Hammler v. Imada

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 ALLEN HAMMLER, Case No.: 3:21-cv-0149-CAB-WVG

CDCR #F-73072,

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ORDER: 1) GRANTING PLAINTIFF’S

Plaintiff,

13 MOTION TO PROCEED IN FORMA

vs. PAUPERIS (ECF NO. 6),

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15 2) DISMISSING CERTAIN CLAIMS

C. IMADA, D. PARAMO, COVEL, PURSUANT TO 28 U.S.C. § 1915(e)(2)

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Defendants. AND § 1915A(b), AND

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3) DIRECTING U.S. MARSHAL TO

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EFFECT SERVICE OF COMPLAINT

19 UPON DEFENDANT IMADA

PURSUANT TO FED. R. CIV. P. 4(c)(3)

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AND 28 U.S.C. § 1915(d)

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22 On January 27, 2021, Plaintiff Allen Hammler (“Hammler” or “Plaintiff”),

23 currently incarcerated at California State Prison, Corcoran and proceeding pro se, filed a

24 civil rights Complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1 at 1.) On

25 January 28, 2021, the Court dismissed the case without prejudice for failure to pay the

26 filing fee required by 28 U.S.C. § 1914(a) and/or failing to move to proceed in forma

27 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) The Court gave Plaintiff

28 forty-five days to either pay the filing fee or move to proceed IFP. (See id. at 2.) After

1 receiving an extension of time (ECF No. 4), Plaintiff filed a Motion for Leave to Proceed

2 IFP on May 27, 2021. (ECF No. 6.)

3 I. Motion to Proceed IFP

4 All parties instituting any civil action, suit or proceeding in a district court of the

5 United States, except an application for writ of habeas corpus, must pay a filing fee of

6 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

8 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

9 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed

10 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v.

11 Samuels, 577 U.S. 82, 84–85 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir.

12 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C.

13 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

14 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

15 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the

16 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

17 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

18 trust account statement, the Court assesses an initial payment of 20% of (a) the average

19 monthly deposits in the account for the past six months, or (b) the average monthly

20 balance in the account for the past six months, whichever is greater, unless the prisoner

21 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

22 custody of the prisoner then collects subsequent payments, assessed at 20% of the

23 preceding month’s income, in any month in which his account exceeds $10, and forwards

24 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of

27 $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee

Schedule, § 14 (eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to

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1 In support of his IFP Motion, Hammler has submitted a copy of his California

2 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report as

3 well as a Prison Certificate completed by an accounting officer at RJD. See ECF No. 2 at

4 1‒3; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These

5 statements show Hammler maintained an average monthly balance of $513.72 and had

6 $333.33 in average monthly deposits credited to his account over the 6-month period

7 immediately preceding the filing of his Complaint. His available balance as of May 18,

8 2021, was $430.45. (See ECF No. 6 at 4.) Therefore, the Court GRANTS the motion and

9 assesses an initial partial filing fee of $102.74, pursuant to 28 U.S.C. § 1915(b)(1). The

10 remaining balance of the $350 total fee owed in this case must be collected by the agency

11 having custody of the prisoner and forwarded to the Clerk of the Court pursuant to 28

12 U.S.C. § 1915(b)(2).

13 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)

14 A. Legal Standard

15 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

16 answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

17 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

18 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

19 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

20 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

21 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

22 the targets of frivolous or malicious suits need not bear the expense of responding.’”

23 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).

24 “The standard for determining whether a plaintiff has failed to state a claim upon

25 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

26 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

27 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

28 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

1 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

2 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

3 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

4 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. In

5 deciding whether to dismiss the complaint for failing to state a claim, the court is

6 generally bound by the facts and allegations contained within the four corners of the

7 complaint. Hydrick v. Hunter, 500 F.3d 978, 985 (9th Cir. 2007). But, if the plaintiff has

8 supplemented the complaint by attaching documents, the court may consider these

9 documents as part of the complaint when determining whether the plaintiff can prove the

10 allegations asserted in the complaint. During v. First Boston Corp., 815 F.2d 1265, 1267

11 (9th Cir. 1987).

12 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

13 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

14 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

15 relief [is] . . . a context-specific task that requires the reviewing court to draw on its

16 judicial experience and common sense.” Id. The “mere possibility of misconduct” or

17 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

18 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

19 (9th Cir. 2009).

20 Finally, while a plaintiff’s factual allegations are taken as true, courts “are not

21 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d

22 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Indeed, while

23 courts “have an obligation where the petitioner is pro se, particularly in civil rights cases,

24 to construe the pleadings liberally and to afford the petitioner the benefit of any doubt,”

25 Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773

26 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements of claims that

27 were not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d

28 266, 268 (9th Cir. 1982). Even before Iqbal, “[v]ague and conclusory allegations of

1 official participation in civil rights violations” were not “sufficient to withstand a motion

2 to dismiss.” Id.

