(PC) Hammler v. Burns ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ALLEN HAMMLER, Case No. 1:20-cv-00489-SAB (PC) 11 Plaintiff, ORDER DIRECTING CLERK OF COURT 12 TO RANDOMLY ASSIGN A DISTRICT v. JUDGE TO THIS ACTION 13 MR. J. BURNS, et al., FINDINGS AND RECOMMENDATIONS 14 RECOMMENDING THAT THE ACTION Defendants. BE DISMISSED FOR FAILURE TO PAY 15 THE FILING FEE 16 (ECF No. ) 17 18 Allen Hammler (“Plaintiff”), a state prisoner, is appearing pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 Plaintiff filed a complaint and a motion to file a new case in this action on April 6, 2020.1 21 Plaintiff did not pay the filing fee or submit an application to proceed in this action in forma 22 pauperis. 23 I. 24 DISCUSSION 25 On April 9, 2020, the Court ordered Plaintiff to show cause why he should not be 26 1 As stated in the Court’s April 9, 2020 order, Plaintiff’s motion stated that he is subject to a prefiling order. However, Plaintiff is subject to a prefiling order in the Southern District of California due to being found to be a 27 vexatious litigant. See Hammler v. Alvarez, No. 3:18-cv-00326-AJB-WVG (S.D. Cal. Aug. 13, 2019). Plaintiff does not include a copy of the order in his current filing. The Court does not find a prefiling order in the Eastern 1 required to pay the $400.00 filing in fee because he has suffered three or more strikes under 28 2 U.S.C. § 1915(g), and he failed to demonstrate that, at the time of filing the complaint, he was 3 under imminent danger of serious physical injury. (ECF No. 3.) Plaintiff filed a response on 4 April 27, 2020. (ECF No. 4.) 5 In his response, Plaintiff does not dispute that he has suffered three or more strikes under 6 28 U.S.C. §1915(g). Rather, Plaintiff argues that he is in imminent danger of serious physical 7 injury. Plaintiff submits that he is a mental health patient and housed in the Administrative 8 Segregation Unit (“ASU”) at California State Prison, Corcoran. Plaintiff contends that inmates 9 housed in the ASU for mental health issues are amenable to mental degradation and internal 10 physical dangers. Plaintiff contends his well-being depends on being able to attend his religious 11 services via television. However, Plaintiff has been threatened that his television will be taken 12 away. 13 As stated in the Court’s April 9, 2020 order, the complaint filed in this action alleges that 14 Plaintiff “is being deprived of his personal property, which includes his legal property and his 15 television that he needs to listen to evangelistic services. He has to listen to these services three 16 to four times a day “to keep the ‘Evil Dupi’ and ‘Bad Vides’ of the Environment from ‘vexing 17 his spirit,’ in other terms taunting his soul.” (Compl. 5, ECF 1.) He filed a grievance that was 18 addressed by the officer who deprived him of his property. Plaintiff received his television on 19 October 20, 2018 and was able to attend services but then he was issued a 90 day loss of his 20 property due to a rule violation. Plaintiff requested to see a psychologist to try to get his 21 television back and was told that he would be seen when the psychologist was done with his 22 current client. Plaintiff thought that correctional officer Burns would interfere with his ability to 23 see the psychologist so told staff to inform the psychologist that he was suicidal. Officer Burns 24 found out about it and went to talk to the psychologist. Plaintiff and Officer Burns ended up in a 25 shouting match and Plaintiff said that he was going to sue him. Officer Burns told him that was 26 his right and asked him if he needed a 602 to file an appeal. The psychologist came to see 27 Plaintiff and he explained what happened. Plaintiff brings multiple claims based on the denial of 1 ECF No. 3.) 2 As the Court previously determined, Plaintiff’s complaint contains no allegations 3 demonstrating that he is at imminent danger of serious physical injury. The incidents alleged in 4 the complaint occurred in 2018 through the beginning of 2019 and involved a deprivation of 5 property that Plaintiff contends violated his right to free exercise of religion. (Id. at 3.) 