (8) J.C. Garcia, CSP IGI Lieutenant; (9) D.

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Gonzalez, WSP Correctional Officer; (10) M. Gonzalez, CSP Correctional Officer; (11)

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J.C. Smith, CSP Chief Deputy Warden; (12) C. Rodriguez, WSP Assistant IGI; (13) L.J.

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Williams, CSP Correctional Officer; (14) Graves-Banks, CSP Correctional Counselor I;

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(15) Flores, CSP Correctional Officer; (16) Hirachetta, CSP Correctional Officer; (17)

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Mendez, CSP Correctional Sergeant; (18) Brian, CSP Correctional Officer; (19) Chavez,

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CSP Correctional Officer; (20) R. Viramontes, SNY Correctional Informant at CSP; (21)

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T. Perez, CSP Chief Deputy Warden; (22) De Ochoa, CSP Correctional Sergeant, (23)

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Kellogs, CSP Correctional Sergeant; (24) Arthuro Estrada, CSP inmate; (25) Carlos

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Contreras, CSP inmate; (26) Stanley “Tuki” Williams, CSP inmate; (27) Black Mike from

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Compton, CA, CSP inmate; (28) Tony Christian, CSP inmate; (29) Richard Silvas, CSP

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Inmate; (30) Barry, CSP inmate; (31) Antonio Hinojosa, CSP Inmate; (32) Uribe, Folsom

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State Prison (“FSP”) Inmate; (33) Vargas, FSP Inmate; (34) Fradieu, FSP Inmate; (35)

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Woods, CSP Nurse; (36) Richard Arambulo Leuvano Thomas, Parolee in Bakersfield;

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and (37) Michael Moreno, Ex-Felon.

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Plaintiff‟s allegations are difficult to understand but generally appear to complain
of two specific aspects of Defendants‟ conduct.

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First, Plaintiff alleges that various defendants are using illegal electroconvulsive

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therapy, psychosurgery, lobotomy, stereotactic surgery, deconstruction of brain tissue,

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electronic stimulation to the brain, and “galvanization” against him. According to Plaintiff

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this conduct has two purposes: (1) to brainwash him so he will “debrief” on other

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inmates, drop out of a gang, incriminate himself, and become law enforcement; and

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(2) to obtain information regarding Plaintiff‟s identity, “birthrights,” and privacy, and

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broadcast it to the Sensitive Needs Yard (“SNY”) population, law enforcement, and the

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nation.

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Second, Plaintiff alleges that he is “abnormally classified.” Plaintiff appears to take

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issue with his placement in the CSP Security Housing Unit (“SHU”). Plaintiff states that

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the SHU at CSP and FSP is only for SNY debriefers and gang dropouts. Plaintiff is a

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Mexican Mafia associate and therefore incompatible with SNY inmates. He wishes to be

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placed in a general population SHU. Housing him at CSP is “torture.” He believes he is

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being held there until he debriefs or informs. He has been placed in the “step down”

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program against his will, and is being forced to debrief and drop out, or to be kept in

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solitary confinement. Plaintiff also alleges he was validated as a gang member based on

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his race.

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Plaintiff also raises numerous other general allegations: His due process rights

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have been “eradicated.” His health and safety are in constant danger. He is unlawfully

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confined and is being excessively punished. Unspecified individuals are impinging on

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Plaintiff‟s copyrights by exposing the contents of his creative art. Plaintiff‟s conviction is

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unlawful. His gang validation is unconstitutional. His housing is unconstitutional. The

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conditions of his confinement are unconstitutional. He is suffering from “incompatible

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activity.”

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Plaintiff‟s specific allegations are as follows.

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Plaintiff was in solitary confinement at CSP from December 26, 2013 through

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February 10, 2014. False documents stating Plaintiff had enemy concerns with the

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Mexican Mafia were presented to the Committee that assigned him to solitary. These

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documents concerned an altercation Plaintiff had with his cell mate, who was a Mexican

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Mafia dropout. Plaintiff is a Mexican Mafia associate. He has enemy concerns with the

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CSP SNY population and FSP SHU population. SNY inmates worked with California

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Department of Corrections and Rehabilitation (“CDCR”) employees to falsify enemy

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concerns against him for discriminatory reasons. Plaintiff appealed his assignment to

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solitary. Defendant Azevedo denied his appeal at the first level. Defendant Smith

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“eradicated the contents of the appeal” at the second level but “granted the entire

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appeal.” Nevertheless, Plaintiff was not afforded any relief.

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On February 9, 2014, Defendants Gipson, Swift, Garcia, Perez, L.J. Williams,

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Hirachetta, De Ochoa, Rodriguez, and Kellogs used electroconvulsive therapy and

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threatened to kill Plaintiff if he did not enter protective custody and debrief or inform on

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others. Plaintiff filed a CDCR Form 22 to Defendants Swift and Gipson regarding this

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incident. Swift and Gipson did not respond.

