(PC) Hammler v. Godfry

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No. 1:25-cv-00728-KES-BAM (PC) 12 Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATIONS TO DISMISS 13 v. ACTION, WITHOUT PREJUDICE, FOR FAILURE TO OBEY COURT ORDER AND 14 GODFRY, et al., FAILURE TO PROSECUTE 15 Defendants. (ECF No. 6) 16 FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION 17 FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED 18 (ECF No. 7) 19 FOURTEEN (14) DAY DEADLINE 20 21 I. Background 22 Plaintiff Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se in this civil 23 rights action under 42 U.S.C. § 1983. 24 On June 18, 2025, the Court issued an order directing Plaintiff to submit a completed 25 application to proceed in forma pauperis or pay the $405.00 filing fee to proceed with this action. 26 (ECF No. 3.) Following Plaintiff’s failure to respond or otherwise comply with the Court’s order, 27 on August 4, 2025, the Court issued findings and recommendations to dismiss this action, without 28 prejudice, for failure to obey a court order and for Plaintiff’s failure to prosecute. (ECF No. 6.) 1 On August 11, 2025, Plaintiff filed motion to proceed in forma pauperis. (ECF No. 7.) 2 Based on that filing, the Court finds it appropriate to vacate the August 4, 2025 findings and 3 recommendations and address the motion to proceed in forma pauperis. 4 II. Plaintiff Has Accumulated Three “Strikes” Pursuant to 28 U.S.C. § 1915(g) 5 Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a 6 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 7 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 8 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 9 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 10 physical injury.”1 11 III. Plaintiff Fails to Satisfy the Imminent Danger Exception 12 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy 13

14 1 The Court takes judicial notice of the following United States District Court cases: (1) Hammler v. 15 Director of CDCR, Case No. 1:17-cv-00097-NJV (N.D. Cal.) (dismissed on April 27, 2017 for failure to file an amended complaint following a screening order dismissing complaint for failure to state a claim); 16 (2) Hammler v. Kernan, Case No. 3:18-cv-01170-DMS-NLS (S.D. Cal.) (dismissed on May 17, 2019 for failure to state a claim and as frivolous); (3) Hammler v. Hudson, Case No. 2:16-cv-01153-JAM-EFB 17 (E.D. Cal.) (dismissed on May 17, 2019 for failure to exhaust clear from the face of the complaint and attachments thereto); (4) Hammler v. Hough, Case No. 3:18-cv-01319-LAB-BLM (S.D. Cal.) (dismissed 18 on May 24, 2019 for failure to state a claim and as frivolous); (5) Hammler v. Director of CDCR, Case No. 2:17-cv-01949-MCE-DB (E.D. Cal.) (dismissed on March 25, 2020 as frivolous); (6) Hammler v. 19 Peterson, Case No. 2:19-cv-00524-MCE-CKD (E.D. Cal.) (dismissed on May 5, 2020 for failure to state a claim); (7) Hammler v. Baugham, Case No. 2:19-cv-00245-TLN-CKD (E.D. Cal.) (dismissed on June 4, 20 2020 for failure to state a claim); (8) Hammler v. Oliveira, Case No. 1:19-cv-00417-DAD-JLT (E.D. Cal.) (dismissed on June 4, 2020 for failure to state a claim); (9) Hammler v. State of Cal., Case No. 1:20-cv- 21 00630-DAD-GSA (E.D. Cal.) (dismissed on October 30, 2020 for failure to exhaust clear from the face of the complaint); and (10) Hammler v. Katz, Case No. 2:19-cv-00467-TLN-CKD (E.D. Cal.) (dismissed on 22 January 15, 2021 for failure to state a claim). See El-Shaddai v. Zamora, 833 F.3d 1036, 1044 (9th Cir. 23 2016) (complaint may be subject to dismissal for failure to state a claim where failure to exhaust is clear from the face of the complaint); Harris v. Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017) (“[W]hen we 24 review a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central question is whether the dismissal rang the PLRA bells of 25 frivolous, malicious, or failure to state a claim.”) (citing El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)) (internal quotations omitted). 26 The Court also takes judicial notice of the following United States Court of Appeals cases: 27 (1) Hammler v. Hough, Case No. 19-55732 (9th Cir.) (dismissed on January 9, 2020 as frivolous); and (2) Hammler v. Peterson, Case No. 20-16093 (9th Cir.) (dismissed on February 22, 2021 as frivolous). 28 1 the imminent danger exception to section 1915(g).2 2 A. Summary of the Complaint 3 In his complaint, Plaintiff names Defendants Godfry, Rodriguez, and Lopez, correctional 4 officers at Kern Valley State Prison (“KVSP”) (ECF No. 1 at 3.) Plaintiff alleges that he was 5 transferred to KVSP on April 12, 2024, “due to his having witnessed a murder and safety 6 concerns being engendered fore C/O(s) being called participants in the murder.” (Id. at 5.) 7 Plaintiff further alleges that on April 17, 2024, he was a mental patient at the CCCMS level of 8 care, and he was housed in the mental health unit at KVSP. Plaintiff’s complaint concerns events 9 that occurred at KVSP on April 17, 2024, involving Defendants Godfry, Rodriguez, and Lopez, 10 and events that occurred at KVSP on June 18, 2024, involving correctional officer Soto. Plaintiff 11 alleges that he was transferred out of KVSP on or about July 1, 2024, but is scheduled to be 12 returned to KVSP. (Id. at 2, 10-11.) At the time the complaint was filed, Plaintiff was housed at 13 California State Prison, Los Angeles County, in Lancaster, California, where he currently remains 14 housed. 15 Events of April 17, 2024 16 Plaintiff alleges that having been experiencing anxiety, he was on one-to-one observation, 17 where a correctional office is seated before an inmate’s cell door to maintain a constant watch 18 over the inmate to ensure that the inmate does not engage in self-harm. (ECF No. 1 at 5.) On 19 April 17, 2024, Defendant Rodriguez, a female correctional officer, was assigned to keep watch 20 over Plaintiff. (ECF No. 1 at 6.) At about 1:45 p.m., Defendant Godfry approached the cell, not 21 wearing the mandated name tag and with his body watch camera off in violation of CDCR 22 policies. Plaintiff was in bed resting and heard Defendant Godfry making what sounded like 23 sexual advances. Plaintiff got up and went to the cell door. Defendant Godfry, who Plaintiff 24 could not identify at that time, looked at Plaintiff and stated, “Are you suicidal?” Plaintiff asked 25 Defendant Godfry to turn on his body watch camera. Defendant Godfry ignored the request, and 26 Plaintiff asked, “Who are you?” (Id. at 6-7.) Defendant Godfry told Plaintiff, “I’m gonna be here 27

