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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ZANE HUBBARD, 12 Plaintiff, 13 v. 14 SGT. J. G. GARCIA, et al., 15 Defendants. 16 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, 19 20 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 17 18 ) ) ) ) ) ) ) ) ) ) 2014. On June 17, 2014, the Court dismissed Plaintiff’s original complaint with leave to amend for 21 22 failure to state a cognizable claim for relief. (ECF No. 8.) After Plaintiff filed an amended complaint, 23 the Court again dismissed the complaint, with leave to amend, for failure to state a cognizable claim 24 for relief. (ECF No. 13.) For the reasons explained below, the Court finds the second amended complaint should be 25 26 dismissed, with prejudice, as frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). 27 /// 28 /// 1 1 I. 2 SCREENING REQUIREMENT 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks 7 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 8 9 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 10 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 11 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 12 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally 13 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, 14 Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010). 15 Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings 16 liberally construed and to have any doubt resolved in their favor, but the pleading standard is now 17 higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive 18 screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow 19 the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 20 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer 21 possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely 22 consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556 23 U.S. at 678; Moss, 572 F.3d at 969. 24 II. 25 COMPLAINT ALLEGATIONS 26 Plaintiff names J.C. Garcia, T. Perez, J.L. Williams, Hirachetta, DeOchoa, Rodriguez, as 27 Defendants, and Plaintiff requests a declaratory judgment, a preliminary and permanent injunction, 28 and compensatory damages, as relief. 2 Plaintiff contends that he has been subjected to electroconvulsive therapy-a military 1 2 interrogation application that requires radiation and/or electricity to experiment on the human 3 anatomy, read individual’s mind, galvanize people, employ phobias, deprive them of sleep, and 4 provoke and/or control individuals by employing pressure during interrogation. It also allows the 5 ability to transmit memories from a single person’s brain to any television or internet connection, 6 violating the individual’s right to privacy. Plaintiff contends that for three years prison officials have 7 this electroconvulsive force against him 24 hours a day, demanding that he is a sensitive needs yard 8 inmate. Plaintiff is being sexually harassed by T. Perez who demands that he “masturbate all day and 9 has [his] mother, brothers, sisters and family members watch the internet.” Failure to comply with the 10 demands would result in “galvanization” and subjection to electricity shocks.1 11 III. 12 DISCUSSION 13 A. 14 Plaintiff contends that he has been subjected to excessive force by use of electroconvulsive 15 Excessive Force Claim therapy to terrorize and torment him. Plaintiff’s allegations that Defendants used electroconvulsive therapy that requires radiation 16 17 and/or electricity to experiment on the human anatomy, read individual’s mind, galvanize people, 18 employ phobias, deprive them of sleep, and provoke and/or control individuals by employing pressure 19 during interrogation, are facially implausible, fantastic, and presents a delusional scenario, warranting 20 dismissal of the claim. See, e.g., Neitzke v. Williams, 490 U.S. 319, 327-328 (1989) (in forma 21 pauperis statute accords judges the authority to “pierce the veil of the complaint’s factual allegations” 22 and dismiss claims “describing fantastic or delusional scenarios”). There is no basis to Plaintiff’s 23 claim that he is the subject of electroconvulsive therapy and his claim of excessive force is irrational 24 and incredible, and should be dismissed as “fanciful,” “fantastic,” and “delusional.” Id. In addition, 25 Plaintiff’s claim that excessive force was imposed upon him each Defendants slandered, threatened, 26 1 27 28 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. 3 1 and/or harassed me,” is without merit because verbal threats do not amount to a constitutional 2 violation. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Gaut v. Sunn, 810 F.2d 923, 3 925 (9th Cir. 1987). Accordingly, Plaintiff clearly fails to state a claim for relief. 4 B. 5 Plaintiff contends that Defendants have invaded his right to privacy within his cell by 6 Right to Privacy subjecting him to electroconvulsive therapy 7 The United States Supreme Court has held that “[a] right of privacy in traditional Fourth 8 Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates 9 and their cells required to ensure institutional security and internal order.” Hudson v. Palmer, 468 10 U.S. 517, 527 (1984). Thus, “the Fourth Amendment’s prohibition on unreasonable searches does not 11 apply in prison cells.” To the extent Plaintiff contends his constitutional right to privacy has been 12 violated by the electroconvulsive therapy, his claim fails as such contention is based on fantastic and 13 delusional allegations. Accordingly, Plaintiff fails to state a constitutional violation of his right to 14 privacy. 15 C. 16 The Equal Protection Clause requires that persons who are similarly situated be treated alike. 17 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Hartmann v. California 18 Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021, 19 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). To state a claim, Plaintiff 20 must show that Defendants intentionally discriminated against him based on his membership in a 21 protected class. Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; Serrano v. Francis, 345 F.3d 22 1071, 1082 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). 23 Right to Equal Protection Plaintiff’s claim that out of 28 inmates, 27 of them were subject to a regular strip search, 24 however, Plaintiff was ordered to “bend over.” When Plaintiff refused, Sergeant DeOchoa responded 25 stating, “bend over, I think you got something in your ass.” Plaintiff contends this was “highly” 26 unnecessary because he is under constant surveillance 24 hours a day,” apparently through the alleged 27 electroconvulsive therapy. Plaintiff has failed to demonstrate that any of the named Defendants acted 28 4 1 with an intent or purpose to discriminate against him based upon membership in a protected class. 2 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 3 4 electroconvulsive therapy which is fantastic or delusional, rather than the result of Defendants’ actual 5 conduct, the complaint should be dismissed as frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). 6 IV. 7 RECOMMENDATION 8 Plaintiff’s amended complaint fails to state any cognizable claim for relief. Plaintiff was 9 previously notified of the applicable legal standards and afforded the opportunity twice to cure the 10 deficiencies in his complaint. Plaintiff has failed to do so. Accordingly, further leave to amend would 11 be futile and is not justified. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 12 809 F.2d 1446, 1448-1449 (9th Cir. 1987). Therefore, the undersigned recommends that the action be 13 dismissed with prejudice for failure to state a cognizable claim for relief. 14 This Findings and Recommendation will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty (30) days 16 after being served with this Findings and Recommendation, Plaintiff may file written objections with 17 the Court. 18 Recommendation.@ Plaintiff is advised that failure to file objections within the specified time may 19 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 20 21 IT IS SO ORDERED. 22 Dated: 23 November 18, 2014 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 5

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