3 B. Plaintiff’s Allegations

4 Hammler contends that on or about November 28, 2016, his family members

5 “made contact” with Imada, a correctional officer at RJD, and “informed him that

6 Plaintiff’s mother was in hospice on her death bed and requesting to speak with Plaintiff

7 in anticipation of her passing.” (ECF No. 1 at 3.) Imada told Plaintiff’s family members

8 that he would need to “speak with his supervisor.” (Id.)

9 Plaintiff alleges that Imada deliberately failed to inform him of the call from his

10 family or to take any steps to arrange for Plaintiff to receive the message. (Id. at 3–4.)

11 Hammler contends Imada intentionally failed to tell him about the call “because Imada

12 knew that Plaintiff had recently filed [internal grievances]” against him and other RJD

13 correctional officers on October 20, 2016 and November 7, 2016. (Id. at 4.) On

14 November 28, 2016, the day Hammer’s family called and spoke to Imada, Hammler had

15 been interviewed regarding one of the incidents. (Id. at 7–8.)

16 Plaintiff’s mother passed away on December 3, 2016. (Id. at 5.) Plaintiff did not

17 learn about his mother’s death until January 6, 2017, when he was collected from his cell

18 and taken an office and told there was an “emergency and he was to call his family.” (Id.

19 at 5.) When he spoke to his family on January 6, 2017, they told him they had attempted

20 to contact him on November 28, 2016. Plaintiff then learned that Imada had failed to

21 inform Plaintiff of the call, as required by state regulations. (Id. at 6.)

22 C. 42 U.S.C. § 1983

23 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and

24 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d

25 1063, 1067 (9th Cir. 2006). To state a claim under section 1983, Hammler must allege

26 two essential elements: (1) that a right secured by the Constitution or laws of the United

27 States was violated and (2) that the alleged violation was committed by a person acting

28 under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frey,

1 789 F.3d 1030, 1035‒36 (9th Cir. 2015).

2 D. Discussion

3 1. Defendants Covel and Paramo

4 Plaintiff has sued Defendants Paramo and Covel, the RJD Warden and Associate

5 Warden of RJD, respectively. He alleges that “prior to November 28, 2016, [they] were

6 informed by Plaintiff of the unconstitutional treatment their agents were subjecting

7 Plaintiff to and were so informed in detail . . .and via CDCR 602 Appeals but

8 [nevertheless] allowed Imada and others to go unchecked” by perpetuating a “code of

9 silence.” (ECF No. 1 at 8.)

10 It appears that Plaintiff has named Paramo and Covel on the grounds that they are

11 responsible for operating the prison and should therefore be held liable for the alleged

12 retaliatory actions of their subordinates. There is no respondeat superior liability under 42

13 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437–38 (9th Cir. 1993). “Because

14 vicarious liability is inapplicable to . . . § 1983 suits, [Plaintiff] must plead that each

15 government-official defendant, through the official’s own individual actions, has violated

16 the Constitution.” Iqbal, 556 at 676; see also Jones v. Cmty. Redev. Agency of City of Los

17 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (stating that in order to state a claim, even pro

18 se plaintiffs must “allege with at least some degree of particularity overt acts which

19 defendants engaged in”).

20 Moreover, supervisory officials may only be held liable under § 1983 if Plaintiff

21 alleges their “personal involvement in the constitutional deprivation, or . . . a sufficient

22 causal connection between the supervisor’s wrongful conduct and the constitutional

23 violation.” Keates v. Koile, 883 F.3d 1228, 1242–43 (9th Cir. 2018); Starr v. Baca, 652

24 F.3d 1202, 1207 (9th Cir. 2011). Plaintiff’s Complaint offers no factual detail from which

25 the Court might reasonably infer a plausible constitutional claim as to Warden Paramo

26 and/or Associate Warden Covel because he does not allege that either Defendant

27 personally committed any of the acts he alleges. He merely contends they failed to

28 adequately supervise Imada and other staff and failed to ensure Imada complied with

1 California Code of Regulations § 3282(g) after Plaintiff’s family tried to reach him

2 about his mother’s failing health. Plaintiff, however, does not assert that Paramo or Covel

3 had any knowledge of the call from Plaintiff’s family or Imada’s failure to inform him of

4 it. Nor does he allege that either Defendant “through [their] own individual actions. . .

5 violated the Constitution.” Iqbal, 556 at 676; Jones, 733 F.2d at 649.

6 For these reasons, the Court dismisses Defendants Paramo and Covel as parties to

7 this action sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii) and 28 U.S.C.

8 § 1915A(b)(1), (2); Lopez, 203 F.3d at 1126–27; Wilhelm, 680 F.3d at 1121.

9 2. Defendant Imada

10 Plaintiff alleges Imada deliberately failed to inform him or other appropriate staff

11 about the November 28, 2016 phone call from Plaintiff’s family regarding his mother’s

12 failing health, as required under California Code of Regulations § 3282(g). (ECF No. 1 at

13 3–4.) He contends this was in retaliation for his recent filing of 602 grievances against

14 Imada and other RJD correctional officers. (Id.) The Court finds Hammler’s Complaint

15 contains plausible First Amendment claim against Imada, sufficient to survive the “low

16 threshold” set to withstand the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2)

17 and 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Rhodes v.