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Defendant Pena also used electroconvulsive therapy and threatened to kill

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Plaintiff because Plaintiff had seen Defendant Pena engaged in illegal activities while

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Plaintiff was on parole. Plaintiff filed a CDCR Form 22 to Defendants Swift and Gipson

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regarding this incident. Swift and Gipson did not respond.

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Defendants Pena, Garcia, Perez, L.J. Williams, Hirachetta, De Ochoa, Rodriguez,

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Kellogs, Estrada, Contreras, Stanley “Tuki” Williams, Black Mike, Uribe, Vargas, Fradieu

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and Walls told Plaintiff they were going to kill him because they are SNY gangsters and

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Plaintiff is not a dropout or a debriefer. Plaintiff filed a Form 22 to Defendant Gipson or

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Swift alleging that he was in fear for his life. Gipson and Swift did not respond.

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On February 19, 2014, Plaintiff filed a Form 602 complaint alleging that he feared

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for his life. He complained that inmates and staff had threatened to kill him at CSP and

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FSP. The inmates and employees told him they were SNY gangsters and were going to

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kill him because he would not drop out. They also told him he was housed in CSP out of

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discrimination on the hope that he would contract Valley Fever. Defendant Azevedo

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denied his appeal at the first level. Defendant Smith denied his appeal at the second

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level. Defendant Briggs denied his appeal at the third level, causing Plaintiff to “suffer an

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additional 60 days.”

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From June 1, 2013 to April 10, 2014, Defendants Pierce, Pena, and Garcia

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threatened to kill him, sodomize him, kidnap him, sexually assault him, and put him in

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SNY. They also falsified documents against him. Defendants C. Gonzalez, M. Gonzalez,

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and Gipson “concurred.”

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Defendants Smith, Gipson, Swift, Pena, Garcia, and Pierce housed him with
dropout debriefers “in a Blackhawk down” situation.

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On April 1, 2014, Defendants Drew, Rodriguez, and L.J. Williams sexually

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harassed Plaintiff through electroconvulsive therapy, made sexual comments to him, and

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threatened to kill him, slander him, and expose his identity.

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On February 2, 2013, Defendant Graves-Banks illegally confiscated a
resentencing notice and withheld Plaintiff from sentence modification.
On June 9, 2013, Defendant Flores and Hirachetta gave Plaintiff two used
unmarked razors to shave with, which is a health and safety hazard.
On May 1, 2013, Defendants Mendes, Brian and Chavez housed him with Inmate
Viramontes, resulting in the altercation that led to Plaintiff‟s solitary confinement.

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Plaintiff seeks a declaratory judgment that his due process rights were violated; a

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permanent injunction against his placement at CSP, FSP, or in the step down program;

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transfer out of CSP; expungement of the falsified safety concerns; a return to double cell

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status; and money damages.

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D.

Analysis
1.

Unrelated claims

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Fed. R. Civ. P. 18(a) states: “A party asserting a claim, counterclaim, cross-claim,

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or third-party claim may join, as independent or alternative claims, as many claims as it

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has against an opposing party.” “Thus multiple claims against a single party are fine, but

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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)); see also Fed. R. Civ. P. 20(a)(2) (“Persons . . . may

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be joined in one action as defendants if . . . any right to relief is asserted against them

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jointly, severally, or in the alternative with respect to or arising out of the same

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transaction, occurrence, or series of transactions or occurrences . . . .”)

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Plaintiff‟s initial complaint alleged that Defendants Gipson, Drew, Pena, Hall, King,

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Aceves, and an unnamed Superintendent conspired to torture Plaintiff

with

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electroconvulsive therapy out of discrimination, and violated his Privacy Act rights and

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copyrights. Plaintiff was advised in the Court‟s prior screening order that he would not

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be permitted to change the nature of this suit by adding new, unrelated claims in his

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amended complaint. (ECF No. 7.)

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Nevertheless, Plaintiff‟s first amended complaint alleges numerous unrelated

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claims. Plaintiff‟s allegations regarding his classification and housing placement,

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attempts to encourage him to debrief, his validation as a gang associate, threats against

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him due to his gang association, the confiscation of his resentencing notice, and his

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being given used razors, bear no apparent relation to his original claims regarding

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electroconvulsive therapy, Privacy Act rights, and copyrights. The Court also notes that

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Plaintiff has raised several of these claims in prior actions. See, e.g., Hubbard v.

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Corcoran State Prison, No. 1:13-cv-01736-AWI-MJS (PC) (classification and housing

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decisions, gang validation); Hubbard v. Corcoran State Prison, No. 1:13-cv-01511-AWI-

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MJS (confiscation of resentencing notice);

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These claims do not arise out of the same transaction, occurrence, or series of

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transactions and occurrences. They may not be joined in this action. If Plaintiff wishes to

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pursue these allegations, he must do so in a separate suit. The Court will not address

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whether these allegations state a cognizable claim, and will recommend that these

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claims be dismissed.

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2.

