Hammler v. Hernandez et al

Filing 21

REPORT AND RECOMMENDATION of United States Magistrate Judge Re: Defendants' Motion to Dismiss [ECF No 15 ]. Signed by Magistrate Judge Mitchell D. Dembin on 12/11/2018.(All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALLEN HAMMLER,

Case No.: 18cv259-CAB-MDD
Plaintiff,

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v.

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J. HERNANDEZ, et al.,
Defendants.

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REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
RE: DEFENDANTS’ MOTION TO
DISMISS
[ECF No. 15]

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This Report and Recommendation is submitted to United States

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District Judge Cathy Ann Bencivengo pursuant to 28 U.S.C. § 636(b)(1) and

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Local Civil Rule 27.1(c) of the United States District Court for the Southern

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District of California.

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For the reasons set forth herein, the Court RECOMMENDS
Defendants Motion to Dismiss be GRANTED.
I. PROCEDURAL HISTORY
Plaintiff Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro

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se and in forma pauperis. (ECF Nos. 1, 5). On February 2, 2018, Plaintiff

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filed a complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1). Plaintiff’s

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complaint sets forth claims against two individuals alleging that they
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retaliated against him in violation of the First Amendment and failed to

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protect him in violation of the Eighth Amendment. (Id. at 3-25).

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On August 9, 2018, Defendants moved to dismiss the failure to protect

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claim and all claims against both defendants filed in their official capacities.

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(ECF No. 15-1 at 5-7). Defendants contend that Plaintiff may not proceed

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with his failure to protect claim because he has not alleged a physical injury,

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as required by 42 U.S.C. § 1997e(e), and that Eleventh Amendment

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Immunity prohibits Plaintiff from suing Defendants in their official

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capacities. (Id.). Defendants further argue that they are entitled to qualified

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immunity as to Plaintiff’s failure to protect claim. (Id. at 7).

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Plaintiff opposes the motion to dismiss on the grounds that he was

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subjected to intentional torture for no penological reason. (ECF No. 18 at 3).

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In response to Defendants’ Eleventh Amendment immunity argument,

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Plaintiff “acquiesces and withdraws claims as it relates to Defendants’

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liabilities in their official capacities.” (Id. at 2).
Defendants reply that Plaintiff never specified the intentional torture

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he suffered and concedes that he never suffered a “flesh wound.” (ECF No. 19

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at 3).

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II. BACKGROUND FACTS
These facts, taken from the Complaint, should not to be construed as

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findings of fact by the Court. Plaintiff has filed several 602 Complaints

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against various Corrections Officers for assaults occurring on three separate

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occasions. (ECF No. 1 at 3). Plaintiff first alleges that he was assaulted by

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Corrections Officer Avilez on November 7, 2016. (Id.). After filing a

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complaint following the Avilez incident, the named officers and their co-

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workers began treating Plaintiff with “contempt.” (Id.).

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On November 15, 2016, Defendant Hernandez and Corrections Officer
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Figueroa, while escorting Plaintiff from his cell to a group meeting, had

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Plaintiff in both wrist and leg restraints. (Id. at 4). During this escort,

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Defendant Hernandez began to violently shake Plaintiff by the arm,

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commonly known as “rag dolling” him. Plaintiff believed that Defendant

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Hernandez was attempting to provoke Plaintiff, whose reaction would give

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Defendant Hernandez a reason to slam Plaintiff to the ground. (Id.).

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Plaintiff told Hernandez that Plaintiff knew what the officer was attempting

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to do and Hernandez responded “[S]hut the fuck up and walk. You turn

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around and look at me again and you[‘re] going down.” (Id.). Once they

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arrived at Plaintiff’s group meeting, Defendant Hernandez forced Plaintiff to

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kneel on a slippery metal stool to remove Plaintiff’s leg restraints. (Id. at 4-

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5). Plaintiff indicated he was about to fall off the stool and Defendant

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Hernandez pushed Plaintiff, causing his knee to slide off the stool. (Id. at 5).

