(PC) Hammler v. Hernandez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No. 1:19-cv-00616-SKO (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CLAIMS 13 v. (Doc. 21) 14 J. HERNANDEZ, 21-DAY DEADLINE 15 Defendant. Clerk of the Court to Assign a District Judge 16 17 Plaintiff Allen Hammler alleges the defendant violated his free exercise and due process 18 rights, subjected him to cruel and unusual punishment, and retaliated against him in violation of 19 the First, Eighth, and Fourteenth Amendments. (Doc. 21.) The Court finds that Plaintiff’s second 20 amended complaint states a cognizable free exercise claim, but the remaining claims are not 21 cognizable. Because Plaintiff has received two opportunities to amend (see Docs. 14, 18), and his 22 current complaint suffers from the same deficiencies as his prior complaint,1 the Court finds that 23 further amendment would be futile. See Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). 24 Therefore, the Court recommends that the claims in Plaintiff’s operative complaint be dismissed, 25 with the exception of the free exercise claim. 26 /// 27

1 1 I. SCREENING REQUIREMENT 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 4 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 5 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 6 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 7 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 8 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 9 II. PLEADING REQUIREMENTS 10 A. Federal Rule of Civil Procedure 8(a) 11 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 12 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain 13 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 14 Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 15 plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 16 quotation marks and citation omitted). 17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 18 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 19 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 20 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 21 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as 22 true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 23 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 24 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 25 liberal pleading standard … applies only to a plaintiff’s factual allegations,” not his legal theories. 26 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil 27 rights complaint may not supply essential elements of the claim that were not initially pled,” 1 marks and citation omitted), and courts “are not required to indulge unwarranted inferences.” Doe 2 I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 3 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient to 4 state a cognizable claim, and “facts that are merely consistent with a defendant’s liability” fall 5 short. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted). 6 B. Linkage and Causation 7 Section 1983 provides a cause of action for the violation of constitutional or other federal 8 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 9 section 1983, a plaintiff must show a causal connection or link between the actions of the 10 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 11 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 12 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 13 act, participates in another’s affirmative acts, or omits to perform an act which he is legally 14 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 15 F.2d 740, 743 (9th Cir. 1978) (citation omitted). 16 III. DISCUSSION 17 A. Plaintiff’s Factual Allegations2 18 On September 4, 2018, Plaintiff alerted Defendant-Psychiatric Technician J. Hernandez to 19 a “rash” or “[f]ungal infection” on his legs. (Doc. 21 at 2-3.) Plaintiff states that the rash had 20 “open sores, … some of which were actively [b]leeding and causing him great pain.” (Id. at 2.) 21 Defendant examined Plaintiff through his cell door, and Plaintiff asked Defendant to escort him to 22 the nurse’s station so that Defendant could clean his sores. (Id. at 3.) Defendant replied that he 23 could not. (Id.) Plaintiff, “becoming [f]rustrated with … Defendant’s excuses[,] told him that he 24 could clean the wounds himself” and asked Defendant for alcohol pads. (Id. at 4.) Defendant 25 replied that he would bring some pads to Plaintiff. (Id.) At noon, when Defendant had not 26 returned with the alcohol pads, Plaintiff called out to Defendant as he was passing by, who stated 27 that he had forgotten about the pads. (Id. at 4-5.) 1 Defendant then retrieved four alcohol pads a few minutes later and gave them to Plaintiff. 2 (Id. at 5.) The pads were “inside their individual packs but … [were] intentionally [punctured] by 3 Defendant, using some … unknown object of circular shape.” (Id.) Plaintiff explained to 4 Defendant that, due to his Rastafarian faith, he could not use the pads because they were 5 “tainted.” (Id. at 5-6). Plaintiff requested that Defendant bring him new pads and, if he must open 6 them, that he do so in front of Plaintiff so that Plaintiff could confirm that the pads were not 7 tainted. (Id. at 6.) Defendant told Plaintiff that he could not do this. (Id.) After a brief argument, 8 Defendant walked away. (Id.) 9 B. Plaintiff’s Claims for Relief 10 Plaintiff asserts the following causes of action: 11 • Claim One: “Violation of 1st Amend. Right, Free Speech” 12 • Claim Two: “Violation of 1st Amend. Right. Retaliation” 13 • Claim Three: “Violation of 8th Amend. Right, Cruel and Unusual Punishment” 14 • Claim Four: “Violation of 8th Amend. Right Deliberate Indifference” 15 • Claim Five: “Violation of 14th Amend. Right, Due Process. ‘Atypical’ Denial of 16 Medical Attention.” 17 (Doc. 21 at 9-10.) 18 Although Plaintiff characterizes Claim One as a free speech claim, given the allegations in 19 his complaint, the Court construes it as a free exercise of religion claim. (See id. at 2, 5-7, 9.) 