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Hammler v. Director of CDCR

United States District Court, E.D. California

July 11, 2019

ALLEN HAMMLER, Plaintiff,
v.
DIRECTOR OF CDCR, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims prison officials have failed to provide him with safe living conditions in violation of the Eighth Amendment. Presently before the court is plaintiff's motion to amend the complaint (ECF No. 49), the proposed second amended complaint (ECF No. 50), and plaintiff's motion for preliminary injunction (ECF No. 54). For the reasons set forth below, the court will grant the motion to amend, screen plaintiff's second amended complaint, and recommend that plaintiff's motion for preliminary injunction be denied.

         MOTION TO AMEND

         After defendants were served in this action, plaintiff filed a motion to amend along with a proposed second amended complaint. (ECF Nos. 49, 50.) Defendants were directed to file a response to plaintiff's motion. (ECF No. 51.) Defendants indicated they did not oppose plaintiff's motion to amend and requested the court screen the second amended complaint pursuant to 28 U.S.C. § 1915A. (ECF No. 55.) Accordingly, the court will grant plaintiff's motion to amend and screen the second amended complaint (SAC) below.

         SCREENING

         I. Legal Standards

         The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1) & (2).

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

         Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must contain more that “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

         The Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

         Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

         II. Allegations in the Second Amended Complaint

         Plaintiff names as defendant in this action Secretary of California Department of Corrections and Rehabilitation (CDCR), Scott Kernan. (ECF No. 50 at 1.) Plaintiff claims he has been deprived of safe living conditions in violation of his Eighth Amendment rights. Plaintiff states he has been housed on a Sensitive Needs Yard (SNY) since 2009 because of his status as a convicted sex offender and former gang member. (Id. at 5-6.) Plaintiff alleges that recently his safety has become endangered due to an increase in the number of gang members housed on SNYs. Plaintiff states he has received rules violation reports (RVRs) when he has refused housing assignments out of fear that potential cellmates would assault him when they found out he was a sex offender. (Id. at 9-10.)

         Plaintiff alleges the policy of housing sex offenders, a group he claims has been targeted for physical assault by other inmates, with gang members on SNYs violates his rights. He alleges defendant Kernan was aware of the danger to inmates such as plaintiff because of a report by the Office of the Inspector General published in 2015. (Id. at 14-15.)

         Plaintiff has added an additional claim in the SAC. He alleges he entered into an agreement with CDCR when he entered SNY. (Id. at 18.) Plaintiff alleges that the terms of the agreement stated that he would leave “gang politics behind in exchange for SNY placement where he was told he would be provided with predatory free living conditions and an environment devoid of gangs and their politics.” (Id. at 6, 18-19.) Plaintiff claims he has kept up his end of the bargain by becoming an SNY prisoner, which carries a stigma in the prison system and by severing his ties to the Bloods ...


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