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Plaintiff told Hernandez that he would be filing a complaint, to which

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Hernandez responded “I’m gonna escort you to yard and we’ll see if you’ll be

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talkin’ all that shit… just go to yard and don’t bitch out.” (Id.).

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Plaintiff then spoke with Lieutenant Canedo and relayed his interaction

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with Defendant Hernandez. (Id.). Plaintiff requested that Defendant

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Hernandez be prohibited from escorting Plaintiff in the future. Canedo told

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Plaintiff that he would look into it. (Id. at 6). However, both Hernandez and

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Figueroa returned to escort Plaintiff back to his cell following his group

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meeting. During the return walk, Defendant Hernandez told Plaintiff “You

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went crying to the Lieutenant, I knew you were a bitch.” (Id.).

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When the three men returned to Plaintiff’s cell, Plaintiff again knelt to

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have his leg restraints removed, all the while receiving taunts from

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Defendant Hernandez. (Id. at 7). Defendant Hernandez indicated that

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Plaintiff better stay in the Administrative Segregation Unit (“ASU”) or
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Hernandez would make sure Plaintiff was “…fucked up out there,” referring

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to the yard. (Id.).

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On the same day, Plaintiff met with clinical Psychologist Nance. (Id.).

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Plaintiff discussed his interaction with and threats from Defendant

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Hernandez. Defendant Hernandez overheard the conversation, during which

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Defendant Hernandez made himself visible to Plaintiff, but not Nance, and

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began making “crybaby” sounds and wiping away invisible tears. (Id.).

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When Plaintiff pointed this out to Nance, Hernandez stepped out of sight

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behind a wall, though Nance heard Defendant’s crybaby noises. (Id. at 9).

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At the end of Plaintiff’s session with Nance, Defendant Hernandez

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attempted to both confiscate Plaintiff’s shoes and escort Plaintiff back to his

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cell. Plaintiff refused to allow Hernandez to escort him and made officers

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Sears and Maldonado promise that Hernandez would not be his escort. (Id.).

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On his way back to his cell Plaintiff was intercepted by his psychologist, Dr.

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Loebenstein, who requested to speak with Plaintiff. (Id. at 10). Plaintiff

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reported his experiences with Defendant Hernandez to Dr. Loebenstein. (Id.)

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On November 17, 2016, Plaintiff was in his cell when Defendant

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Hernandez kicked the cell door, startling Plaintiff. (Id.). Hernandez

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indicated that he was escorting Plaintiff to his meeting with Dr. Loebenstein.

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Plaintiff refused to go with Defendant Hernandez, who then called Plaintiff a

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“bitch,” and left. Dr. Loebenstein then went to Plaintiff’s cell to see why

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Plaintiff didn’t go to his appointment. Plaintiff again indicated that he would

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not be escorted by Defendant Hernandez. (Id.).

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On November 28, 2016, Plaintiff was escorted by Sergeant Alvarez and

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Corrections Officer Dies to the Sergeant’s office, where Plaintiff was

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interviewed on tape regarding Defendant Hernandez’s threats. (Id. at 11).

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Upon returning to his cell following the interview, Plaintiff discovered officers
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Hugh and Barrientos, “under the guise of searching for contraband…had

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trashed [his] cell.” (Id.). The officers took a number of Plaintiff’s legal books

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while others were torn in half. Plaintiff told the officers that what they had

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done was retaliation and that he would report them, to which Officer Alvarez

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responded, “with a sly grin,” that they were allowed to search Plaintiff’s cell.

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(Id.). Plaintiff later discovered that the officers had gone through his legal

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files and a file containing “documents, CDCR 602 Complaints, 22 Forms, etc.”

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was missing. (Id. at 12).

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On November 29, 2016, Plaintiff was escorted to his group meeting by

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Officer Rogers. Following the meeting Rogers was about to escort Plaintiff

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back to his cell when Defendant Hernandez joined the two and immediately

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began berating Plaintiff. (Id. at 12-13). Defendant Hernandez told Plaintiff

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that “snitching” on him would not change anything and reminded Plaintiff

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that Hernandez could “still get close to you, you little bitch.” (Id. at 13).

