(PC) Hammler v. Katz ( 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-00467-CKD P 12 Plaintiff, 13 v. ORDER AND 14 D. KATZ, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. By order filed December 9, 2019, the undersigned 19 screened plaintiff’s complaint and dismissed it with leave to amend. ECF No. 10. Plaintiff has 20 filed a first amended complaint. ECF No. 19. 21 I. Screening Requirement 22 The court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 court will independently dismiss a complaint or portion thereof if the prisoner has raised claims 25 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 26 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 27 U.S.C. § 1915A(b)(1),(2). 28 ///// 1 II. Allegations in the First Amended Complaint 2 The allegations in the first amended complaint concern plaintiff’s treatment following his 3 report of suicidal ideation on or about July 30, 2018 while an inmate in the Psychiatric Services 4 Unit (“PSU”) at California State Prison-Sacramento. Plaintiff specifically contends that 5 defendant D. Katz gestured to the tower to cut off power to plaintiff’s cell “to inflame plaintiff 6 and[/]or engender a further mental lapse….” ECF No. 19 at 7. According to plaintiff, this was 7 done in retaliation for plaintiff’s report of feeling suicidal and was deliberately indifferent to 8 plaintiff’s right to safety. 9 Once defendant Halie Williams, staff psychologist, arrived to speak with plaintiff, she 10 refused to ask defendant Katz to leave so that plaintiff could speak with her privately about why 11 he felt suicidal. Defendant Williams cut off plaintiff’s responses to her questions “to try evoking 12 violent responses….” ECF No. 19 at 10. Plaintiff also alleges that defendant Williams failed to 13 sign a CDCR Form 22 that he gave her. This form was ultimately signed by a different staff 14 member. 15 Once defendant Williams left, plaintiff was informed by defendant Katz that he would 16 receive a Rules Violation Report (“RVR”) for failing to exit his cell. Plaintiff alleges that the 17 issuance of this RVR violated his right to due process, his First Amendment right to be free from 18 retaliation, as well as California state law. 19 Regarding the remaining four named supervisory defendants in this action, plaintiff 20 alleges that they knowingly hired and/or retained employees who violated his constitutional 21 rights. 22 III. Legal Standards 23 A. Retaliation 24 “Within the prison context, a viable claim of First Amendment retaliation entails five 25 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 26 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's 27 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 28 correctional goal. Rhodes v. Robinson, 408 F.3d 559 567-68 (9th Cir. 2005) (citations omitted). 1 Filing an inmate grievance is a protected action under the First Amendment. Bruce v. Ylst, 351 2 F.3d 1283, 1288 (9th Cir. 2003). A prison transfer may also constitute an adverse action. See 3 Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005) (recognizing an arbitrary confiscation and 4 destruction of property, initiation of a prison transfer, and assault as retaliation for filing inmate 5 grievances); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (finding that a retaliatory prison 6 transfer and double-cell status can constitute a cause of action for retaliation under the First 7 Amendment). 8 B. False Disciplinary Charges 9 A prisoner has no constitutionally-guaranteed immunity from being falsely or wrongly 10 accused of conduct that may lead to disciplinary sanctions. See Sprouse v. Babcock, 870 F.2d 11 450, 452 (8th Cir. 1989). As long as a prisoner is afforded procedural due process in the 12 disciplinary hearing, allegations of a fabricated charge generally fail to state a claim under section 13 1983. See Hanrahan v. Lane, 747 F.2d 1137, 1140– 41 (7th Cir. 1984). An exception exists 14 when the fabrication of charges infringed on the inmate's substantive constitutional rights, such as 15 when false charges are made in retaliation for an inmate's exercise of a constitutionally protected 16 right. See Sprouse, 870 F.2d at 452 (holding that filing of a false disciplinary charge in retaliation 17 for a grievance filed by an inmate is actionable under section 1983). 18 C. Verbal Abuse 19 “[V]erbal harassment or abuse . . . [alone] is insufficient to state a constitutional 20 deprivation under 42 U.S.C. 1983.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) 21 (citation and internal quotation omitted). Verbal harassment intended to humiliate or endanger 22 the inmate, however, may violate the Constitution. See Somers v. Thurman, 109 F.3d 614, 622 23 (9th Cir. 1997); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended by 135 F.3d 1318 24 (9th Cir. 1998). 25 D. Supervisory Liability 26 Government officials may not be held liable for the unconstitutional conduct of their 27 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) 28 (“In a § 1983 suit ... the term “supervisory liability” is a misnomer. Absent vicarious liability, 1 each Government official, his or her title notwithstanding is only liable for his or her own 2 misconduct.”). When the named defendant holds a supervisory position, the causal link between 3 the defendant and the claimed constitutional violation must be specifically alleged; that is, a 4 plaintiff must allege some facts indicating that the defendant either personally participated in or 5 directed the alleged deprivation of constitutional rights or knew of the violations and failed to act 6 to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 F.2d 7 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 8 E. Linkage Requirement 9 The civil rights statute requires that there be an actual connection or link between the 10 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 11 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 12 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 13 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 14 in another's affirmative acts or omits to perform an act which he is legally required to do that 15 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 16 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 17 link each named defendant with some affirmative act or omission that demonstrates a violation of 18 plaintiff's federal rights. 