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Bjorlin v. Hubbard

April 26, 2010

DANIEL P. BJORLIN, PLAINTIFF,
v.
T. HUBBARD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. On March 5, 2010, this court directed service of the amended complaint upon nine of the defendants.*fn1 Although defendants have not yet formally appeared in this action, this court has twice ordered a response to plaintiff's motions for preliminary injunction. Findings and Recommendations recommending denial of plaintiff's first motion for a preliminary injunction are currently pending before the district judge.

Pending before the undersigned is plaintiff's second motion for preliminary injunctive relief, filed on March 4, 2010, at docket # 26 and # 28, to which the Attorney General's Office has filed a response on behalf of defendants,*fn2 which includes a request for the sanction of dismissal for plaintiff's alleged violation of Rule 11(b) of the Federal Rules of Civil Procedure. Also pending is plaintiff's April 7, 2010 (docket # 34), motion for the court to order that plaintiff and defendants take "a polygraph and submit to sodium penthal [sic] exam," which motion is frivolous and is summarily denied. It was noted within the Findings and Recommendations, filed on March 1, 2010 (docket # 23), recommending denial of the first motion for preliminary injunction that plaintiff in having been moved from D-7 to D-6 had apparently been moved away from defendant Callison's immediate sphere, the defendant about whom he had complained the most within his first motion.

Second Motion for Preliminary Injunction

Plaintiff alleges dramatically in his most recent motion for preliminary injunctive relief that CDCR officials are engaging in retaliatory actions to have him "murdered," and although he has been put up for transfer, is seeking an "emergency transfer" for his safety. Docket # 26, p. 1; docket # 28, p. 1. The court has previously set forth the claims of the second preliminary injunction motion at issue herein,*fn3 noting that plaintiff now claims that on February 12, 2010, he received a retaliatory*fn4 serious rules violation report for refusing to comply (along with an inmate J. Johnson, CDC # F-68537, who was his cellmate) with an order to exit their cell for a search, although he alleges that he did comply.*fn5 Docket # 26, pp. 2, 5; docket # 28, p. 5. The serious rules violation was reported by a non-defendant, Correctional Sergeant K. Lowther.

Docket # 26, pp. 2, 5.

Plaintiff claims that another non-party, Correctional Officer (C/O) G. Jones, told plaintiff and Johnson that he was going to separate them "for that shit you did to Mr. Swart and Mr. E. Cal[l]ison," apparently meaning bringing the instant lawsuit (as C/O's Swart and Callison are two of the defendants named herein) and the prior injunctive relief motion (docket # 28, p. 2). Further, plaintiff alleges that non-party C/O Achernecht*fn6 and defendant Swart, also on Feb. 12, 2010, threatened both his cellmate, J. Johnson, and himself despite (or because of) their having been moved from D7 to D6 with getting "even." Docket # 28, p. 2.

Thereafter, on the same day, C/O G. Jones apparently attempted to house plaintiff with another inmate, named Coffman (# T-81496), whom plaintiff alleges is a documented skinhead sentenced to two life terms and serving a 42-month SHU term in the administrative segregation unit for stabbing a black inmate named D. Irvin. Docket # 28, at 3-4. Plaintiff claims Irvin was "a direct associate of plaintiff['s]," which makes Coffman plaintiff's enemy.

Id., at 5. Plaintiff claims that his placement with this inmate poses a substantial risk of serious harm; he also avers that Coffman is homosexual and is of another race.*fn7 Id., at 3-4. Plaintiff has apparently refused to accept this cellmate and has refused to sign a compatibility chrono because he fears for his life and believes signing the chrono would protect the staff from liability. Id, at 4.

Plaintiff includes another copy of a serious rules violation report, also arising from events on Feb. 12, 2010, wherein C/O G. Jones reports that plaintiff refused to comply with the order to accept Coffman as a cellmate and stating that the two have been evaluated and deemed compatible with HDSP operational procedure and that they are not documented enemies. Id., at 8.

Plaintiff asks the court to order that his transfer be expedited (as noted) and asks that, until then, he be housed with inmate J. Johnson. In its prior order (docket # 29, pp. 3-4), the court also took judicial notice of an exhibit*fn8 in another case before the undersigned, Sargent v. Statti, et al., CIV S-09-1472 GGH P, wherein a response from a defendant in that case, Warden McDonald, had been ordered (another case wherein the amended complaint had not yet been served). The undersigned observed that among the exhibits attached to the Attorney General's response to the preliminary injunction motion in Sargent was a document arguably quite relevant to the instant action, a copy of a handwritten letter or "kite" directed to "Ice," apparently "confiscated" on February 23, 2010. CIV S-09-1472 GGH P, docket # 52, pp. 56-57. Another exhibit in that filing summarizes the circumstances of discovery of the "kite" and its contents as follows:

