United States District Court, E.D. California
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
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