19 IV. Analysis 20 The court has reviewed plaintiff’s first amended complaint and finds that it fails to state a 21 claim upon which relief can be granted under federal law. In this court’s prior screening order, 22 plaintiff was advised of the legal standards governing claims of retaliation, due process violations, 23 and verbal abuse. ECF No. 10 at 4-5. The allegations in the amended complaint once again fail 24 to meet any of these standards for stating a claim for relief. Plaintiff fails to plead a retaliation 25 claim against defendant Katz because reporting suicidal ideation and refusing to exit a cell is not 26 protected conduct. See Rhodes, 408 F.3d at 567-68. Nor does defendant Katz’s issuance of an 27 allegedly false RVR establish a due process claim. The allegations of verbal abuse by defendant 28 Williams fail to state a claim for relief because plaintiff does not assert that he was humiliated or 1 endangered by her verbal taunts. See Somers, 109 F.3d at 622. In his amended complaint, 2 plaintiff has added four supervisory officials as defendants. However, these supervisors are not 3 liable for the acts of their subordinates absent their personal participation in the asserted 4 constitutional violations. See Fayle, 607 F.2d at 862; Taylor, 880 F.2d at 1045; Mosher, 589 F.2d 5 at 441. For all of these reasons, the undersigned recommends dismissing plaintiff’s first amended 6 complaint for failing to state a claim upon which relief may be granted. 7 V. Leave to Amend 8 If the court finds that a complaint or claim should be dismissed for failure to state a claim, 9 the court has discretion to dismiss with or without leave to amend. Leave to amend should be 10 granted if it appears possible that the defects in the complaint could be corrected, especially if a 11 plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v. 12 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to 13 amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that 14 the deficiencies of the complaint could not be cured by amendment.” (citation omitted). 15 However, if, after careful consideration, it is clear that a claim cannot be cured by amendment, 16 the Court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06. 17 In light of plaintiff’s failures to provide additional information about his claims despite 18 specific instructions from the court, the undersigned finds that further leave to amend would be 19 futile and the first amended complaint should be dismissed without leave to amend. Hartmann v. 20 CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when 21 amendment would be futile.”). Here, plaintiff has not even attempted to cure any of the 22 deficiencies described in this court’s prior screening order. He restated the same factual 23 allegations and named additional supervisory defendants who are not liable as a matter of law for 24 the actions of their subordinates. For this reason, the undersigned recommends denying further 25 leave to amend the complaint. 26 VI. Plain Language Summary for Pro Se Party 27 The following information is meant to explain this order in plain English and is not 28 intended as legal advice. 6MOADe VOT ENO INEM POO Vee □□□ VV 1 It is recommended that your complaint be dismissed because it fails to state any 2 | cognizable claim for relief. Allowing you to further amend the complaint would be futile because 3 | you were not able to fix any of the previously identified problems with the original complaint. As 4 | aresult, it is recommended that you not be granted further leave to amend your complaint and 5 | that this civil action be closed. If you disagree with this recommendation, you have 21 days to 6 | explain why it is not the correct result. Label your explanation as “Objections to the Magistrate 7 | Judge’s Findings and Recommendations.” 8 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of Court 9 | randomly assign this matter to a district court judge. 10 IT IS FURTHER RECOMMENDED that: 11 1. Plaintiffs first amended complaint (ECF No. 19) be dismissed without further leave to 12 amend for failing to state a claim upon which relief may be granted. 13 2. The Clerk of Court be directed to close this case. 14 These findings and recommendations are submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one days 16 | after being served with these findings and recommendations, any party may file written 17 | objections with the court and serve a copy on all parties. Such a document should be captioned 18 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 19 | objections shall be served and filed within fourteen days after service of the objections. The 20 | parties are advised that failure to file objections within the specified time may waive the right to 21 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 22 | Dated: September 25, 2020 Ci ide f | fe 28 CAROLYN K DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 | 12/namm0467.F&R.docx 27 28