18 Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (holding that to state a valid First

19 Amendment retaliation claim, Plaintiff must assert: (1) a state actor took some adverse

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2 California Code of Regulations section 3282(g) states:

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If staff designated by the institution head determine that an incoming call concerns an

23 emergency or confidential matter, the caller’s name and telephone number shall be

obtained and the inmate promptly notified of the situation. The inmate shall be permitted

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to place an emergency or confidential call either collect or by providing for the toll to be

25 deducted from the inmate's trust account. A confidential call shall not be made on an

inmate telephone and shall not be monitored or recorded. If a call is determined to be an

26 attorney and inmate confidential phone call, in order for the inmate to place or receive the

call it must have already received approval or clearance in accordance with subsections

27 (g)(1), (g)(2) and (g)(4).

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1 action against him, (2) the adverse action was taken because he engaged in some

2 protected conduct, (3) the state actor’s acts “would chill or silence a person of ordinary

3 firmness from future First Amendment activities,” and (4) the adverse action “did not

4 reasonably advance a legitimate correctional goal”); Schroeder v. McDonald, 55 F.3d

5 454, 461 (9th Cir. 1995) (holding prisoners may not be retaliated against for exercising

6 their right of access to the courts); Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995)

7 (“The right of meaningful access to the courts extends to established prison grievance

8 procedures.”), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230 n.2

9 (2001); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (“Prisoners have a First

10 Amendment right to telephone access, subject to reasonable security limitations.”)

11 Therefore, the Court will order the U.S. Marshal to effect service upon Defendant

12 C. Imada on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall

13 issue and serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P.

14 4(c)(3) (“[T]he court may order that service be made by a United States marshal or

15 deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28

16 U.S.C. § 1915.”).

17 III. Conclusion and Order

18 For the reasons explained above, the Court:

19 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

20 (ECF No. 6).

21 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from

22 Plaintiff’s trust account the $102.74 initial filing fee assessed, if those funds are available

23 at the time this Order is executed, and forward whatever balance remains of the full $350

24 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding

25 month’s income to the Clerk of Court each time the amount in Plaintiff’s account exceeds

26 $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY

27 IDNETIFIED BY THE NAME AND NUMBER ASSIGNED TO HIS ACTION.

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1 3. DIRECTS the Clerk of Court to serve a copy of this Order by mail on

2 Kathleen Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-

3 0001, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.

4 4. DISMISSES Defendants Paramo and Covel as parties to this matter due to

5 Plaintiff’s failure to state a claim against them pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)

6 and 28 U.S.C. § 1915A(b)(1).

7 5. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF

8 No. 1) upon Defendant C. Imada, and forward it to Plaintiff along with a blank U.S.

9 Marshal Form 285 for this Defendant. In addition, the Clerk will provide Plaintiff with a

10 certified copy of this Order, a certified copy of his Complaint (ECF No. 1), and the

11 summons so that he may serve Imada. Upon receipt of this “IFP Package,” Plaintiff must

12 complete the USM Form 285 as completely and accurately as possible, include an

13 address where Imada may be found and/or subject to service pursuant to S.D. Cal. CivLR

14 4.1c., and return it to the United States Marshal according to the instructions the Clerk

15 provides in the letter accompanying his IFP package.

16 6. ORDERS the U.S. Marshal to serve a copy of the Complaint (ECF No. 1)

17 and summons upon C. Imada as directed by Plaintiff on the USM Form 285 provided to

18 him. All costs of that service will be advanced by the United States. See 28 U.S.C.

19 § 1915(d); Fed. R. Civ. P. 4(c)(3).

20 7. ORDERS Defendant Imada, once he has been served, to reply to Plaintiff’s

21 Complaint within the time provided by the applicable provisions of Federal Rule of Civil

22 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be

23 permitted to “waive the right to reply to any action brought by a prisoner confined in any

24 jail, prison, or other correctional facility under section 1983,” once the Court has

25 conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b),

26 and thus, has made a preliminary determination based on the face on the pleading alone

27 that Plaintiff has a “reasonable opportunity to prevail on the merits,” defendant is

28 required to respond).

1 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

2 ||serve upon Defendant Imada, or if appearance has been entered by counsel, upon

3 || Defendant’s counsel, a copy of every further pleading, motion, or other document

4 ||submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must

5 ||include with every original document he seeks to file with the Clerk of the Court, a

6 || certificate stating the manner in which a true and correct copy of that document was

7 ||served on Defendant or his counsel, and the date of that service. See S.D. Cal. CivLR 5.2.

8 || Any document received by the Court which has not been properly filed with the Clerk or

9 || which fails to include a Certificate of Service upon the Defendant, or his counsel, may be

10 || disregarded.

1] IT IS SO ORDERED.

12 Dated: August 11, 2021 € Z

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Hon. Cathy Ann Bencivengo

14 United States District Judge

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