United States District Court, E.D. California
GARY G. HAMPTON, Plaintiff,
ALKIRE, et al., Defendants.
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
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).
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.
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).
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. §
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1989), superseded by statute as stated in Lopez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.
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).
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.
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.)
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.)
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.)
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.
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.)
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.
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.)
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
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.)
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.)
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.
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.)
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