On February 23, 2010 officer Eckelbarger confiscated a kite (letter) from inmate Johnson, CDC # F-68537, FDB6-121L while inmate Johnson was being searched to go to ASU exercise yard. The kite was folded very small with a rubber band wrapped around it. The kite was addressed to "ICE" which is the documented AKA for inmate Bjorlin P-78253, FDB-6-112L. The kite contained the names of officers K. Swart, E. Callison, and T. Smith. In the body of the kite inmate Johnson spoke to circumventing a legal process by seeing the mental health department and being placed on EOP status. Also in the note inmate Johnson spoke to filing multiple briefs and paperwork against officers K. Swart, E. Callison and T. Smith in order to keep their names "coming up", stating in part, "we must tear their asses up from different directions", " these fools will never have time to let shit settle down because we're on that ass like some sharks in bloody fucking water, see Callison's name is coming up too much and Swart's ass is in the meat grinder," and " when the shit hits the fan its going to be a fucking catastrophic disaster for those slimy dog sons of bitches, they will not have a second to recuperate". A copy of this kite was taken to the Litigation coordinator, and placed in inmate Johnson's ASU 114 file.

This exhibit is signed by E. Callison and dated February 26, 2010. CIV S-09-1472 GGH P, docket # 52, p. 14.*fn9 The court further noted that although Callison had corrected some of the spelling in the original "kite," the above summary of the contents of the confiscated letter appeared to be neither inaccurate or unfair, also observing that the CDC numbers provided for both plaintiff and inmate Johnson in the memo matched those identifying plaintiff herein and his erstwhile cellmate, Johnson.

Response

Included in their response, the Attorney General's Office has authenticated the above-referenced "kite," producing a declaration by C/O D. Ecklebarger, dated March 19, 2010, with attachments that include a copy of the CDC 128 chrono written by D. Ecklebarger regarding discovery of the kite or letter under the insole of one of inmate Johnson's shoes on Feb. 23, 2010, as well as a copy of the previously referenced kite/letter itself. The Office of the Attorney General has also moved to impose Rule 11 sanctions in the form of a dismissal in response to the court's having indicated that it would consider such a motion contending that plaintiff herein has violated Rule 11(b) of the Federal Rules of Civil Procedure.

The Office of the Attorney General states that an investigation into plaintiff's claims of threats to his safety and being at risk was ordered by High Desert State Prison (HDSP) defendant Warden McDonald*fn10 and included an interview by Security Squad Lieutenant Gamberg (not a defendant). Response, pp. 1-2 & Declaration (Dec.) of M.D. McDonald, ¶¶ 3-4. The copy of the memorandum of Gamberg's March 15, 2010, interview with the plaintiff is attachment 1 to the McDonald Dec., which records that plaintiff stated that he had filed allegations with the courts regarding staff abusing and threatening him and that he told Gamberg that staff searches his cell constantly and destroys his property. He is also quoted as having answered "yes" to the question of whether his life was at risk and also stated that he was "scared of Officer[]s Ackernack [sic], Swart, Callison, Jones, and T. Smith" who "constantly screw with" plaintiff, having his "cell searched all the time." McDonald Dec., attachment 1. He also stated that he was threatened by Officers Swart, Smith and Callison. Id. Correctional Lt. Gamberg states in the memo that plaintiff further stated that he would only feel safe if housed with Inmate Johnson and that the above-mentioned staff continue to harass him and write him up to stop his transfer. Id. He also apparently said that Swart harasses him by having his cell searched without any reason and that he felt his safety was jeopardized by the instant lawsuit and that the only solution was for him to be transferred as soon as possible. Id. Gamberg also reports that when plaintiff was asked about specific threats, plaintiff would not comment saying that he had sought relief with the courts. Id. Defendant McDonald points out that the three officers that plaintiff said were threatening him, [defendant] Swart, [non-party] Smith and [defendant] Callison, are all assigned to Building 7, where plaintiff has not been housed since Feb. 11, 2010, and that plaintiff did not state that either Jones or Ackernecht threatened him. McDonald Dec., ¶ 9.

According to defendant McDonald, plaintiff has been housed in the HDSP administrative segregation unit (ASU) for possession of a weapon, since October 21, 2008. Response, at 2 & McDonald Dec., ¶ 5. Defendant Warden McDonald recounts that plaintiff had been moved on Feb. 11, 2010, from Facility D's Building 7 to Building 6 in the same facility, also an administrative segregation unit, along with his cellmate Johnson as a result of a prior court order.*fn11 Id. According to McDonald, plaintiff was separated from his cellmate on Feb. 12, 2010, and placed in another cell due to plaintiff's own misconduct on that day, which included plaintiff ...


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