20 Plaintiff’s claims of cruel and unusual punishment (Claim Three) and deliberate 21 indifference (Claim Four) are the same—i.e., deliberate indifference to serious medical needs is a 22 violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment. See Estelle v. 23 Gamble, 429 U.S. 97, 101-104 (1976). Given this, and based on Plaintiff’s factual allegations, the 24 Court construes Claims Three and Four as one cause of action for deliberate indifference to 25 serious medical needs under the Eighth Amendment. 26 Finally, the Court construes Claim Five as a substantive due process claim based on 27 alleged inadequate medical care. 1 1. First Amendment: Free Exercise of Religion 2 Prisoners “do not forfeit all constitutional protections by reason of their conviction and 3 confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545 (1979). Inmates “retain protections 4 afforded by the First Amendment, … including its directive that no law shall prohibit the free 5 exercise of religion.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). 6 However, “[l]awful incarceration brings about the necessary withdrawal or limitation of many 7 privileges and rights, a retraction justified by the considerations underlying our penal system.” Id. 8 (internal quotation marks and citation omitted). 9 A plaintiff asserting a free exercise claim must show that the defendant’s actions 10 substantially burden her practice of religion. See Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 11 2015). “A substantial burden … place[s] more than an inconvenience on religious exercise; it 12 must have a tendency to coerce individuals into acting contrary to their religious beliefs or exert 13 substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Id. (internal 14 quotation marks and citations omitted). “[A] prison policy that intentionally puts significant 15 pressure on inmates … to abandon their religious beliefs ... imposes a substantial burden on [the 16 inmate’s] religious practice.” Shakur v. Schriro, 514 F.3d 878, 889 (9th Cir. 2008) (internal 17 quotation marks and citation omitted). 18 Once a plaintiff establishes that state action substantially burdens her exercise of religion, 19 “the government bears the burden of establishing that the regulation serves a compelling 20 government interest and is the least restrictive means of achieving that interest.” Id. In the prison 21 context, the Supreme Court has held that alleged infringements of prisoners’ free exercise rights 22 are “judged under a ‘reasonableness’ test less restrictive than that ordinarily applied to alleged 23 infringements of fundamental constitutional rights.” O’Lone, 482 U.S. at 349 (citation omitted). 24 The challenged conduct “is valid if it is reasonably related to legitimate penological interests.” Id. 25 (internal quotation marks and citation omitted). “[T]he availability of alternative means of 26 practicing religion is a relevant consideration” for claims under the First Amendment. Holt v. 27 Hobbs, 135 S. Ct. 853, 862 (2015) (citations omitted). 1 Plaintiff’s allegations, leniently construed, state a cognizable free exercise claim. Plaintiff 2 states that the use of “tainted” alcohol pads violates his Rastafarian faith. (Doc. 21 at 5-6.) Given 3 that Plaintiff was in “great pain” due to his rash (id. at 2, 5), Defendant’s alleged refusal to 4 provide him “untainted” pads to treat his wounds tended to coerce Plaintiff to act contrary to his 5 religious beliefs, i.e., by using tainted pads in violation of those beliefs. Thus, Plaintiff adequately 6 alleges that Defendant placed a substantial burden on his exercise of religion. The Court notes 7 that, at the screening stage, it is unable to consider any potential governmental interests in 8 Defendant’s conduct or related prison regulations. 9 2. First Amendment: Retaliation 10 A claim of retaliation has five elements. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 11 2012). First, a plaintiff must allege that he engaged in protected activity. Id. For example, filing 12 an inmate grievance is protected, Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005), as is the 13 right to access the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977); see also Rizzo v. Dawson, 14 778 F.2d 527, 531-32 (9th Cir. 1985). Second, the plaintiff must show that the defendant took 15 adverse action against him. Watison, 668 F.3d at 1114 (citation omitted). “Third, the plaintiff 16 must allege a causal connection between the adverse action and the protected conduct.” Id. In 17 other words, the plaintiff must claim the defendant subjected him to an adverse action because of 18 his engagement in protected activity. Rhodes, 408 F.3d at 567. “Fourth, the plaintiff must allege 19 that the official’s acts would chill or silence a person of ordinary firmness from future [protected] 20 activities.” Watison, 668 F.3d at 1114 (internal quotation marks and citation omitted). “Fifth, the 21 plaintiff must allege ‘that the prison authorities’ retaliatory action did not advance legitimate 22 goals of the correctional institution.’” Id. (quoting Rizzo, 778 F.2d at 532). 23 Plaintiff does not state a cognizable retaliation claim. His allegations do not show that 24 Defendant denied him “untainted” alcohol pads because of his engagement in any protected 25 activity. Plaintiff alleges that Defendant’s actions “were taken in [r]etaliation for Plaintiff’s 26 seeking to exercise his [r]ight to [f]ree speech … and [r]eligion.” (Doc. 21 at 7.) However, this 27 claim is conclusory and lacks factual support. As explained in section II.A, supra, “[t]hreadbare 1 suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff provides no facts that show Defendant 2 acted in any way because of his attempt to exercise his religion. 3 3. Eighth Amendment: Deliberate Indifference to Serious Medical Needs 4 “Prison officials violate the Eighth Amendment if they are ‘deliberate[ly] indifferen[t] to 5 [a prisoner’s] serious medical needs.’” