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Hernandez v. Terhume

United States District Court, N.D. California
Dec 12, 2000
No. C 00-0848 WHA (PR) (N.D. Cal. Dec. 12, 2000)

Opinion

No. C 00-0848 WHA (PR)

December 12, 2000


ORDER OF DISMISSAL WITH LIMITED LEAVE TO AMEND


STATEMENT


Plaintiff Ruben T. Hernandez is a prisoner at Pelican Bay State Prison and a frequent litigant in federal court. He now brings this action under Bivens and Sections 1983, 1985 and 1986 of Title 42 against more than six dozen state and federal defendants from all over California. The central theme of plaintiff's complaint involves an alleged state-wide conspiracy by defendants to psychologically torture, manipulate and brainwash plaintiff's subconscious through the use of surveillance cameras, audio speakers built into prison walls and calibrated at subliminal decibels, and cooperating prisoners operating as government informants. The body of plaintiff's complaint, with the particulars of plaintiff's conspiracy theory present throughout, takes issue with the constitutionality of events resulting in his initial conviction, his confinement in state and county institutions before his arrival at Pelican Bay State Prison, and finally the conditions of his current confinement at Pelican Bay State Prison. This order dismisses essentially all of plaintiff's complaint. The Court, however, will give plaintiff the opportunity to amend that portion of his complaint where plaintiff alleges, but without elaboration, that he was sprayed with pepper spray three to six times by defendant Lieutenant Upton and struck at least ten times with a night stick and shot with taser darts by an unnamed defendant at Pelican Bay State Prison.

Apart from his complaint, plaintiff has requested that the Court appoint him counsel. Plaintiff's request is denied for lack of exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The Court is also satisfied that plaintiff's motion for an order enjoining defendants from using their prison's speaker system at "subliminal and supraliminal" decibel levels is now moot in light of a letter dated October 31, 2000 from plaintiff informing the Court that defendants are no longer using the prison's speaker system to brainwash or harass plaintiff Finally, plaintiff requests that the Court issue an order directing the United States Marshals to serve each of the named defendants without fee, or alternatively send plaintiff the required service forms, and an order compelling various discovery. Those requests are denied pending the Court's determination of whether plaintiff, upon the filing of an amended complaint, has sufficiently pleaded a claim upon which relief can be granted.

ANALYSIS Standard of Review

Fedral courts shall engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 1915A(a). On review, courts shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted [or] seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. 1915A(b). The standards of Section 1915A apply even if the prisoner is not proceeding in forma pauperis. See Rowe v. Shake, 196 F.3d 778, 781 (7th Cir. 1999) (joining Second, Fifth, Sixth and Tenth Circuits in holding that Section 1915A applies even when prisoner pays full fee at outset).

Here, plaintiff is not proceeding in forma pauperis. As mentioned, this is not the first time plaintiff has sought relief from the federal court system. In May 1999, plaintiff brought a motion requesting permission to file his complaint with this Court in forma pauperis pursuant to 28 U.S.C. 1915. The Court denied his request because on three prior occasions a federal court had dismissed plaintiff's complaint on the ground that it was frivolous, malicious, or failed to state a claim upon which relief could be granted, and plaintiff could not show he was under imminent danger of serious physical injury. See 28 U.S.C. 1915(g). The Court, however, dismissed plaintiff's action without prejudice and held that plaintiff could file the complaint again upon the payment of the required filing fee. See Hernandez v. Terhune, No. 99-1886 WHA (PR), slip op. at 2 (N.D.Cal. Oct. 21, 1999). On April 20, 2000, plaintiff paid the filing fee of $150. Accordingly, although plaintiff is not proceeding in forma pauperis, the Court will review plaintiff's complaint pursuant to Section 1915A and construe plaintiff's pro se pleadings liberally. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Legal Claims

Plaintiff contends first that his constitutional rights were violated because perjured testimony, false evidence, and informant testimony was allegedly used to secure his conviction following his arrest in Ontario, California and pre-trial confinement in the San Bernardino County Jail (Compl. § 72). Plaintiff's argument, even if taken to be true, does not serve as a basis for recovery in this case. In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a plaintiff bringing suit under Section 1983 must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under Section 1983. See id at 487. Heck generally bars claims challenging the validity of an arrest, prosecution or conviction, including claims for false arrest and imprisonment. See Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998); see also Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) ( Heck barred plaintiff's claims that defendants lacked probable cause to arrest him and brought unfounded criminal charges against him). Here, a finding in favor of plaintiff would imply the invalidity of his conviction which has not yet been invalidated. The instant allegations, therefore, fail to state a cognizable claim under Section 1983 and must be dismissed without prejudice. See Edwards v. Balisok, 520 U.S. 641, 648 (1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995).