28 2 The Court expresses no opinion on the merits of Plaintiff’s claims. 1 on 3rd (3rd Watch) and the chest pains [expletive] aint happening.” (Id. at 7.) Plaintiff told him 2 something along the lines of “your trying to show off for her (Rodriguez) no-one give a 3 [expletive] about you.” (Id.) Defendant Godfry then told Plaintiff, “Are you gonna come out for 4 shower?” (Id.) Plaintiff responded, “Yeah.” (Id.) Defendant Godfry then yelled, “I’m gonna get 5 your ass,” and slammed his fist against the wall in a rage. (Id.) He then turned to walk off, but 6 turned back and told Defendant Rodriguez, “Come on!” (Id.) Defendant Rodriguez followed, 7 allegedly neglecting her duty to remain with Plaintiff until he had been evaluated by an on-call 8 psychologist. Plaintiff further alleges that Defendant Rodriguez, knowing that Defendant Godfry 9 was violating CDCR policies, intentionally stood with her body watch camera lens facing away 10 from Defendant Godfry and Plaintiff “in the pattern that [correctional officers] at KVSP act to 11 cover for coworkers when acts of overt violence are being committed.” (Id. at 7-8.) Once left 12 alone, Plaintiff made contact with Defendant Lopez as he was completing a mandated security 13 check. Plaintiff told Defendant Lopez what had occurred and that Defendant Rodriguez, in 14 leaving him alone, was violating policies. Defendant Lopez responded, “If they left you then why 15 should I stay.” (Id. at 8.) Plaintiff alleges that, being left alone, he “suffered severe anxiety, and 16 [extreme] fear believing that Godfry with others would return at any time/moment and kill him, 17 as [correctional officers] had tried on prior instance via fracturing his skull, three ribs and 18 bruising a left lung, then hiding him and his injuries for days seeking to cover it all up.” (Id. at 9.) 19 A short time later, Plaintiff stopped another correctional officer walking by and informed him of 20 the events. Another correctional officer was radioed for and medical summoned, “but for fear of 21 being attacked by Godfry and others Plaintiff refused to exit the cell where he knew Godfry and 22 others would join the escort and harm him under code of silence.” (Id.) 23 Events of June 18, 2025 24 Plaintiff alleges that correctional officer Soto, “who has sought to employ other [inmates] 25 to assault Plaintiff and had been reprimanded for it,” saw Plaintiff on a transport van going out to 26 Court and was recorded telling Plaintiff, “Oh yeah your the bitch I’ve been looking for.” (ECF 27 No. 1 at 10.) Another correctional officer standing behind Soto and hearing him told Soto, 28 “That’s the reason we have cameras now Dudes doing shit like that.” (Id.) Plaintiff claims that 1 “Soto and all others are still left there at KVSP to be a real danger to Plaintiff.” (Id.) 2 Plaintiff alleges that on or about July 1, 2024, he transferred out of KVSP to “remove[] 3 him from facility with Godfry and others whom were found to have retaliated against Plaintiff 4 and believed would not stop others from pursuing that retaliatory course.” (ECF No. 1 at 10-11.) 5 However, “now Plaintiff is scheduled to be sent back to KVSP, where Godfry and others remain 6 a[n] imminent threat, in ongoing manner.” (Id. at 11.) 7 B. Legal Standard 8 The availability of the imminent danger exception “turns on the conditions a prisoner 9 faced at the time the complaint was filed, not at some earlier or later time.” Andrews v. 10 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “Imminent danger of serious physical injury 11 must be a real, present threat, not merely speculative or hypothetical.” Blackman v. Mjening, 12 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To meet his burden under § 1915(g), Plaintiff 13 must provide “specific fact allegations of ongoing serious physical injury, or a pattern of 14 misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 15 319 F.3d 1048, 1050 (8th Cir. 2003). “[V]ague and utterly conclusory assertions” of imminent 16 danger are insufficient. White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). 