Hubbard v. Woods, et al.

Filing 9

FINDINGS And RECOMMENDATIONS Regarding Dismissal Of Action For Failure To State A Claim, Fourteen-Day Deadline (Doc. 8 ), signed by Magistrate Judge Barbara A. McAuliffe on 5/1/2015. F&R's referred to Judge Anthony W. Ishii;Objections to F&R due by 5/20/2015.(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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D. WOODS, et al.,

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Defendants.

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1:14-cv-00874-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A CLAIM
FOURTEEN-DAY DEADLINE

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I.

Screening Requirement and Standards

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Plaintiff Zane Hubbard (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 19, 2015, the Court

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dismissed Plaintiff’s complaint with leave to amend. Plaintiff’s first amended complaint, filed

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on April 15, 2015, is currently before the Court for screening.

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28

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U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[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, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, 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).

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

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at

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678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently housed at California State Prison, Corcoran. He names the

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following defendants: (1) Correctional Officer J. Almaguer; (2) Registered Nurse D. Woods; (3)

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News Reporter Graciela Moreno; (4) Investigative Service Unit Officer Woodrow; and (5)

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Correctional Officer T. Franco.

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Plaintiff alleges that his civil rights complaint stems from his personal relationship with

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Graciela Moreno of ABC Action News while he was released from prison custody. Plaintiff

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contends that he had a very distasteful relationship with Ms. Moreno and he terminated it.

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Plaintiff now alleges that Ms. Moreno does not want to accept that nothing exists

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between them and has decided to use her status as a news reporter and a personal friend to

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request a favor from prison employees and court officers to harass and abuse Plaintiff into a

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relationship with her.

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Plaintiff alleges that Warden Connie Gipson, who he assumes is a personal friend of Mr.

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Moreno, has breached the security of the institution with electronic monitoring of Plaintiff in his

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cell without lawful excuse, justification or court order. Plaintiff asserts that the electronic

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monitoring of him in his cell is being shared with millions of people all over the world and other

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inmates. Plaintiff also believes that his activities of daily living are being shared with foreign

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countries and nationally. Plaintiff further alleges that the electronic monitoring allows the

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government, foreign governments, national and foreign citizens, prison employee and inmates to

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monitor and verbally and sexually harass him. Plaintiff asserts that the monitoring is known as

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military force, which is constitutionally prohibited from being used against him. Plaintiff

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contends that the electronic monitoring allows national and foreign governments to exploit and

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expose him and his property, along with threatening his life with sexual victimization, murder

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and extortion.

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Plaintiff contends that he was assaulted by prison guards in an unreasonable manner.

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Acting on a favor for Ms. Moreno, after the assault, Plaintiff was tied to a wheelchair with a

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sheet around his chest and ankles while already handcuffed behind his back and shackled at his

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feet. The alleged assault and related allegations are the apparent subject of another lawsuit

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identified as Hubbard v. Gutierrez, 1:14-cv-01560 MJS. (ECF No. 8, p. 6.) Plaintiff states that

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he successfully pled his claim, but was barred from obtaining relief because of an

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unconstitutional bill of attainder, ex post facto law.

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Plaintiff further alleges that on May 6, 2014, after being attacked by a correctional

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officer, Plaintiff was being medically evaluated by Defendant RN Woods. In the presence of

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Officer Woodrow, T. Franco, J. Medina, and J. Almaguer, Defendant Woods rubbed Plaintiff’s

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ass below the waist knowing it was not a required form of evaluation. Plaintiff told Defendant

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Woods to back up and he considered it to be homosexual behavior. Officer Woodrow, T.

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Franco, J. Ramirez, J. Medina and J. Almaguer did not investigate the behavior.

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Plaintiff alleges that Defendant Woods is a homosexual male.

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Plaintiff further alleges that via electronic monitoring, Ms. Moreno harassingly and

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excessively asks Plaintiff to masturbate to her and that harassment will not stop until he becomes

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acquainted with her.

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Plaintiff seeks punitive damages, injunctive relief and a stay.

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III.

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Discussion
A. Frivolous Nature of Allegations

A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The Court may dismiss a claim as frivolous where it is based on an indisputably

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meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at

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327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an

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arguable legal and factual basis. Id. at 325.

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Here, Plaintiff’s allegations that he is being electronically monitored in his cell and that

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the monitoring of him is being viewed by Ms. Moreno and millions of people all over the world,

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including foreign governments, are clearly delusional and baseless. Plaintiff’s additional

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allegations concerning Ms. Moreno, a news reporter, also are baseless and wholly fanciful

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allegations. These purported claims cannot be cured by amendment.

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B. Eighth Amendment
The unnecessary and wanton infliction of pain violates the Cruel and Unusual

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Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct.

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995 (1992) (citations omitted). The objective component of an Eighth Amendment claim is

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contextual and responsive to contemporary standards of decency. Hudson, 503 U.S. at 8

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(quotation marks and citation omitted). A sexual assault on a prisoner by a correctional officer is

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“deeply offensive to human dignity.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000)

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(quotation and citation omitted). However, not every malevolent touch by a prison guard gives

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rise to a federal cause of action. Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.Ct. 1175, 1178

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(2010) (per curiam). Necessarily excluded from constitutional recognition is the de minimis use

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of force, provided that the use of force is not of a sort repugnant to the conscience of mankind.
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Wilkins, 559 U.S. at 37-8, 130 S.Ct. at 1178 (citing Hudson, 503 U.S. at 9-10) (quotations marks

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omitted).

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Here, Plaintiff’s allegations against Defendant Woods do not include any evidence of

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undue force. At best, Plaintiff alleges a single touch of his buttocks by RN Woods during a

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medical evaluation following an asserted assault. This does not rise to the level of a

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constitutional violation. See, e.g., Berryhill v. Schiro, 137 F.3d 1073, 1076 (8th Cir. 1998) (brief

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touch of prisoner’s buttocks by prison employees did not constitute Eighth Amendment

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violation). Plaintiff has been unable to cure the deficiencies of this claim and further leave to

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amend is not warranted.

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C. Failure to Intervene
The failure to intervene can support an excessive force claim where the bystander-

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officers had a realistic opportunity to intervene but failed to do so. Lolli v. County of Orange,

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351 F.3d 410, 418 (9th Cir. 2003); Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000);

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Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995); see also Motley v. Parks, 383 F.3d

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1058, 1071 (9th Cir. 2004) (neither officers who participated in the harassing search nor officers

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who failed to intervene and stop the harassing search were entitled to qualified immunity).

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Here, Plaintiff has failed to state a cognizable claim against Officer Woodrow, T. Franco,

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J. Ramirez, J. Medina and J. Almaguer for failure to intervene. There is no indication that these

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individuals failed to intervene in any alleged sexual assault or abuse of Plaintiff during the

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medical evaluation. As noted above, Plaintiff has not stated a cognizable constitutional claim

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arising from the alleged touching of his buttocks during a medical evaluation.

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Plaintiff has been unable to cure this claim and further leave to amend is not warranted.

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IV.

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Plaintiff’s complaint contains frivolous claims and fails to state any cognizable claim

Conclusion and Recommendation

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upon which relief can be granted. As discussed above, further leave to amend is not warranted.

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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Accordingly, it is HEREBY

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RECOMMENDED that this action be dismissed with prejudice for failure to state a cognizable

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section 1983 claim.
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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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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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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 the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839, (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

May 1, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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