Plaintiff alleges next that the conditions of his confinement in state and county institutions following his conviction violated his civil and constitutional rights. For example, plaintiff asserts that he was assaulted by John Doe #30 after a riot in San Bernardino County Jail (Compl. § 72). He also contends that his life was threatened by defendant Timothy Smith when he was transferr to the Glen Helen Rehabilitation Center also in the County of San Bernardino (Compl. § 83), and that defendant Hartson assaulted him with a deadly weapon in his cell (Compl. § 132). These alleged unlawful acts, however, occurred, if at all, while plaintiff was confined in prisons located a the Central District of California. See 28 U.S.C. 84(c).

Venue may be raised by the Court sua sponte where the defendant has not yet filed a responsive pleading and the time for doing so has not run. See Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). Insofar as a substantial part of the events giving rise to this segment of plaintiff's claims occurred while he was confined in state and county institutions in the Central district, they are improperly before this Court, and are, therefore, dismissed without prejudice. Plaintiff, if he so chooses, can bring these allegations before a court in the Central District for the proper adjudication. See In re Hall, 939 F.2d 802, 804 (9th Cir. 1991) (dismissal for improper venue does not go to merits of case and, therefore, must be without prejudice).

As to plaintiff's allegations of conspiracy, Sections 1915A and 1915(e)(2) accord judges the unusual power to pierce the veil of the complaint's factual allegations and dismiss as frivolous the claims whose factual contentions are clearly baseless. See Denton v. Hernandez, 504 U.S. 25, 32 (1992). To pierce the veil of the complaint's factual allegations means that a court is not bound, a it usually is when making a determination based solely on the pleadings, to accept without questions the truth of the plaintiff's allegations. Ibid Although a complaint may not be dismissed simply because the court finds the plaintiff's allegations unlikely or improbable, a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them. Id at 32-33.

Pursuant to this authority, the Court finds plaintiff's claims of psychological warfare, indoctrination, and conspiracy lacking in any factual basis. See Neitzke v. Williams, 490 U.S. 319, 328 (1989) (claims which describe fantastic or delusional scenarios are considered factually baseless). Plaintiff alleges that the walls of the security housing unit at Pelican Bay State Prison are embedded with a sophisticated electronic and fiberoptic surveillance system more advanced than the speakers and microphones the K.G.B. of the former U.S.S.R planted in the cement walls of the United States embassy over 25 years ago (Compl. § 305). According to plaintiff, defendants have used their alleged surveillance system of cameras, audio speakers and prisoner informants to manipulate plaintiff into believing that his entire family was in prison and would be killed if he didn't take his own life first (Compl. § 232). Plaintiff contends further that defendants have conspired to convert plaintiff into a "Manchurian candidate" (Compl. § 290), and a government informant (Compl. § 291). The conspiracy has also served to allegedly destroy plaintiff's belief structure, import sexual and violent dreams into his mind while sleeping, send ethereal beings into his cell, and inject diabolical visions scheduled to unfold in the millennium. Because the Court finds that the facts alleged rise to the level of the irrational or the wholly incredible, plaintiff's conspiracy claims are dismissed with prejudice.

Finally, with only two exceptions, wrongful conduct that allegedly has taken place at Pelican Bay State Prison does not reach the level of constitutional violations that trigger relief Rather, these allegations can be categorized as isolated occurrences that do not amount to much more than harassment.

Plaintiff's allegations of verbal harassment and abuse fail to state a claim cognizable under Section 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir. 1981), aff'd sub nom., Kush v. Rutledge, 460 U.S. 719 (1983); see, e.g., Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998) (disrespectful and assaultive comments by prison guard not enough to implicate 8th Amendment); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (directing vulgar language at prisoner does not state constitutional claim). This is so even if defendants' verbal harassment was racially motivated. See Hoptowit v. Ray, 682 F.2d 1237, 1252 (9th Cir. 1982) (federal court cannot order guards to refrain from using racial slurs to harass prisoners).

