(PC) Hammler v. Hernandez

• Court: District Court, E.D. California
• Decided: March 15, 2022
• Docket: 1:19-cv-00616
• Status: Unknown

Opinion

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-DAD-SKO (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO DENY DEFENDANT’S MOTION TO DISMISS AND MOTION TO REVOKE IN 14 J. HERNANDEZ, FORMA PAUPERIS STATUS

15 Defendant. (Doc. 36)

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 action. 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 Pending before the Court is a Motion to Dismiss and Motion to Revoke In Forma Pauperis 21 Status Under 28 U.S.C. §1915(g) filed by Defendant J. Hernandez on July 14, 2021. 22 I. Relevant Procedural Background 23 Plaintiff filed this action on May 8, 2019. (Doc. 1.) On August 19, 2019, Plaintiff’s 24 application to proceed in forma pauperis was granted. (Doc. 13.) 25 Following screening of Plaintiff’s complaint, on January 7, 2020, the undersigned found 26 Plaintiff had stated a viable free exercise claim, but that his remaining claims were not 27 cognizable. Plaintiff was directed to either file a first amended complaint curing the deficiencies 28 identified, or alternatively, to notify the Court that he wished to proceed only on his free exercise 1 claim and to dismiss all remaining claims. (Doc. 14.) Plaintiff filed a first amended complaint on 2 February 24, 2020. (Doc. 17.) 3 On April 8, 2020, the undersigned again found that Plaintiff stated a viable free exercise 4 claim, but that his remaining claims were not cognizable. Plaintiff was directed to file a second 5 amended complaint curing the deficiencies identified, or alternatively, to notify the Court that he 6 wished to proceed as to his free exercise claim only. (Doc. 18.) Plaintiff filed a second amended 7 complaint on May 13, 2020. (Doc. 21.) 8 On September 21, 2020, the undersigned issued Findings and Recommendations to 9 dismiss the claims asserted in Plaintiff’s second amended complaint except the free exercise 10 claim under the First Amendment. (Doc. 23.) Plaintiff filed objections to the Findings and 11 Recommendations on October 7, 2020. (Doc. 24.) On March 12, 2021, District Judge Dale A. 12 Drozd issued an Order Adopting the Findings and Recommendations in full. (Doc. 25.) 13 Following service of process upon Defendant Jody Hernandez1 (J. Hernandez) (Doc. 35), 14 J. Hernandez filed a motion to dismiss the second amended complaint for a failure to state a claim 15 under 42 U.S.C. § 1983 pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 36.) 16 Defendant Hernandez also moved to revoke Plaintiff’s in forma pauperis status, asserting Plaintiff 17 is a three-strike inmate under 28 U.S.C. § 1915(g). (Id.) On July 29, 2021, Plaintiff filed an 18 opposition to Defendant’s motion. (Doc. 37.) Defendant filed a reply on August 5, 2021. (Doc. 19 38.) 20 A. Prior Screening Orders & Plaintiff’s Second Amended Complaint 21 On January 7, 2020, the undersigned issued a screening order as to Plaintiff’s original 22 complaint. (Doc. 14.) The undersigned found as follows: 23 Plaintiff’s allegations, leniently construed, state a cognizable free exercise claim. Plaintiff states that the use of “tainted” alcohol pads 24 violates his Rastafarian faith. (Doc. 1 at 5-6.) Given that Plaintiff was in “great pain” due to his rash, (id. at 2), Defendant’s refusal to 25 provide him “untainted” pads tended to coerce Plaintiff to act contrary to his religious beliefs, see Jones, 791 F.3d at 1031, i.e., to 26 use the tainted pads in violation of those beliefs. At the screening 27 1 Defendant’s motion notes Officer J. Hernandez was initially served in error. Jody Hernandez was later 28 identified as the correct party and served accordingly. (Doc. 38 at 1, n.1.) Plaintiff identified Hernandez as 1 stage, the Court does not consider any potential governmental interests in Defendant’s conduct or related prison regulations. 2 3 (Doc. 14 at 5.) Because several of Plaintiff’s other claims were found to be as deficient at screening, 4 Plaintiff was directed to file an amended complaint curing those deficiencies. (Id. at 8.) 