Excessive Force

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The Cruel and Unusual Punishment Clause of the Eighth Amendment protects

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prisoners from the use of excessive physical force. Wilkins v. Gaddy, 559 U.S. 34, 36

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(2010); Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). To state an Eighth Amendment

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claim, a plaintiff must allege that the use of force was an “unnecessary and wanton

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infliction of pain.” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001). The malicious

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and sadistic use of force to cause harm always violates contemporary standards of

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decency, regardless of whether or not significant injury is evident. Hudson, 503 U.S. at 9.

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Not “every malevolent touch by a prison guard gives rise to a federal cause of

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action.” Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of cruel and

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unusual punishments necessarily excludes from constitutional recognition de minimis

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uses of physical force, provided that the use of force is not of a sort repugnant to the

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conscience of mankind.” Id. at 9-10; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir.

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2002) (Eighth Amendment excessive force standard examines de minimis uses of force,

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not de minimis injuries).

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Whether force used by prison officials was excessive is determined by inquiring if

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the “force was applied in a good-faith effort to maintain or restore discipline, or

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maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7. The Court must

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look at the need for application of force; the relationship between that need and the

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amount of force applied; the extent of the injury inflicted; the extent of the threat to the

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safety of staff and inmates as reasonably perceived by prison officials; and any efforts

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made to temper the severity of the response. See Whitley v. Albers, 475 U.S. 312, 321

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(1986).

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Plaintiff‟s complaint contains three allegations of excessive force involving

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electroconvulsive therapy. First, on February 9, 2014, Defendants Gipson, Swift, Garcia,

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Perez,

L.J.

Williams,

Hirachetta,

De

Ochoa,

Rodriguez,

and

Kellogs

used

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electroconvulsive therapy and threatened to kill Plaintiff if he did not debrief or inform on

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others. Second, in an undated incident, Defendant Pena used electroconvulsive therapy

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and threatened to kill Plaintiff because Plaintiff had seen Defendant Pena engage in

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illegal activities. Lastly, on April 1, 2014, Defendants Drew, Rodriguez, and L.J. Williams

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used electroconvulsive therapy and made sexually harassing comments to Plaintiff and

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threated to kill him.

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Allegations that defendants used electroconvulsive therapy, psychosurgery,

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lobotomy, stereotactic surgery, deconstruction of brain tissue, electronic stimulation to

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the brain, and “galvanization” against Plaintiff are so implausible, outlandish, and far-

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fetched as not to be believed. See Nietzke v. Williams, 490 U.S. 319, 327-28 (1989)

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(section 1915(d) accords judges the authority to “pierce the veil of the complaint‟s factual

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allegations” and dismiss claims “describing fantastic or delusional scenarios”). The Court

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will recommend that these claims be dismissed.

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3.

Privacy Rights and Copyrights

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Plaintiff generally alleges that unspecified individuals are impinging on his

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copyrights by exposing his creating art, and are attempting to obtain his personal

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information to broadcast it to others.

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Under § 1983, Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons

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v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton,

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588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). Liability may not be imposed on supervisory personnel under the theory of

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respondeat superior, as each defendant is only liable for his or her own misconduct.

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Iqbal, 556 U.S. at 676-77; Ewing, 588 F.3d at 1235. Supervisors may only be held liable

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if they “participated in or directed the violations, or knew of the violations and failed to act

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to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v.

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Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570

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(9th Cir. 2009); Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th

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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).

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Plaintiff has not linked any named defendants to his privacy and copyright claims.

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He was advised of this deficiency in the Court‟s prior screening order, but failed to

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correct it. No useful purpose would be served by permitting Plaintiff a further opportunity

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to amend these claims.

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4.

Declaratory Relief

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In addition to damages, Plaintiff seeks declaratory relief, but because his claims

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for damages necessarily entail a determination whether his rights were violated, his

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separate request for declaratory relief is subsumed by those claims. Rhodes v.

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Robinson, 408 F.3d 559, 566 n.8 (9th Cir. 2005). Therefore, Plaintiff‟s claim for

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declaratory relief should be dismissed.

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E.

Conclusion

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Plaintiff has not stated any cognizable claims against any defendants. The Court

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will recommend that Plaintiff‟s first amended complaint be dismissed with prejudice.

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III.

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REQUEST TO CONSOLIDATE
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 seeks to consolidate Case No. 1:14-cv-00042-AWI-JLT with the instant

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action. Plaintiff argues that the claims in both cases are related, but does not explain the

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alleged relationship between the two cases or how consolidation would result in

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economy and convenience. The Court in Case No. 1:14-cv-00042-AWI-JLT has ordered

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Plaintiff to show cause why that action should not be dismissed, and it appears the Court

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has concluded that the action is barred by Heck v. Humphrey, 512 U.S. 477, 486-87

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(1994). Accordingly, consolidation of the actions would be impractical at this stage of the

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proceedings.
Based on the foregoing, it is recommended that Plaintiff‟s request to consolidate

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be denied.

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IV.

CONCLUSION AND RECOMMENDATION

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Plaintiff‟s first amended complaint fails to state any 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. No useful purpose would be served by once again advising

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Plaintiff of those deficiencies and giving him yet another chance to correct them. Further

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leave to amend 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 waive the right to appeal the District Court‟s

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order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

October 30, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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