(PC) Hammler v. Peterson ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, No. 2:19-cv-0524 MCE CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 PETERSON, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. On August 27, 2019, the court screened plaintiff’s complaint as the court is required to do 19 under 28 U.S.C. §1915A(a). The court dismissed plaintiff’s complaint with leave to amend. 20 Plaintiff has filed an amended complaint. 21 Again, the court is required to screen complaints brought by prisoners seeking relief 22 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 23 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 24 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 25 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 26 U.S.C. § 1915A(b)(1), (2). 27 In his amended complaint, plaintiff alleges he spoke to defendant, a correctional officer, 28 about another correctional officer who had been threatening plaintiff, seeking to avoid further 1 contact with the threatening officer. Defendant responded that he could not tell another 2 correctional officer what to do. A few hours later, the threatening officer tried to attack plaintiff, 3 but was stopped by either another correctional officer or an inmate. Plaintiff alleges defendant’s 4 failure to tell his supervisor about plaintiff’s concerns amounts to a violation of the Eighth 5 Amendment. However, plaintiff was not subjected to “cruel and unusual punishment” by 6 defendant under any reasonable definition of that phrase. Further, plaintiff fails to explain why it 7 was incumbent upon defendant to inform his supervisor about what plaintiff had told him and 8 why plaintiff could not have relayed that information to a supervisor himself. 9 Next, plaintiff takes issue with the fact that the defendant refused to sign a grievance 10 authored by plaintiff concerning the events described above. These facts do not amount to a 11 violation of federal law. To the extent plaintiff believes that this amounts to a violation of his 12 First Amendment right to petition to government for redress, plaintiff fails to indicate how any 13 action taken by the defendant stopped him from petitioning. 14 Finally, plaintiff asserts that the defendant threatened plaintiff with return to his cell 15 during a mental health treatment meeting in response to plaintiff threatening defendant with a 16 lawsuit over the refusal to sign plaintiff’s grievance. Plaintiff was not returned to his cell and 17 responded to defendant by threatening an additional action for retaliation. Based upon these 18 alleged facts, plaintiff suffered no injury. 19 In summary, none of the facts alleged by plaintiff support a federal lawsuit because any 20 injury suffered by plaintiff was de minimis. See Watison v. Carter, 668 F.3d 1108, 1114 (9th 21 Cir. 2012) (to support a claim a harm must be “more than minimal”). For these reasons, the court 22 will recommend that plaintiff’s amended complaint be dismissed for failure to state a claim upon 23 which relief can be granted. Having already granted plaintiff the opportunity to amend his 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 | pleadings in order to state a claim upon which relief could be granted, granting leave to amend a 2 | second time appears futile. 3 In accordance with the above, IT IS HEREBY RECOMMENDED that: 4 1. Plaintiffs amended complaint (ECF No. 15) be dismissed; and 5 2. This case be closed. 6 These findings and recommendations are submitted to the United States District Judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen after 8 | being served with these findings and recommendations, plaintiff may file written objections with 9 | the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 10 | Recommendations.” Plaintiff is advised that failure to file objections within the specified time 11 | waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 12 1991). ae id Sag Dated: April 3, 2020 CA rd fle oy CAROLYN K. DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 | 1 19 hamm0524.14 20 21 22 23 24 25 26 27 28