5 Plaintiff filed a first amended complaint on February 24, 2020, again asserting a free 6 exercise claim. (Doc. 17.) Following screening of the first amended complaint, on April 8, 2020, 7 the undersigned held: 8 Plaintiff’s allegations, leniently construed, state a cognizable free exercise claim. Plaintiff states that the use of “tainted” alcohol pads 9 violates his Rastafarian faith. (Doc. 17 at 5-6.) Given that Plaintiff was in “great pain” due to his rash (id. at 2, 5), Defendant’s alleged 10 refusal to provide him “untainted” pads to treat his wounds tended to coerce Plaintiff to act contrary to his religious beliefs, i.e. by using 11 tainted pads in violation of those beliefs. Thus, Plaintiff’s allegations, if true, show that Defendant placed a substantial burden on Plaintiff’s 12 exercise of religion. See Jones, 791 F.3d at 1031. The Court notes that, at the screening stage, it is unable to consider any potential 13 government interests in Defendant’s conduct or related prison regulations. See O’Lone, 482 U.S. at 349. 14 15 (Doc. 18 at 6.) Plaintiff was again afforded an opportunity to cure the deficiencies identified in the 16 order. 17 In Plaintiff’s second amended complaint filed May 13, 2020, Plaintiff reasserted his free 18 exercise claim. (Doc. 21.) On September 21, 2020, the undersigned issued its Findings and 19 Recommendations, and recommended that the free exercise claim under the First Amendment 20 proceed as cognizable and that Plaintiff’s remaining claims be dismissed. (Doc. 23.) On March 21 12, 2021, District Judge Dale A. Drozd issued an Order adopting the findings and 22 recommendations in full and ordered that the action to proceed on Plaintiff’s second amended 23 complaint for an alleged violation of the Free Exercise Clause of the First Amendment, and that 24 the remaining claims be dismissed with prejudice. (Doc. 25.) 25 II. Defendant’s Motion to Dismiss the Second Amended Complaint 26 Defendant filed a motion on July 14, 2021, contending that Plaintiff’s second amended 27 complaint should be dismissed because: (1) Plaintiff was under a pre-filing vexatious litigant 28 order requiring him to request and receive written leave before filing a lawsuit alleging a civil 1 rights violation and that Plaintiff had failed to follow the order, and (2) Plaintiff’s complaint fails 2 to state a claim upon which relief can be granted. (Doc. 36 at 3-6.) Plaintiff filed an opposition to 3 Defendant’s motion contending he was not subject to a pre-filing order at the time he filed this 4 action, and that the Court’s prior screening of the second amended complaint in which his single 5 claim survived, should essentially serve to deny Defendant’s motion because Defendant “just 6 disagree[s] with the Magistrate’s finding ….” (Doc. 37 at 1-3.) Defendant filed a reply on August 7 5, 2021. (Doc. 38.) 8 A. Withdrawal of Argument by Defendant Concerning Pre-Filing Order 9 In Defendant’s reply to Plaintiff’s opposition to the motion to dismiss, Defendant 10 withdrew his motion to dismiss for a failure to comply with a pre-filing order. (Doc. 38 at 2:2.) 11 Defendant indicated the “motion inadvertently applied” an incorrect date as to the issuance of the 12 pre-filing order in Hammler v. Alvarez, No. 18-CV-326-AJB—a matter before the United States 13 District Court for the Southern District of California. Defendant acknowledged that Plaintiff’s 14 instant action was filed May 8, 2019, prior to the correct date of August 13, 2019, when the pre- 15 filing order took effect. (Doc. 38 at 2:3-7.) 2 Because Defendant withdrew his motion to dismiss 16 contending Plaintiff violated a pre-filing order, the undersigned need not address it. 17 B. Applicable Legal Standards 18 The issue before the Court is whether Plaintiff fails to state a claim upon which relief can 19 be granted. 20 “The First Amendment, applicable to state action by incorporation through the Fourteenth 21 Amendment, prohibits government from making a law prohibiting the free exercise [of religion]. 22 The Supreme Court has repeatedly held that prisoners retain the protections of the First 23 Amendment. A prisoner's right to freely exercise his religion, however, is limited by institutional 24 objectives and by the loss of freedom concomitant with incarceration.” Hartmann v. California 25 Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (alteration in original) (citations 26 and internal quotation marks omitted). “‘To ensure that courts afford appropriate deference to