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Defendant Hernandez told Plaintiff that were it not for the security cameras,

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Hernandez would “fuck [Plaintiff] up.” Plaintiff stayed face forward, fearing

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that Hernandez would strike him from behind if he turned his head or

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engaged with Hernandez. (Id.). Later, Plaintiff questioned Rogers about

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what he overheard during the escort and Rogers indicated that he “hadn’t

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been paying attention.” (Id.).

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On December 6, 2016, Plaintiff was in his cell when Inmate Jennings,

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escorted by Defendant Magallanes, stopped at Plaintiff’s cell and gave

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Plaintiff a “kite” (letter) through the food port in Plaintiff’s door. (Id. at 14).

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The kite was from Inmate Harris, who indicated that he was writing “on

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behalf of and at the behest of Defendant Hernandez.” Harris wrote that

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Plaintiff had better not go forward with his complaints against Hernandez or

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Harris would have to get involved. (Id.). Harris indicated that Defendant
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Hernandez “is the way he [Harris] feeds his kids.” (Id. at 15). Harris also

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reminded Plaintiff that he was Plaintiff’s first cellmate and that Harris knew

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where Plaintiff’s children live. (Id.)

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Plaintiff then called for a staff member and gave the kite to the first one

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to arrive, Dr. Saltzman. Plaintiff told Dr. Saltzman what occurred and Dr.

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Saltzman read the kite. (Id.). Dr. Saltzman then flagged down Defendant

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Magallanes and despite Plaintiff’s protests that Defendant Magallanes was

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partially responsible for the kite, Dr. Saltzman gave the kite to Magallanes,

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who took and read the kite and did not return it to Dr. Saltzman. (Id. at 15-

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16). Plaintiff then had Dr. Saltzman sign a Form 22 as a receipt for the kite,

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anticipating that the kite would “go missing” as a cover-up for Defendants

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Magallanes and Hernandez’s activities. (Id. at 16).

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Both Canedo and Dr. Loebenstein attempted to have Dr. Saltzman

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indicate that Defendant Hernandez was named in the kite, however Dr.

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Saltzman refused, saying that he “did not read the kite extensively.” (Id. at

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16-17). Defendant Magallanes told Plaintiff on December 8, 2016, that he

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had thrown the kite away. (Id. at 18). Plaintiff then gave Defendant

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Magallanes a Form 22, requesting that Magallanes indicate in writing the

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name of the staff member named in the kite. Magallanes reported that he

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did not read the kite. (Id.).

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On December 13, 2016, Plaintiff questioned Officer Juarez about the

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kite as the officer was collecting food trays. (Id. at 19). Juarez, while taking

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Plaintiff’s neighbor’s tray but looking at Plaintiff, said “[Y]ou know there was

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this guy who [used] to live in in Cell #150. Very respectful, never bothered

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nobody. One day I came to work and went by his cell. We talked and I left,

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told him I’d see him later. Then I came to work the next day and found out

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he’d cut his throat, killed his-self.” (Id. at 19-20). Plaintiff responded that
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the officers had to be careful of who they gave razors to and Juarez responded

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“… I guess he found out one of his daughters had died.” Plaintiff interprets

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this interaction as a threat against his family. (Id. at 20).

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On December 18, 2016, Plaintiff was transferred to the Department of

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State Hospitals and then to the Psychiatric Services Unit at California State

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Prison Sacramento. (Id.). Inmate Harris, author of the kite, had also been

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transferred to Sacramento. (Id.). Harris, from a holding cell near Plaintiff’s

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cell, yelled out “I’d better not catch you. You know we’re gonna end up on the

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same yard, so when you see me you know what’s up.” (Id. at 21). Plaintiff

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does not indicate whether a physical altercation with Harris occurred.
III. LEGAL STANDARD
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency

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of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Under

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Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and

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plain statement of the claim showing that the pleader is entitled to relief.”

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Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (internal quotations omitted).

