(PC) Hammler v. Hernandez ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, No. 1:19-cv-00616-DAD-SKO (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 J. HERNANDEZ, (Doc. No. 23) 15 Defendant. 16 17 Plaintiff Allen Hammler is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On September 22, 2020, the assigned magistrate judge screened plaintiff’s second 21 amended complaint and issued findings and recommendations, recommending that this action 22 proceed only on the claim brought under the free exercise clause of the First Amendment; that all 23 other claims be dismissed; and that any further leave to amend be denied because plaintiff had 24 twice had the opportunity to do so, but had continued to fail to allege cognizable claims. (Doc. 25 No. 23 at 9.) Those findings and recommendations were served on plaintiff and contained notice 26 that any objections thereto were to be filed within thirty (30) days after service of the findings and 27 recommendations. (Id. at 6.) On October 7, 2020, plaintiff timely filed objections. (Doc. 28 No. 24.) 1 In his objections, petitioner argues that the he is entitled to pursue his claim for retaliation 2 in violation of the First Amendment because the assigned magistrate judge did not consider 3 caselaw holding that “allegations of a chronology of events from which retaliation can be inferred 4 is sufficient to survive dismissal.” (Doc. No. 24 at 2) (citing Watison v. Carter, 668 F.3d 1108, 5 1114 (9th Cir. 2012.) Plaintiff then attempts to describe the connection between defendant 6 offering plaintiff opened alcohol pads—which plaintiff characterized as tainted and indicates 7 would be in violation of his Rastafarian religion to use—to treat plaintiff’s rash as a retaliatory 8 response practice of his religion; but fails to persuasively do so. (Id. at 3.) As concluded by the 9 magistrate judge, petitioner’s claim for retaliation is not cognizable because plaintiff has not 10 alleged facts showing that defendant provided plaintiff opened alcohol pads because of any 11 attempt to practice his religion. (Doc. No. 23 at 7.) Plaintiff was told previously he must allege 12 facts showing more of a connection to allege a cognizable claim (Doc. No. 18 at 6–7), but has not 13 done so; and the court is simply unable to make a logical leap between the allegedly adverse 14 action and the protected conduct based on the limited facts plaintiff has alleged. 15 Plaintiff further states that because defendant was aware plaintiff was unable to use the 16 alcohol pads as they had been provided, defendant’s behavior constitutes deliberate indifference 17 under the Eighth Amendment. (Id. at 3–4.) This argument merely rehashes an assertion that was 18 included in plaintiff’s second amended complaint and was addressed thoroughly by the pending 19 findings and recommendations. (Doc. No. 23 at 7–8.) Finally, plaintiff objects that the pending 20 findings and recommendations did not address the substance of his claims brought under the 21 Fourteenth Amendment. (Doc. No. 18 at 5 (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). 22 However, the magistrate judge was not required to address the merits of plaintiff’s claim because, 23 as correctly outlined in the pending findings and recommendations, the Fourteenth Amendment 24 does not provide a basis for plaintiff to recover because he is neither a civil detainee nor a pre- 25 trial detainee; instead plaintiff’s medical care claim would arise under the Eighth Amendment. 26 (Doc. No. 21 at 8–9.) Petitioner’s objections therefore provide no basis upon which to reject the 27 pending findings and recommendations. 28 ///// 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C©), this court has conducted a 2 | de novo review of the case. Having carefully reviewed the entire file, including plaintiff's 3 | objections, the court concludes that the magistrate judge’s findings and recommendations are 4 | supported by the record and by proper analysis. 5 Accordingly, 6 1. The findings and recommendations issued September 22, 2020 (Doc. No. 23) are 7 adopted in full; 8 2. This action shall proceed only on plaintiff's second amended complaint, filed May 9 13, 2020 (Doc. No. 21), against defendant Hernandez for an alleged violation of 10 the Free Exercise Clause of the First Amendment; 11 3. All other claims are dismissed from this action for failure to state a claim with 12 prejudice because the granting of further leave to amend would be futile; and 13 4. This action is referred back to the magistrate judge for proceedings consistent with 14 this order. 15 | IT IS SO ORDERED. si □ '6 Dated: _ March 12, 2021 J al, Al i 7 a 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28