United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL
OF ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF
[ECF NO. 30]
Allen Hammler is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Plaintiff's second amended complaint,
filed on October 3, 2019.
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 on
which relief may be granted, ” or that “seek
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief. . .
.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Moreover, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678-79; Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). The “sheer possibility that a
defendant has acted unlawfully” is not sufficient, and
“facts that are ‘merely consistent with' a
defendant's liability” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
Court accepts Plaintiff's allegations in the first
amended complaint as true only for the purpose of
the sua sponte screening requirement under 28 U.S.C.
is in the custody of the California Department of Corrections
and Rehabilitation (“CDCR”) and is housed at the
California State Prison, Corcoran (“CSP”).
is an ex-member of the Bloods, a street and prison gang. In
2009, he entered into a contract with the CDCR agreeing to be
housed in the Sensitive Needs Yard (“SNY”) where
he would be housed with other prisoners that were not gang
members. In exchange for disassociating himself with the
Bloods gang and entering the SNY, Plaintiff was to be
provided with an environment where he could live and program
free from gangs. The agreement was signed.
2016, Plaintiff was no longer able to program on the SNY due
to the formation of a new SNY. Plaintiff asserted his right
to be provided with a living environment in accord with the
terms of the 2009 agreement. Plaintiff has had the
state's agents and employees refuse to honor the contract
and has submitted a number of inmate appeals regarding the
conditions on the SNY and its gang infestation. Plaintiff has
also filed other complaints regarding a missing inmate appeal
that was dated August 8, 2018.
has been seeking since 2016 to avoid being housed on the SNY
and has requested that he be voluntarily housed in the
Administrative Segregation Unit (“ASU”).
Plaintiff has had correctional officers poke fun at his
safety concerns about being housed on the yards with gangs.
Around August 8, 2018, Correctional Officer Ehlers read
Plaintiff's August 8, 2018 grievance and gave it to gang
members knowing that it would inflame them. A few days later,
Plaintiff was in the recreation yard and had a friendly gang
member tell him in confidence that a high ranking member of
his gang and other SNY gangs had placed a “green
light” (murder hit) on Plaintiff for speaking ill of
them in documents. This occurred at Sacramento State Prison.
was subsequently transferred to CSP. On September 5, 2018,
Plaintiff was informed by counselor S. Castillo that he would
be called to the ICC on September 6, 2018. Plaintiff told
Castillo that he had housing concerns that needed to be
addressed with the ICC that had to do with him being unable
to continue being housed on the SNY. Plaintiff told Castillo
that he has real safety concerns and that he had not been
able to safely program on any SNY. Plaintiff informed
Castillo that he had not been housed on a SNY unless he was
forced to for three years. Plaintiff also told Castillo that
he had filed a civil action on his continued housing on the
SNY. Plaintiff was told by Castillo that he would need to
address his concerns to the ICC in order to be voluntarily
housed in the Security Housing Unit (“SHU”).
Castillo had Plaintiff sign a form that he had been informed
of the pending ICC and waived the mandatory seventy-two hour
notice to prepare for the hearing. Castillo told Plaintiff
that he would see him the next day and took the paperwork and
September 6, 2018, Correctional Officers Corona and Loza went
to Plaintiff's cell to escort him to the ICC. Plaintiff
was provided with a size 5X jumpsuit which he refused to
wear. Because Plaintiff refused to wear the jumpsuit he was
said to have refused to attend the ICC. Plaintiff received a
CDCR 128-G that recorded the ICC's actions and saw that
facts had been fabricated by Defendants Parks and Camp in
concert with others.
128-G records that Defendant Mejia, the psychologist in
attendance stated that Plaintiff's mental health was
unlikely to decompensate while he was retained in the
SHU/ASU. The document also stated that Defendant Galaviz
ensured that effective communication was achieved with him
although he was not in attendance at the ICC. The 128-G
recorded that Plaintiff had been placed in the ASU on March
27, 2018, at Sacramento State Prison for battery on a police
officer when he had not been. The 128-G recorded that during
a pre-ICC case conference, Plaintiff had met with Defendant
Galaviz and that Galaviz reiterated the Committee's
recommendation and that Plaintiff stated that he understood,
but that Defendant Galaviz did not meet with him and falsely
recorded that Plaintiff had waived the right to appear. The
form also stated that Plaintiff was interviewed during the
ICC but he could not have been since Plaintiff was not in
attendance. The form recorded that Plaintiff can safely
program on CSP's SNY pending transfer to a “180
design facility” and the ICC elected to house Plaintiff
on the SNY. Plaintiff would have objected to both these
actions had he been at the ICC and would not have agreed to
be housed on the SNY.
has not had a cellmate since 2015 and will accept no
alleges that the actions of the defendants were slanderous,
were taken in retaliation for his voicing ...