Womack v. Baughman

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff is a state prisoner, proceeding without counsel. Plaintiff has sustained three strikes under 28 U.S.C. § 1915(g). (ECF No. 11 at 2.) Plaintiff's motion for reconsideration of the April 18, 2019 order requiring plaintiff to pay the filing fee remains pending, but in the meantime, plaintiff filed two motions for preliminary injunctive relief. As discussed below, the undersigned recommends that the motions be denied.

         II. Background

         A. Original Complaint

         At the time plaintiff signed his original complaint on November 7, 2017, he was housed in New Folsom, Represa, and alleged he had been attacked by four inmates on October 30, 2017. Plaintiff named three defendants and alleged each acted as follows:

         1. Psychologist Marquez - While participating in the EOP^[1] program, plaintiff informed Marquez that plaintiff had filed numerous appeals complaining that staff at New Folsom (“CSP-SAC”), High Desert State Prison (“HDSP”), and Corcoran State Prison have all attempted to get plaintiff hurt by inmates, but Marquez refused to document or report it. Plaintiff filed an appeal against Marquez for her refusal. Marquez then came to plaintiff's cell with the appeal and told plaintiff that Marquez and Correctional Officer Lee decided to remove plaintiff from the EOP program and return him to the level four mainline. Plaintiff objected that Marquez and Lee were putting plaintiff's life in danger “as she well knew;” Marquez returned the appeal to plaintiff and told him she was removing him from the program. (ECF No. 1 at 4.) Plaintiff filed another appeal in response. Subsequently, plaintiff was sent to the level four mainline, and on October 30, 2017, plaintiff was attacked by four inmates on the yard. Plaintiff and the four inmates were pepper sprayed; plaintiff contends he was set up.

         2. Correctional Officer, Sgt. Miss Lee - plaintiff claims Lee “was directly responsible for the attack. (ECF No. 1 at 5.)

         3. Warden Baughman - plaintiff claims the warden is responsible for the safety and security of the inmates. (ECF No. 1 at 5.)

         In addition to money damages, plaintiff seeks “safe placement from level four correctional officers.” (ECF No. 1 at 6.)

         B. Plaintiff's Amended Complaint

         On February 18, 2018, plaintiff signed an amended complaint which was filed on February 23, 2018, as a matter of course. Fed.R.Civ.P. 15(a). Plaintiff sets forth his experiences at prisons prior to his transfer to CSP-SAC in 2017, and reiterates his original claims against Marquez, and elaborates that Marquez told plaintiff that she understands his safety concerns are connected to his being in the EOP program. (ECF No. 9 at 11.) Plaintiff was rehoused on the mainline on January 3, 2017. (ECF No. 9 at 11-12.) Initially, plaintiff refused to leave his cell.

         In 2017, plaintiff was assigned to work in the Building 2 dining hall, which plaintiff argues was to set plaintiff up for an inmate attack because plaintiff was the only inmate from Northern California; the other seven inmates assigned to work there were all “gangbangers from southern California, ” who “started disrespecting and threatening plaintiff.” (ECF No. 9 at 13.) On several occasions, plaintiff informed the dining hall supervisor, Correctional Officer N. West, ^[2]that plaintiff was being set up to be attacked by gangbangers. On September 28, 2017, West referred plaintiff to mental health stating “[p]laintiff exhibits bizarre behavior, that inmate feels a sense of victimization.” (ECF No. 9 at 14.) Plaintiff requested a job change, which was granted, but West withdrew the change application because West said plaintiff was the best worker. Following several occasions where plaintiff refused to report to work because of his safety concerns, and West insisted plaintiff return to work and threatened to write a disciplinary if he did not, plaintiff reported back to work at the dining hall. About 25 days later, plaintiff was attacked on C-yard by four gangbangers, apparently around October 30, 2017.^[3]

         Plaintiff contends that the inmate attack was the result of retaliation, an alleged pattern of continuous retaliation initially starting at CSP-SAC in the year 2010, and continuing through his housing at High Desert State Prison 2014, and at Corcoran State Prison in 2015. Plaintiff points out that he warned defendants at CSP-SAC that if he was rehoused on the Level 4 mainline he would be attacked. (ECF No. 9 at 15.) He argues that his safety concerns about correctional officers' “continuous actions of setting plaintiff up to be attacked by inmates” still has not been addressed, and he “is still in imminent danger until correctional staff and mental health staff honestly address this retaliation issue.” (ECF No. 9 at 15.)

         In addition to Marquez, Lee, and Baughman, plaintiff names as defendants: A. Moore, CSE (appeals responder); CEO M. Felder; psychologist Dr. Weyer; Chief Psychiatrist K. Francesch; Chief Psychiatrist J. Heitkamp, M.D.; Deputy Director J. Lewis (Appeals Branch, Elk Grove); K. Klingenberg (Health Care Appeals); D. Knipp (Health Care Appeals); S. Chaiken, Ph.D. (Chief Psychologist); Correctional Counselor J. Gibson; Correctional Counselor “John Doe;” and Social Worker Sandra Davis. (ECF No. 9 at 3-4.) In addition to money damages, plaintiff seeks expungement of all prison disciplinaries from plaintiff's central file, specifically, write-ups for refusing to accept a cellmate for ...