Similarly, plaintiff's allegations that he was denied the medical care he requested fail to state a claim for relief. "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a Section 1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). On that rationale, allegations of nothing more than a difference of medical opinion as to the need to pursue one course of treatment over another is insufficient, as a matter of law, to state a claim for deliberate indifference to serious medical needs. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970).

Plaintiff's allegations that he was denied a meal one night and served cold meals on other nights also do not raise a constitutional claim. The Eighth Amendment requires that prisoners receive food that is adequate to maintain health; it need not be tasty or aesthetically pleasing. See LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) ("[t]he fact that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not amount to a constitutional deprivation") ( quoting Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985), cert. denied, 475 U.S. 1096 (1986)).

Plaintiff further alleges that defendant John Doe #5 violated his right to free exercise of religion when he revealed to other prisoners that plaintiff made crosses, resembling the crucifix, out of string and sent them in the mail (Compl.§ 205). Plaintiff's claim does not establish a free exercise violation, for a prisoner must show the defendants burdened the practice of his religion, by preventing him from engaging in conduct mandated by his faith, without any justification reasonably related to legitimate penological interests. See Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997). To reach the level of a constitutional violation, "the interference with one's practice of religion `must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine."' Id. at 737 ( quoting Graham v. C.I.R., 822 F.2d 844, 851 (9th Cir. 1987)). Plaintiff does not state a free exercise of religion claim. Again, he at most states a claim for harassment not cognizable under Section 1983.

It is true that prisoners enjoy a First Amendment right to send and receive mail. See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) ( citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). Nevertheless, a prison may adopt regulations or practices which impinge on a prisoner's First Amendment rights as long as the regulations are "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). The mere fact that plaintiff did not like that defendants opened and inspected his incoming mail is not enough to establish a constitutional violation. See, e.g., Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991) (upholding inspection of incoming mail).

It is also true that deliberately spreading rumors that a prisoner is an informant or snitch may state a claim for violation of the right to be protected from violence while in state custody. See Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). Plaintiff here alleges that defendant D.T. Hawkes offered false testimony about plaintiff's status as a snitch with a deliberate indifference to have plaintiff murdered (Compl.§ 279). Plaintiff's allegation, however, does not state a claim for deliberate indifference under the Eighth Amendment since law enforcement officers enjoy absolute immunity for false testimony in a variety of official fora, including in official reports, before a grand jury and at trial on charges that result from such a grand jury indictment. See Harris v. Roderick, 126 F.3d 1189, 1198-99 (9th Cir. 1997).

The only claims that the Court recognizes as leading potentially to a violation of plaintiff's Eighth Amendment rights are plaintiff's allegations that he was sprayed with pepper spray between three to six times by defendant Lieutenant Upton and struck at least ten times with a night stick and shot with taser darts by an unnamed defendant. Plaintiff, however, makes these allegation without elaboration or detail as to the circumstances surrounding the defendants' conduct. Although mace and taser guns may be reasonably used to quell disorders and to compel obedience, they cannot be used to punish a prisoner. See Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979); Michenfelder v. Sumner, 860 F.2d 328, 334-36 (9th Cir. 1988). Plaintiff's allegations regarding the use of pepper spray and taser darts are dismissed with leave to amend to allege and show, if possible, how Lt. Upton and the unnamed defendant actually and proximately caused the deprivation of which plaintiff complains. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (plaintiff must set forth specific facts showing how each defendant proximately caused the deprivation of a federally-protected right; sweeping conclusory allegations do not suffice).

CONCLUSION

For the foregoing reasons, plaintiff's complaint is DISMISSED for failure to state a claim under the authority of 28 U.S.C. 1915A. Plaintiff may amend ONLY to cure the deficiencies noted with his claims regarding the use of pepper spray and taser darts and he must amend within 30 days from the date of this order. The amendment must include the caption and civil case number used in this order and the words FIRST AMENDED COMPLAINT on the first page. Failure to amend within the designated time will result in final dismissal of this action and entry of judgment.

IT IS SO ORDERED.


Summaries of

Hernandez v. Terhume

United States District Court, N.D. California
Dec 12, 2000
No. C 00-0848 WHA (PR) (N.D. Cal. Dec. 12, 2000)
Case details for

Hernandez v. Terhume

Case Details

Full title:RUBEN T. HERNANDEZ, Plaintiff, C, A, TERHUME, et al., Defendants

Court:United States District Court, N.D. California

Date published: Dec 12, 2000

Citations

No. C 00-0848 WHA (PR) (N.D. Cal. Dec. 12, 2000)