6 As an initial matter, the Court did not grant Plaintiff authorization to demonstrate 7 “imminent” danger as it already determined that, at the time he filed the complaint, he failed to 8 demonstrate such danger. Second, Plaintiff’s current contentions relating to his mental health 9 condition are not connected to the allegations in his complaint relating to the deprivation of his 10 television to practice his religion, particularly given that the allegations in the complaint relate to 11 incidents that occurred in 2018 and 2019.2 Indeed, in the complaint, Plaintiff seeks the following 12 as relief: Plaintiff seeks $70,000 dollars on each of the claim(s), separately, seeks $70,000 13 pun[i]tive on each of the claim(s) separately, and cost of suit/action being brought and 14 maintained - throughout litigation including closing costs and any administrative fees connected and preliminary and permanent injunction precluding punishment Plaintiff in 15 excess of statute, and precluding denial of right to attend religious services via television unless security risk exists. 16 (Compl. at 32, ECF No. 1.) 17 Thus, Plaintiff’s potential mental health problems do not show he “faced ‘imminent 18 danger of serious physical injury’ at the time of filing,” because Plaintiff presented different 19 claims and grounds for relief. See Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) 20 (emphasis added). Third, Plaintiff’s long-standing mental health problems do not show he “faced 21 22 2 “[T]he complaint of a three-strikes litigant must reveal a nexus between the imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the ‘imminent danger’ 23 exception of section 1915(g). In deciding whether such a nexus exists, we will consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges is 24 fairly traceable to unlawful conduct asserted in the complaint and (2) whether a favorable judicial outcome would redress that injury. The three-strikes litigant must meet both 25 requirements in order to proceed [in forma pauperis].” Stine v. Fed. Bureau of Prisons, No. 1:13- cv-1883 AWI MJS, 2015 WL 5255337, at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. 26 Morgenthau, 554 F.3d. 293, 298-99 (2d Cir. 2009)); see also Asemani v. Islamic Republic of 27 Iran, No. 18-cv-06382-CRB (PR), 2019 WL 366492, at *2 (N.D. Cal. Jan. 3, 2019) (same); Williams v. Allison, No. 3:19-cv-00087-BAS-BGS, 2019 WL 1077551, at *2 (S.D. Cal. Mar. 7, wOASS 1. OMUETO SEMEN SAND MVOC POI Oe AY TV 1 | ‘imminent danger of serious physical injury’ at the time of filing,” and Plaintiff's current claims 2 | are based on nothing more than speculation.* Accordingly, Plaintiff is not entitled to proceed in 3 | forma pauperis, and he should be ordered to pay the filing fee in full or suffer dismissal of the 4 | action. 5 II. 6 ORDER AND RECOMMENDATION 7 Based on the foregoing, it is HEREBY ORDERED that the Clerk of Court shall 8 | randomly assign a Fresno District Judge to this action. 9 Further, it is HEREBY RECOMMENDED that Plaintiff be required to pay the $400.00 10 | filing fee for this action as he is not entitled to proceed in forma pauperis. 11 This Findings and Recommendation will be submitted to the United States District Judge 12 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) 13 | days after being served with this Findings and Recommendation, Plaintiff may file written 14 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 15 | Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 16 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 17 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 | IT IS SO ORDERED. 20 ZL Dated: _ April 29, 2020 1 UNITED STATES MAGISTRATE JUDGE 22 | —__SEEE—————————— 3 The availability of the imminent danger exception turns on the conditions a prisoner faced at the time the 23 complaint was filed, not at some earlier or later time. See Andrews, 493 F.3d at 1053. “[A]ssertions of imminent 24 danger of less obviously injurious practices may be rejected as overly speculative or fanciful.” Id. at 1057 n. 11.. Imminent danger of serious physical injury must be a real, present threat, not merely speculative or hypothetical. To 25 | meet his burden under § 1915(g), an inmate must provide “specific fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 26 | 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). That is, the “imminent danger” exception is available “for 27 genuine emergencies,” where “time is pressing” and “a threat...is real and proximate.” Lewis v. Sullivan, 279 F.3d 28 526, 531 (7th Cir. 2002). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27