Hubbard v. Garcia et al

Filing 15

FINDINGS and RECOMMENDATION Recommending Dismissal of 14 Second Amended Complaint, with Prejudice, for Failure to State a Cognizable Claim for Relief, signed by Magistrate Judge Stanley A. Boone on 11/18/14. Referred to Judge Ishii; 30-Day Deadline. (Verduzco, M)

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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.

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SGT. J. G. GARCIA, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF SECOND
AMENDED COMPLAINT, WITH PREJUDICE,
FOR FAILURE TO STATE A COGNIZABLE
CLAIM FOR RELIEF
[ECF No. 14]

pursuant to 42 U.S.C. § 1983.
Now pending before the Court is Plaintiff’s second amended complaint, filed October 28,

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Case No.: 1:14-cv-00278-AWI-SAB (PC)

Plaintiff Zane Hubbard is appearing pro se and in forma pauperis in this civil rights action

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2014.
On June 17, 2014, the Court dismissed Plaintiff’s original complaint with leave to amend for

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failure to state a cognizable claim for relief. (ECF No. 8.) After Plaintiff filed an amended complaint,

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the Court again dismissed the complaint, with leave to amend, for failure to state a cognizable claim

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for relief. (ECF No. 13.)
For the reasons explained below, the Court finds the second amended complaint should be

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dismissed, with prejudice, as frivolous. 28 U.S.C. § 1915(e)(2)(B)(i).

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I.

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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 or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff names J.C. Garcia, T. Perez, J.L. Williams, Hirachetta, DeOchoa, Rodriguez, as

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Defendants, and Plaintiff requests a declaratory judgment, a preliminary and permanent injunction,

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and compensatory damages, as relief.
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Plaintiff contends that he has been subjected to electroconvulsive therapy-a military

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interrogation application that requires radiation and/or electricity to experiment on the human

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anatomy, read individual’s mind, galvanize people, employ phobias, deprive them of sleep, and

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provoke and/or control individuals by employing pressure during interrogation. It also allows the

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ability to transmit memories from a single person’s brain to any television or internet connection,

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violating the individual’s right to privacy. Plaintiff contends that for three years prison officials have

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this electroconvulsive force against him 24 hours a day, demanding that he is a sensitive needs yard

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inmate. Plaintiff is being sexually harassed by T. Perez who demands that he “masturbate all day and

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has [his] mother, brothers, sisters and family members watch the internet.” Failure to comply with the

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demands would result in “galvanization” and subjection to electricity shocks.1

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III.

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DISCUSSION

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A.

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Plaintiff contends that he has been subjected to excessive force by use of electroconvulsive

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Excessive Force Claim

therapy to terrorize and torment him.
Plaintiff’s allegations that Defendants used electroconvulsive therapy that requires radiation

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and/or electricity to experiment on the human anatomy, read individual’s mind, galvanize people,

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employ phobias, deprive them of sleep, and provoke and/or control individuals by employing pressure

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during interrogation, are facially implausible, fantastic, and presents a delusional scenario, warranting

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dismissal of the claim. See, e.g., Neitzke v. Williams, 490 U.S. 319, 327-328 (1989) (in forma

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pauperis statute accords judges the authority to “pierce the veil of the complaint’s factual allegations”

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and dismiss claims “describing fantastic or delusional scenarios”). There is no basis to Plaintiff’s

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claim that he is the subject of electroconvulsive therapy and his claim of excessive force is irrational

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and incredible, and should be dismissed as “fanciful,” “fantastic,” and “delusional.” Id. In addition,

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Plaintiff’s claim that excessive force was imposed upon him each Defendants slandered, threatened,

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In at least two other actions filed in this Court, case numbers 1:14-cv-00042-AWI-JLT and 1:14-cv-00275-LJO- MJS,
Plaintiff has raised similar claims relating to the use of electroconvulsive therapy. In both cases, the Court has
recommended dismissal of the action for failure to state a cognizable claim for relief.

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and/or harassed me,” is without merit because verbal threats do not amount to a constitutional

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violation. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Gaut v. Sunn, 810 F.2d 923,

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925 (9th Cir. 1987). Accordingly, Plaintiff clearly fails to state a claim for relief.

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B.

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Plaintiff contends that Defendants have invaded his right to privacy within his cell by

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Right to Privacy

subjecting him to electroconvulsive therapy

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The United States Supreme Court has held that “[a] right of privacy in traditional Fourth

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Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates

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and their cells required to ensure institutional security and internal order.” Hudson v. Palmer, 468

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U.S. 517, 527 (1984). Thus, “the Fourth Amendment’s prohibition on unreasonable searches does not

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apply in prison cells.” To the extent Plaintiff contends his constitutional right to privacy has been

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violated by the electroconvulsive therapy, his claim fails as such contention is based on fantastic and

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delusional allegations. Accordingly, Plaintiff fails to state a constitutional violation of his right to

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privacy.

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C.

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The Equal Protection Clause requires that persons who are similarly situated be treated alike.

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City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Hartmann v. California

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Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021,

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1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). To state a claim, Plaintiff

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must show that Defendants intentionally discriminated against him based on his membership in a

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protected class. Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; Serrano v. Francis, 345 F.3d

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1071, 1082 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001).

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Right to Equal Protection

Plaintiff’s claim that out of 28 inmates, 27 of them were subject to a regular strip search,

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however, Plaintiff was ordered to “bend over.” When Plaintiff refused, Sergeant DeOchoa responded

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stating, “bend over, I think you got something in your ass.” Plaintiff contends this was “highly”

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unnecessary because he is under constant surveillance 24 hours a day,” apparently through the alleged

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electroconvulsive therapy. Plaintiff has failed to demonstrate that any of the named Defendants acted

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with an intent or purpose to discriminate against him based upon membership in a protected class.

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Accordingly, Plaintiff fails to state a cognizable claim.
Because all of Plaintiff’s claims relate in some form or fashion to the alleged use of

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electroconvulsive therapy which is fantastic or delusional, rather than the result of Defendants’ actual

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conduct, the complaint should be dismissed as frivolous. 28 U.S.C. § 1915(e)(2)(B)(i).

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IV.

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RECOMMENDATION

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Plaintiff’s amended complaint fails to state any cognizable claim for relief. Plaintiff was

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previously notified of the applicable legal standards and afforded the opportunity twice to cure the

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deficiencies in his complaint. Plaintiff has failed to do so. Accordingly, further leave to amend would

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be futile and is not justified. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson,

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809 F.2d 1446, 1448-1449 (9th Cir. 1987). Therefore, the undersigned recommends that the action be

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dismissed with prejudice for failure to state a cognizable claim for relief.

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This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty (30) days

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after being served with this Findings and Recommendation, Plaintiff may file written objections with

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the Court.

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Recommendation.@ Plaintiff is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court=s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

The document should be captioned AObjections to Magistrate Judge=s Findings and

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IT IS SO ORDERED.

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Dated:

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November 18, 2014
UNITED STATES MAGISTRATE JUDGE

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