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Hammler v. Kernan

United States District Court, E.D. California

October 16, 2019

ALLEN HAMMLER, Plaintiff,
v.
SCOTT KERNAN, et.al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF NO. 30]

         Plaintiff Allen Hammler is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Plaintiff's second amended complaint, filed on October 3, 2019.

         I.

         SCREENING REQUIREMENT

         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 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).

         A 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. 2002).

         Prisoners 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.

         II.

         COMPLAINT ALLEGATIONS

         The 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. § 1915.

         Plaintiff is in the custody of the California Department of Corrections and Rehabilitation (“CDCR”) and is housed at the California State Prison, Corcoran (“CSP”).

         Plaintiff 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.

         In 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.

         Plaintiff 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.

         Plaintiff 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 left.

         On 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.

         The 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.

         Plaintiff has not had a cellmate since 2015 and will accept no cellmate.

         Plaintiff alleges that the actions of the defendants were slanderous, were taken in retaliation for his voicing ...


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