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Hampton v. Alkire

United States District Court, E.D. California

August 30, 2019

GARY G. HAMPTON, Plaintiff,
ALKIRE, et al., Defendants.



         I. Introduction

         Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

         Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis is granted.

         Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

         The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 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. 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 when 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 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless.”); 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)). In order to survive dismissal for failure to state a claim, a complaint must contain more than “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.” Id. at 555. However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

         II. Plaintiff's Allegations

         Named as defendants are Lieutenant Alkire, Sergeant Sylva, Sergeant Hicks and Correctional Officer Garrett. Plaintiff alleges that he is housed on a sensitive needs yard (“SNY”) at High Desert State Prison (“HDSP”). (ECF No. 1 at 7.) Plaintiff alleges that there are new “drop out gangs” on his SNY classified as “STG.” (Id.) Plaintiff alleges that these gangs are known for extorting sex offenders. (Id.) Plaintiff's convictions apparently involve sex offenses.

         On July 20, 2019, a STG gang member named Sammy approached plaintiff and stated that if plaintiff did not give him one hundred dollars by the end of the day, the Northern Riders would attack plaintiff. (Id. at 9, 10.) Plaintiff alleges that this conversation was all on the camera footage for building 5, C Section dayroom. (Id. at 9.)

         That evening, plaintiff decided not to go to evening chow. (Id. a 10.) After the building 5 inmates returned from chow, plaintiff gave fake paperwork to several inmates, including the black inmate spokesperson. (Id.) This paperwork apparently falsely described plaintiff's convictions as not involving sex offenses. Plaintiff alleges that the black inmate spokesperson told plaintiff that the black inmates would not allow the STG gang members to hurt or extort him. (Id.)

         Plaintiff alleges that an inmate later found plaintiff's on-line records relating to Megan's Law, and everything fell apart. (Id.) Plaintiff alleges that the blacks were about to kick off a riot for him because they believed his paperwork. (Id.) After plaintiff's name was discovered on the Megan's Law web site, plaintiff's life was in danger. (Id.) Plaintiff did not leave his cell for six days. (Id.)

         Plaintiff finally snuck to the B-yard program office. (Id.) Plaintiff explained everything to defendant Sylva. (Id.) Defendant Sylva shut plaintiff down and claimed that plaintiff made everything up. (Id. at 10-11.) Defendant Sylva told plaintiff that being a sex offender on a SNY was not a safety concern. (Id. at 11.) Defendant Sylva ordered plaintiff to return to his building. (Id.) Plaintiff refused. (Id.) Plaintiff was cuffed and removed from the program office. (Id.)

         Plaintiff went suicidal. (Id.) When plaintiff explained everything to Mental Health, they quickly typed a report and returned plaintiff to the program office. (Id.) With this report, defendant Sylva was forced to open up a safety concern investigation. (Id.) Defendant Alkire made defendant Garrett plaintiff's investigative employee for the investigation. (Id.) Plaintiff claims that defendant Garrett refused to document plaintiff's safety concerns. (Id.) Defendant Garrett only wrote that plaintiff obtained a gambling debt that he was unable to pay and was threatened by Sammy out of B5-244. (Id.)

         Plaintiff was placed in the “hole” pending the investigation. (Id.) If the investigation verified that plaintiff was gambling and approached by inmate Sammy, plaintiff would be transferred to another prison. (Id.)

         On August 1, 2019, plaintiff went to committee. (Id.) The committee recommended that plaintiff be returned to B yard because plaintiff's safety concerns were deemed unreliable. (Id.) Plaintiff was told that defendants Garrett and Alkire both reviewed the video footage and claimed that plaintiff never made contact with an inmate named Sammy out of B5-244. (Id.) Plaintiff claims that defendants Garrett and Alkire falsified documents regarding his safety concerns. (Id.)

         Plaintiff was then placed in Building 2 and housed with a STG gang member who had just gotten out of the Security Housing Unit (“SHU”) for stabbing another inmate in August 2018. (Id. at 12.) Plaintiff's new cellmate demanded to see plaintiff's paperwork and wanted to know why he was in prison and coming from the hole. (Id.) Plaintiff lied and started thinking of a way to get to safety. (Id.)

         A few hours later, plaintiff's new cellmate received a kite from an inmate named Shorty indicating that plaintiff was all bad and owed the Northern Riders a lot of money. (Id.) The kite indicated that if plaintiff did not pay the money back, he (Shorty) was going to have to remove plaintiff from the yard with force. (Id.) Plaintiff alleges, “he gave me a opinion to get off the yard or be attacked.” (Id.)

         The next morning, plaintiff staged a fight with inmate Collins because he knew if he just went to the program office, they would throw him to the wolves. (Id.) Inmate Collins signed a form stating that he and plaintiff could program safely together. (Id.) Plaintiff refused to sign an A-12 form stating that he and inmate Collins could program safely together. (Id.) Prison officials searched for the kite his cellmate received from inmate Shorty. (Id.) After the kite was found, plaintiff was taken to see defendant Hicks at 8:30 a.m. (Id.) Defendant Hicks told plaintiff that he did not believe plaintiff's safety concerns. (Id. at 4.) Defendant Hicks told plaintiff that plaintiff was going back to the hole because plaintiff refused to sign the A-12 form regarding the inmate plaintiff had just assaulted. (Id.)

         Plaintiff claims that he asked defendant Hicks about the kite that was found indicating that his life was in danger. (Id.) Defendant Hicks denied all knowledge of the kite. (Id.) Plaintiff claims that the officer who found the kite immediately took it to defendant Hicks.

         After discussing his safety concerns with defendant Hicks, plaintiff was placed in the office cage at around 9:00 a.m. without cuffs or any restraints. (Id. at 13.) Plaintiff was told that he was returning to the hole. (Id.) Hours later, defendant Alkire arrived and told plaintiff to turn around and cuff-up because plaintiff was returning to B yard. (Id.) Plaintiff said, “No, I'm not.” (Id.) During this conversation, plaintiff told defendant Alkire that he wanted to sign a form declaring his cellmate and inmate Collins as his enemies. (Id. at 4.) Apparently, this declaration may also be made on a A-12 form. (Id.) Plaintiff claims that both defendants Hicks and Alkire would not allow him to sign this form. (Id.)

         Plaintiff and defendant Alkire went back and forth arguing until plaintiff said, “Go ahead and bring the force, tase me, beat me, do what you got to do cause I'm not going back to B yard.” (Id.) Defendant Alkire leaned forward and said, “So, you're going to kill one of my ...

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