Hammler v. Davis

Decision Date27 January 2016
Docket NumberNo. 2:14-cv-2073 MCE AC P,2:14-cv-2073 MCE AC P
PartiesALLEN HAMMLER, Plaintiff, v. C. DAVIS, et al., Defendants.
CourtU.S. District Court — Eastern District of California
ORDER and FINDINGS AND RECOMMENDATIONS
I. Introduction

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff's First Amended Complaint (FAC), against sole defendant C. Davis, a librarian at High Desert State Prison (HDSP), on claims that defendant, acting in retaliation, was deliberately indifferent to plaintiff's safety. ECF No. 14. This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c).

Currently pending is defendant's motion (ECF No. 33) to dismiss this action on the ground that plaintiff's claims are barred by application of res judicata. Defendant seeks, alternatively, the dismissal of plaintiff's claims for injunctive relief on the ground that they were mooted by his transfer from HDSP. Plaintiff filed an opposition to defendant's motion, ECF No. 39; defendant filed a reply, ECF No. 40. Also pending is plaintiff's motion for appointment of counsel. ECF No. 42.

For the reasons set forth herein, the court recommends that defendant's motion to dismiss this action on res judicata grounds be denied, but that plaintiff's claims for injunctive relief be dismissed as moot; in addition, the court denies without prejudice plaintiff's motion for appointment of counsel.

II. Background

Plaintiff filed his initial complaint in this action on August 29, 2014,1 ECF No. 1, and the court dismissed the complaint with leave to amend. ECF No. 9. Plaintiff filed his FAC on January 17, 2015. ECF No. 14. Pursuant to screening the FAC under 28 U.S.C. §1915A, this court recounted plaintiff's allegations as follows, ECF No. 17 at 3 (internal citations omitted):

Plaintiff's FAC refines the allegations of his original complaint as follows. Plaintiff names only one defendant, HDSP Librarian C. Davis, whom plaintiff alleges has taken the following action against plaintiff because he assists other inmates with their litigation: threatened to take away plaintiff's Preferred Legal User (PLU) status; denied plaintiff access to the library; obtained the cooperation of other prison officials to prevent plaintiff from accessing the library; and persuaded other inmates/gang members to warn plaintiff that he "need[s] to lay back off the lady [Davis] in the law library." The FAC alleges that other inmates approached plaintiff with this message on at least two occasions, . . . the former resulting in physical injury to plaintiff ["herein plaintiff suffered a bloodied nose and was, during the altercation defendant instigated, shot with a 40mm gun projectile of which tore flesh from his left leg"]. Plaintiff alleges that on the latter date a "physical fight . . . was only avoided because plaintiff agreed to do as the two [inmates] were requesting . . . ." Plaintiff avers that the alleged physical altercation also resulted in a disciplinary charge against him, and a housing move. Plaintiff does not identify the relief he seeks, other than to state that "[p]laintiff reserves the right to seek punitive damages." However, it is implied that plaintiff also seeks compensatory damages, access to HDSP's law library, and freedom from intimidation and physical injury by other inmates.

The court found that the FAC states claims for retaliation and deliberate indifference/failure to protect against defendant Davis based on her alleged enlisting of other inmates tointimidate and/or harm plaintiff in response to his efforts to access the HDSP law library and provide legal assistance to other inmates. ECF No. 17 at 3. The court found that the FAC does not state a claim for denial of access to the courts because it does not allege that plaintiff suffered any actual legal injury. See id. at 3-7. Therefore, plaintiff's allegations that defendant Davis threatened to take away his PLU status, denied him access to the library, or obtained the cooperation of other prison officials to limit his access to the library, do not state a claim for relief.2 It is only defendant's alleged enlisting of other inmates to intimidate and/or injure plaintiff that supports plaintiff's claims for retaliation and failure to protect.