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) 6 (citing Estelle, 429 U.S. at 104). “This is true whether the indifference is manifested by prison 7 doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or 8 delaying access to medical care….” Estelle, 429 U.S. at 104-05. “A medical need is serious if 9 failure to treat it will result in significant injury or the unnecessary and wanton infliction of pain.” 10 Peralta, 744 F.3d at 1081 (internal quotation marks and citations omitted). “A prison official is 11 deliberately indifferent to that need if he ‘knows of and disregards an excessive risk to inmate 12 health.’” Id. at 1082 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 13 The test for deliberate indifference to medical needs is two-pronged and has objective and 14 subjective components. See Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). To establish 15 such a claim, a prisoner must first “show a serious medical need by demonstrating that failure to 16 treat [the] prisoner’s condition could result in further significant injury or the unnecessary and 17 wanton infliction of pain. Second, the plaintiff must show the defendants’ response to the need 18 was deliberately indifferent.” Id. (internal quotation marks and citation omitted). 19 As to the first, objective prong, “[i]ndications that a plaintiff has a serious medical need 20 include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and 21 worthy of comment or treatment; the presence of a medical condition that significantly affects an 22 individual's daily activities; or the existence of chronic and substantial pain.’” Colwell v. 23 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted). 24 As to the second, subjective prong, deliberate indifference “describes a state of mind more 25 blameworthy than negligence” and “requires more than ordinary lack of due care for the 26 prisoner’s interests or safety.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (internal quotation 27 marks and citation omitted). Deliberate indifference exists where a prison official “knows that 1 reasonable measures to abate it.” Id. at 847. In medical cases, this requires showing, “(a) a 2 purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm 3 caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citation omitted). “A prisoner need not 4 show his harm was substantial; however, such would provide additional support for the inmate’s 5 claim that the defendant was deliberately indifferent to his needs.” Jett v. Penner, 439 F.3d 1091, 6 1096 (9th Cir. 2006) (citation omitted). 7 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 8 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of facts from 9 which the inference could be drawn that a substantial risk of serious harm exists,’ but [he] ‘must 10 also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “If a [prison official] 11 should have been aware of the risk, but was not, then the [official] has not violated the Eighth 12 Amendment, no matter how severe the risk.’” Id. (internal quotation marks and citation omitted). 13 The Court finds that, for screening purposes, Plaintiff’s rash satisfies the first, objective 14 prong. Plaintiff alleges that the rash caused him significant pain, and his condition was one that a 15 reasonable patient would find worthy of treatment. 16 Plaintiff does not, however, satisfy the second, subjective prong or high legal standard of 17 deliberate indifference. In response to Plaintiff’s request, Defendant brought Plaintiff alcohol 18 pads to treat his rash. (Doc. 21 at 5.) This allegation does not show that Defendant failed to take 19 reasonable measures to abate a risk of serious harm. Plaintiff’s allegations also fail to show that 20 Defendant was subjectively aware of a substantial risk of serious harm to Plaintiff. 21 4. Fourteenth Amendment: Substantive Due Process 22 To determine whether the conditions of confinement of civil and pretrial detainees are 23 constitutionally adequate, courts look to the substantive due process component of the Fourteenth 24 Amendment. See Youngberg v. Romeo, 457 U.S. 307, 314-319 (1982); Jones v. Blanas, 393 F.3d 25 918, 931 (9th Cir. 2004). “[C]ivil detainees retain greater liberty protections than individuals 26 detained under criminal process, … and pre-adjudication detainees retain greater liberty 27 protections than convicted ones.” Jones, 393 F.3d at 932 (citations omitted). Under the Fourteenth 1 safety. See Estate of Conners by Meredith v. O’Connor, 846 F.2d 1205, 1208-09 (9th Cir. 1988). 2 “[T]he more protective fourteenth amendment standard applies to conditions of confinement 3 when detainees ... have not been convicted” of a crime.” Jones, 393 F.3d at 931 (internal 4 quotation marks and citation omitted). 5 Plaintiff is not a civil or pretrial detainee. He is serving a sentence for a criminal 6 conviction. (See Doc. 21 at 1.) Thus, the Fourteenth Amendment does not apply to his medical 7 care claim. As discussed in subsection 3, supra, his claim arises under the Eighth Amendment. 8 Plaintiff does not state a cognizable substantive due process claim under the Fourteenth 9 Amendment. 10 IV. CONCLUSION AND RECOMMENDATION 11 For the reasons set forth above, Plaintiff’s second amended complaint (Doc. 21) states a 12 cognizable free exercise claim under the First Amendment, but its remaining claims are not 13 cognizable. Given Plaintiff’s two opportunities to amend, the Court finds that further amendment 14 would be futile. See Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). Accordingly, the 15 Court RECOMMENDS that the claims in Plaintiff’s second amended complaint be 16 DISMISSED, except for the free exercise claim under the First Amendment. The Court 17 DIRECTS the Clerk of the Court to assign a district judge to this action. 18 These Findings and Recommendations will be submitted to the United States District 19 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days 20 of the date of service of these Findings and Recommendations, Plaintiff may file written 21 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 22 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 23 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 24 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 25 IT IS SO ORDERED. 26

Sheila K. Oberto 27 Dated: September 21, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 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