17 Furthermore, “in order to qualify for the § 1915(g) imminent danger exception, a three- 18 strikes prisoner must allege imminent danger of serious physical injury that is both fairly 19 traceable to unlawful conduct alleged in his complaint and redressable by the court.” Ray v. Lara, 20 31 F.4th 692, 701 (9th Cir. 2022). 21 C. Discussion 22 Plaintiff’s complaint was filed on June 16, 2025, while he was housed at California State 23 Prison, Los Angeles County. (ECF No. 1 at 2.) As such, none of the allegations related to events 24 that occurred while Plaintiff was housed at KVSP, from approximately April 2024 through July 25 2024, are sufficient to meet the imminent danger exception at the time the complaint was filed. 26 Andrews 493 F.3d at 1053. At the time of filing, Plaintiff was no longer housed at the institution 27 where the alleged violations occurred. 28 To the extent Plaintiff alleges imminent danger because he “is scheduled to be returned to 1 KVSP,” this is insufficient to satisfy the imminent danger exception. Although Plaintiff claims 2 he is “scheduled to be sent back to KVSP, where Godfry and others remain a[n] imminent threat, 3 in ongoing manner” (ECF No. 1 at 11), he does not specify when any transfer is expected, nor 4 does he identify a date of transfer. Further, allegations regarding Defendant Godfry’s conduct (or 5 any other KVSP officer’s conduct) more than one year ago and its connection to any future harm 6 at KVSP are too speculative or conclusory to demonstrate an ongoing or imminent danger of 7 serious physical injury. While the Court takes Plaintiff’s well-pleaded factual allegations as true, 8 the Court is not required to accept Plaintiff’s conclusory statement that an unspecified future 9 transfer to KVSP places him in “imminent danger.” The Court finds that Plaintiff’s conclusory 10 allegation of possible future harm is insufficient to trigger the “imminent danger of serious 11 physical injury” exception to dismissal under § 1915(g). 12 Based on the above, the Court finds that Plaintiff has not alleged any imminent danger of 13 serious physical injury at the time of filing and has not satisfied the exception from the three 14 strikes bar under 28 U.S.C. § 1915(g). Plaintiff must pay the $405.00 filing fee if he wishes to 15 litigate this action. 16 III. Conclusion 17 Accordingly, the Findings and Recommendations issued on August 4, 2025 (ECF No. 6) 18 are HEREBY VACATED. 19 Further, it is HEREBY RECOMMENDED that: 20 1. The motion to proceed in forma pauperis, (ECF No.7), be DENIED, pursuant to 28 21 U.S.C. § 1915(g); and 22 2. Plaintiff be ORDERED to pay the $405.00 initial filing fee in full to proceed with this 23 action. 24 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 26 fourteen (14) days after being served with these Findings and Recommendations, the parties may 27 file written objections with the court. The document should be captioned “Objections to 28 Magistrate Judge’s Findings and Recommendations.” Objections, if any, shall not exceed 1 fifteen (15) pages or include exhibits. Exhibits may be referenced by document and page 2 number if already in the record before the Court. Any pages filed in excess of the 15-page 3 limit may not be considered. The parties are advised that failure to file objections within the 4 specified time may result in the waiver of the “right to challenge the magistrate’s factual 5 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter 6 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 IT IS SO ORDERED. 8

9 Dated: August 18, 2025 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10

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