27 2 In other words, Plaintiff did not fail to comply with a pre-filing order issued in August 2019 by 28 filing this action in May 2019. 1 prison officials,’ the Supreme Court has directed that alleged infringements of prisoners’ free 2 exercise rights be ‘judged under a ‘reasonableness’ test less restrictive than that ordinarily applied 3 to alleged infringements of fundamental constitutional rights.’” Jones v. Williams, 791 F.3d 1023, 4 1032 (9th Cir. 2015) (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)). “The 5 challenged conduct ‘is valid if it is reasonably related to legitimate penological interests.’” Id. 6 (quoting O'Lone, 482 U.S. at 349). 7 “To merit protection under the free exercise clause of the First Amendment, a religious 8 claim must satisfy two criteria. First, the claimant's proffered belief must be sincerely held; the 9 First Amendment does not extend to so-called religions which ... are obviously shams and 10 absurdities and whose members are patently devoid of religious sincerity. Second, the claim must 11 be rooted in religious belief, not in purely secular philosophical concerns.” Malik v. Brown, 16 12 F.3d 330, 333 (9th Cir. 1994) (alteration in original) (citations and internal quotation marks 13 omitted), supplemented, 65 F.3d 148 (9th Cir. 1995); see also Shakur v. Schriro, 514 F.3d 878, 14 884-85 (9th Cir. 2008) (noting the Supreme Court's disapproval of the “centrality” test and 15 finding that the “sincerity” test in Malik determines whether the Free Exercise Clause applies). 16 Additionally, “[a] person asserting a free exercise claim must show that the government 17 action in question substantially burdens the person's practice of her religion.” Jones, 791 F.3d at 18 1031. “A substantial burden ... place[s] more than an inconvenience on religious exercise; it must 19 have a tendency to coerce individuals into acting contrary to their religious beliefs or exert 20 substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Id. at 1031- 21 32 (alterations in original) (citation and internal quotation marks omitted) 22 Defendant contends that because Plaintiff’s complaint did not allege Hernandez 23 substantially burdened his practice of his religion, his claim fails and should be dismissed. 24 Specifically, Defendant contends that Plaintiff did not allege Hernandez’s refusal to provide him 25 “untainted” pads was contrary to his religious beliefs, or that he was required to use them in 26 violation of his beliefs. (Doc. 36 at 5; Doc. 38 at 3.) Defendant contends because Plaintiff’s 27 complaint “makes no mention of feeling coerced to act outside his faith and, from Hammler’s 28 recitation of events in his complaint, it is clear he felt comfortable rejecting and in fact did reject 1 the offered care consistent with his religious beliefs.” (Id.) Defendant further contends the alleged 2 violation “was a one-time isolated incident and therefore does not rise to the level of a 3 constitutional violation.” (Doc. 36 at 5-6; Doc. 38 at 3-4.) 4 At this stage of the proceedings, the Court is unpersuaded by Defendant’s argument. 5 Jones, 791 F.3d at 1031-32, and finds that the allegations in Plaintiff’s second amended 6 complaint, taken as true, sufficiently allege that Defendant’s refusal to provide Plaintiff with 7 “untainted”3 pads was contrary to his religious beliefs. (Doc. 21 at 5-6 [“It was at that time that 8 Plaintiff explained to him that he was a Religious Person of the Rastafarian Faith and further 9 explained to Defendant that to remain in accord with his Faith, Religious belief and strict 10 doctrines he was not able to use the [alcohol] pads for their having been tainted, i.e., puncture by 11 an unknown object”].) 12 The Court is also not persuaded by Defendant’s contention that Plaintiff’s complaint lacks 13 reference to coercion to act outside his faith. Plaintiff sought unopened alcohol pads, requesting 14 Defendant “bring them and open them in [Plaintiff’s] presence, using his hands and not an object 15 to defile them,” and alleges that Defendant refused to do so and walked away. (Doc. 21 at 6.) 16 Although Plaintiff refused to use the “tainted” alcohol pads, at this stage of the proceedings, taken 17 as true, Plaintiff’s allegations can be reasonably viewed as Defendant having exerted substantial 18 pressure on Plaintiff to modify his behavior – by leaving Plaintiff with only the option of using 19 “tainted” alcohol pads to treat a painful rash and open sores on both legs causing Plaintiff to fear 20 infection4 – in violation of Plaintiff’s beliefs. Jones, 791 F.3d at 1031-32. 21 Citing Canell v. Lightner, 143 F.3d 1210 (9th Cir. 1998), Defendant next contends that 22 even if Plaintiff’s allegation are taken to be true, “it was a one time isolated incident and therefore 23