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The pleader must provide the Court with “more than an un-adored, ‘the-

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defendant-unlawfully-harmed-me’ accusation.) Id. at 678 (citing Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements will

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not suffice.” Id. “Although for the purposes of a motion to dismiss [a court]

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must take all of the factual allegations in the complaint as true, [a court is]

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not bound to accept as true a legal conclusion couched as a factual

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allegation.” Id. (internal quotations omitted).

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A pro se pleading is construed liberally on a defendant’s motion to

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dismiss for failure to state a claim. Thompson v. Davis, 295 F.3d 890, 895

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(9th Cir. 2002) (citing Ortez v. Washington Cnty., 88 F.3d 804, 807 (9th Cir.
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1996)). The pro se pleader must still set out facts in his complaint that bring

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his claims “across the line from conceivable to plausible.” Twombly, 550 U.S.

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at 570. A court “may not supply essential elements of the claim that were not

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initially pled.” Ivey v. Bd. Of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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A pro se litigant is entitled to notice of the deficiencies in the complaint

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and an opportunity to amend, unless the complaint’s deficiencies cannot be

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cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.

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1987).
IV. DISCUSSION

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A. Eleventh Amendment Immunity
Defendants are sued in both their individual and official capacities.

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(ECF No. 1 at 2). Defendants argue that they are entitled to Eleventh

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Amendment immunity as official-capacity claims for damages are barred.

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(ECF No. 15-1 at 5). As a result, Defendants request that all claims against

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them in their official capacities be dismissed. (Id.).

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The general rule is that “[s]tate officers in their official capacities, like

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States themselves, are not amenable to suit for damages under § 1983.”

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Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n.24 (1997). “Suits

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against state officials in their official capacity therefore should be treated as

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suits against the State.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing

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Kentucky v. Graham, 473 U.S. 159, 166 (1985)).

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Here, in response to Defendants’ Motion to Dismiss, Plaintiff withdrew

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the claims filed against Defendants in their official capacities. Accordingly,

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the Court RECOMMENDS that Defendant’s Motion to Dismiss all

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Defendants in their official capacity for a violation of section 1983 be

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GRANTED and all claims against Defendants in their official capacities be

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DISMISSED with prejudice.
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B. Failure-to-Protect Claim

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Defendants contend that Plaintiff’s failure to protect claim cannot

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survive because he failed to allege any physical injury as required by 42

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U.S.C. § 1997e(e). (ECF No. 15-1 at 6).

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The Prison Litigation Reform Act (“PLRA”) states, in part, that “[n]o

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Federal civil action may be brought by a prisoner confined in a jail, prison, or

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other correctional facility, for mental or emotional injury suffered while in

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custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e).

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This provision requires “a prior showing of physical injury that need not be

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significant but must be more than de minimus.” Oliver v. Keller, 289 F.3d

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623, 627 (9th Cir.2002). Here, as set forth in Plaintiff's Complaint and

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Opposition, the only injury that he claims with respect to the actions of

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Defendants is a psychological injury.

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Therefore, the Court RECOMMENDS that the Motion to Dismiss

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Plaintiff’s failure-to-protect claim be GRANTED and the failure-to-protect

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claim be DISMISSED without prejudice as to all defendants. Because of this

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recommendation, the Court will not discuss Defendants’ qualified immunity

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argument.

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V. CONCLUSION

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For the reasons set forth herein, it is RECOMMENDED that:

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1) Defendants Motion be GRANTED WITH PREJUDICE as to

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Plaintiff’s claims against Defendants in their official capacities.
2) Defendants’ Motion be GRANTED WITHOUT PREJUDICE as to

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Plaintiff’s failure-to-protect claim.

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As a result, Plaintiff’s only remaining claim is count one for First

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Amendment Retaliation against both Defendants.

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This Report and Recommendation will be submitted to the United
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States District Judge assigned to this case, pursuant to the provisions of 28

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U.S.C. § 636(b)(1). Any party may file written objections with the court and

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serve a copy on all parties by December 28, 2018. The document shall be

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captioned “Objections to Report and Recommendation.” Any reply to the

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objections shall be served and filed by January 4, 2019.

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The parties are advised that failure to file objections within the

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specified time may waive the right to raise those objections on appeal of the

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated: December 11, 2018

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