Defendant now informs the court that, the day before plaintiff commenced the instant action, he filed a related case against defendant Davis in the Lassen County Superior Court (Case No. JC58661). Defendant has provided a copy of plaintiff's complaint in his state court action, filed by plaintiff on August 28, 2014, see n.1, supra, although file-stamped by that court on October 1, 2014. See ECF No. 33-2 at 5-11 (Df. Ex. A); see also ECF No. 39-1 at 12-8 (Pl. Ex. A). Defendant has also provided a copy of the state court's January 23, 2015 order sustaining defendant Davis' demurrer without leave to amend.3 See ECF No. 33-2 at 13-4 (Df. Ex B). Inaddition, plaintiff has provided a portion of defendant's motion in support of her demurrer in plaintiff's state court action. See ECF No. 39-1 at 20-1 (Pl. Ex. B). The court takes judicial notice of these documents.4

The form portion of plaintiff's state court complaint indicates that it was a limited civil action for damages (seeking between $10,000 and $25,000) for personal injury based on an intentional tort theory. See ECF No. 33-2 at 5-7. The body of the complaint sought "compensatory, emotional and punitive damages" based on defendant's alleged promulgation of "untrue defamatory statements going directly to Plaintiff's character and standing as a reputable Activist and Lobbyist for Prisoner' Rights and Reform." Id. at 8. Plaintiff alleged that on April 4, 2010, defendant "attacked Plaintiff's character" when she made the following statements to him while in the library and in the presence of other inmates, id. at 9-10:

[She] told me that she believed I was using the Library to "Drum up Business," because she'd heard about me charging large amounts of money to aid other Inmates/Prisoners. I became embarrassed, and taking offense told her she was making "slanderous" allegations. "Shut up and sit down" I was told by Davis "before I take your PLU." I did as I was told not wanting to risk such loss. After the library session was over other prisoners questioned me as to why Davis would say such thing[s] or "why does she have it in for you."

In sustaining defendant's demurrer, the superior court ruled in pertinent part, id. at 13-4:

[T]he court finds that Plaintiff's Verified Complaint does not state facts sufficient to constitute a cause of action against Davis for defamation. The grounds for the finding are: (1) considering the totality of the circumstances, the alleged statement of Davis is not defamatory; (2) the alleged statement of Davis is non-actionable opinion; and (3) Davis is immune from liability under Government Code section 820.4 and/or Civil Code section 47.
. . . Additionally, the Court finds that these defects cannot be cured by amendment. . . . [W]ith respect to the cause of action for defamation,5 because any amendment would not alter the alleged statement of Davis, which forms the basis for Plaintiff's cause of action for defamation, any such amendment could not state facts sufficient to state a cause of action for defamation against Davis, as the Court finds that the statement is not defamatory and/or that Davis is immune from suit related to that statement.

Defendant contends in her motion before this court that plaintiff's federal action is barred by res judicata because "[t]he allegations in both cases [state and federal] revolve around threats from Defendant Davis regarding Plaintiff's PLU status, and the ensuing contact from other inmates, allegedly orchestrated by Davis. Plaintiff has already litigated the same circumstances, and lost on the merits." ECF No. 33-1 at 4.

In response, plaintiff asserts that the claims pending in this case have "never been adjudicated in any prior action." ECF No. 39 at 1. Plaintiff explains that his state action was limited to his defamation claim against defendant Davis (clarifying "wherein it was alleged she defamed plaintiff's character in promulgating statements in a crowded library, i.e. she proclaimed that plaintiff charged large sums of money for his aid"), and did not involve "the fact the defendant threatened to take away plaintiff's PLU [status]" or "deal with any threats of violence or actual injury as this case does." Id. at 2, 4. Plaintiff further asserts that "the Lassen County case and this instant [case] were engendered out of two different, separate, and distinct actions taken by defendant, and occurring days apart on two different dates." Id. at 5. Plaintiff identifies April 4, 2014 as the date of defendant's alleged defamatory statements challenged in plaintiff'sstate court case; April 10, 2014 as the date of "the actual physical fight inside of B-4 Building in which plaintiff was shot with the 40 mm;" and April 12, 2014 as the date he was "accosted by Inmates Lancaster and Ramirez outdoors on the Rec Yard."6 Id. at 5, see also id. at 6-10.

In her response, defendant again asserts that all of plaintiff's claims "hinge[] on Defendant Davis' alleged threats regarding his PLU status;" "involve dates 'on or about [April 1, 2014];'" and therefore "should and could have been brought in a single action," thus barring plaintiff's federal action by res judicata. ECF No. 40 at 2.

III. Legal Standards
A. Legal Standards for Dismissal Under Rule 12(b)(6)

To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,...

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