Hammler v. Hernandez et al

Filing 24

ORDER Adopting Report and Recommendation [Doc. No. 21 ] and Granting In Part Motion to Dismiss [Doc. No. 15 ]. Signed by Judge Cathy Ann Bencivengo on 1/9/2019. (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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ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 21]
AND GRANTING IN PART
MOTION TO DISMISS [Doc. No.
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J. HERNANDEZ, et al.,

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Defendant.

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Plaintiff Allen Hammler (“Plaintiff”), a state prisoner proceeding pro se and in

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forma pauperis, filed his complaint on February 2, 2018, pursuant to 42 U.S.C. §1983,

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claiming that two individuals retaliated against him in violation of the First Amendment

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and failed to protect him in violation of the Eighth Amendment. [Doc. No. 1 at 3-25.]

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

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claims against both defendants in their official capacities. [Doc. No. 15-1 at 5-7.] On

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August 27, 2018, Plaintiff filed an opposition to the motion to dismiss. [Doc. No. 18.]

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On September 10, 2018, Defendants filed a reply. [Doc. No. 19.]

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On December 11, 2018, Magistrate Judge Mitchell D. Dembin issued a Report and

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Recommendation (“Report”) to grant (in part) the motion to dismiss. [Doc. No. 21.] On

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December 20, 2018, Plaintiff filed objections to the Report. On January 2, 2019,

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Defendants filed a reply to Plaintiff’s objections. [Doc. No. 23.] Having reviewed the
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matter de novo and for the reasons that follow, the Report is ADOPTED and the motion

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to dismiss is GRANTED IN PART as set forth below.

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REVIEW OF REPORT AND RECOMMENDATION
The duties of the district court in connection with a report and recommendation of

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a magistrate judge are set forth in Federal Rules of Civil Procedure 72(b) and 28 U.S.C. §

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636(b). The district judge must “make a de novo determination of those portions of the

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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §

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636(b). The district court need not review de novo those portions of a report and

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recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992,

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1000 n. 13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003)

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(en banc).

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DISCUSSION

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A. Eleventh Amendment Immunity.

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Defendants are sued in both their individual and official capacities. [Doc. No. 1 at

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2.] In response to Defendants’ motion to dismiss, Plaintiff withdrew the claims filed

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against Defendants in their official capacities. [Doc. No. 18 at 2.] Accordingly, the

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Report with regard to this issue is ADOPTED, and the motion to dismiss all Defendants

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in their official capacities for violation of section 1983 is GRANTED WITHOUT

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LEAVE TO AMEND.

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B. Failure to Protect Claim.

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Magistrate Judge Dembin ruled that Plaintiff’s failure to protect claim cannot

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survive because he fails to allege any physical injury as required by 42 U.S.C. §1997e(e).

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[Doc. No. 21.] In his objections, Plaintiff argues that he did not intend to bring a failure-

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to-protect claim, and instead intended to allege “a ‘infliction of torture and terror’ claim

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under [a] theory of ‘cruel and unusual punishment.’” [Doc. No. 22 at 1.] However, this

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Court has already determined in the screening process under 28 U.S.C. §1915A that the

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only cognizable claims are retaliation and Eighth Amendment failure-to-protect claims.
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[Doc. No. 5 at 8.] And while the Court found the claims cognizable, they are subject to

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further analysis under a Rule 12(b)(6) motion. See Teahan v. Wilhelm, 481 F.Supp.2d

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1115, 1119 (S.D. Cal. 2007). As Magistrate Judge Dembin correctly noted, Plaintiff has

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failed to allege a physical injury and, therefore, fails to state an Eighth Amendment

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failure-to-protect claim. Accordingly, the Report with regard to this issue is ADOPTED,

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and the motion to dismiss the failure-to-protect claim is GRANTED WITH LEAVE TO

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AMEND.

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C. Qualified Immunity.

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Magistrate Judge Dembin did not reach the issue of qualified immunity. This

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Court also declines to reach the issue of qualified immunity at this time. Accordingly,

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the motion to dismiss on the basis of qualified immunity is DENIED WITHOUT

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PREJUDICE.

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CONCLUSION
For the reasons set forth above, the Court HEREBY ADOPTS the Report in its
entirety and FURTHER ORDERS:
1. Defendants’ motion to dismiss Plaintiff’s claims against Defendants in their
official capacities is GRANTED WITHOUT LEAVE TO AMEND;
2. Defendants’ motion to dismiss Plaintiff’s failure-to-protect claim is
GRANTED WITH LEAVE TO AMEND;
3. Defendants’ motion to dismiss on the basis of qualified immunity is DENIED
WITHOUT PREJUDICE;
4. Should Plaintiff choose to amend the failure-to-protect claim, then Plaintiff

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shall file a First Amended Complaint (FAC) no later than February 8, 2019.

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Plaintiff is cautioned that he must include all of his claims (including the

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retaliation claim which was not challenged in the motion to dismiss) in the

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FAC, so that there is one operative complaint. If Plaintiff files a FAC, the

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pleading must be complete in itself and may not incorporate by reference any

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prior pleading. Any defendant not named, and all claims not re-alleged, will be

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deemed waived.

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5. If Plaintiff does not wish to amend the failure-to protect claim, then Plaintiff

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shall file a Notice of Intent to Proceed with the original complaint (as modified

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by this Order) no later than February 8, 2019. Upon receipt of such notice, the

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defendants shall respond to the original complaint (as modified by this Order)

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within the time limits set forth in Rule 12(a)(1)(A)(i).

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IT IS SO ORDERED.
Dated: January 9, 2019

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