24 3 Plaintiff explained the alcohol pads were “still inside their individual packs but each having been punctured by Defendant, using some, unknown object of circular shape.” (Doc. 21 at 5.) When Plaintiff 25 asked Defendant why the alcohol pads were provided in an opened state, Defendant refused to answer. (Id.) 26 4 Plaintiff was “suffering from a rash, and or fungal infection which was ravishing his legs, both, from 27 ankle to knees, having open sores, multiple, set in the rash and surrounded by it, some of which were actively bleeding and causing him great pain,” and Plaintiff was concerned “that the sores could become 28 infected and thereby become a means for the fungus or whatever it was to enter his bloodstream.” (Doc. 21 1 does not rise to the level of a constitutional violation.” (Doc. 36 at 5-6.) In Canell, the plaintiff 2 complained of defendant’s “mock-preaching and espousal of religious views” occurring over an 3 approximately two-month period, alleging interference with the plaintiff’s efforts to pray in 4 accordance with his Muslim faith. Canell, at 1211, 1214-1215. The Ninth Circuit held that 5 “[w]hile Lightner’s evangelizing may have constituted an intrusion upon Canell’s prayers on 6 some occasions during the brief period involved, we agree with the district court’s conclusion that 7 these intrusions were ‘relatively short-term and sporadic’ and did not constitute a substantial 8 interference.” Id. at 1215. The undersigned finds the short-term sporadic intrusions at issue in 9 Canell are factually distinguishable from the intrusion of which Plaintiff complains. Here, 10 Defendant’s act of providing “tainted” alcohol pads and refusing to provide “untainted” or 11 unopened alcohol pads, in a manner that inferentially extended Plaintiff’s physical pain and 12 suffering and may have served as a blanket prohibition of any availability of unopened alcohol 13 pads, could have plausibly interfered with Plaintiff’s free exercise of religion. 14 Whether Defendant Hernandez’s refusal to provide “untainted” alcohol pads amounts to a 15 substantial burden on the exercise of Plaintiff’s Rastafarian faith is a disputed issue of fact to be 16 resolved at a later stage. Defendant has not yet answered Plaintiff’s complaint and may articulate 17 a legitimate penological interest that would justify Defendant’s providing alcohol pads in an 18 opened or unsealed state. Shakur v. Schriro, 514 F.3d at 883-84. At this stage of the proceedings, 19 however, Plaintiff must only allege facts that, when accepted as true and the light most favorable 20 to him, state a claim for relief. Plaintiff has done so. The Court recommends that Defendant’s 21 motion to dismiss the second amended complaint be denied. 22 III. Defendant’s Motion to Revoke Plaintiff’s In Forma Pauperis Status 23 While Defendant originally moved to revoke Plaintiff’s in forma pauperis status pursuant 24 to 28 U.S.C. § 1915(g) (Doc. 36 at 6-9), in his reply, Defendant withdrew his motion to revoke 25 IFP status, acknowledging “[t]hree of the strikes relied on were after Hammler filed the instant 26 action.” (Doc. 38 at 3.) Defendant notes he will “reevaluate however whether a renewed motion 27 to revoke Hammler’s in forma pauperis status is appropriate given the Hammler v. Alvarez court’s 28 ruling that was issued only three months before the current action.” (Id.) Defendant concludes he 1 will refile a motion to revoke IFP status if appropriate. (Id.) 2 In light of Defendant’s withdrawal of the motion to revoke IFP status, the motion should 3 be denied as moot. 4 CONCLUSION AND RECOMMENDATION 5 Based on the foregoing, the Court RECOMMENDS: 6 1. Defendant’s motion to dismiss Plaintiff’s second amended complaint for a failure to 7 state a claim be DENIED; and 8 2. Defendant’s motion to revoke Plaintiff’s IFP status be DENIED as MOOT. 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days of 11 the date of service of these Findings and Recommendations, Defendant may file written 12 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 13 Findings and Recommendations.” Failure to file objections within the specified time may result in 14 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 15 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 IT IS SO ORDERED. 17

18 Dated: March 15, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 19

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