Allen Hammler v. Godfry, et al.

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 ALLEN HAMMLER, Case No. 1:25-cv-01686-HBK (PC) 12 Plaintiff, ORDER TO RANDOMLY ASSIGN CASE TO A DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO 14 GODFRY, et al., DENY PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS UNDER 28 15 Defendants. U.S.C. § 1915 (g)1 16 (Doc. No. 6) 17 FOURTEEN-DAY OBJECTION PERIOD — 18 — 19 Plaintiff Allen Hammler, a prisoner incarcerated at California Medical Facility (“CMF”), 20 operated by California Department of Corrections and Rehabilitation (“CDCR”), initiated this 21 action by filing a pro se prisoner civil rights complaint under 42 U.S.C. § 1983 on November 13, 22 2025, in the Sacramento Division of this Court. (Doc. No. 1). The Sacramento Division 23 transferred Plaintiff’s case to this Division on December 1, 2025. (Doc. No. 3). On December 24 11, 2025, Plaintiff filed an application to proceed in forma pauperis. (Doc. No. 6. “IFP motion”). 25 The undersigned recommends the district court deny Plaintiff’s IFP motion under 28 U.S.C. § 26 1915(g) because Plaintiff has had at least three actions or appeals that constitute strikes and the — 27 — 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2025). 1 complaint does not establish that Plaintiff meets the imminent danger exception. 2 BACKGROUND 3 Plaintiff is currently incarcerated at CMF, but the events giving rise to this action occurred 4 at Kern Valley State Prison (“KVSP”). (Doc. No. 1 at 2:15-22). The complaint names as 5 Defendants: Godfry, Rodriguez, and Lopez. (Id. at 3). The complaint alleges the following 6 claims for relief: (1) First Amendment retaliation (id. at 13); (2) Eighth Amendment failure to 7 protect (id. at 14); (3) assault (id. at 15); (4) negligence (id. at 16); (5) intentional infliction of 8 emotional distress (id. at 18); and (6) violation of the Bane Act (id. at 20). 9 April 17, 2024 Events 10 The events giving rise to Plaintiff’s claims occurred on April 17, 2024, when Plaintiff was 11 housed in the mental health ward at KVSP “due to his having witnessed a murder and safety 12 concerns being engendered for c/o(s) being called participants in the murder.” (Id. ¶¶ 12, 14). 13 Plaintiff was on one-to-one observation, requiring constant watch by a correctional officer to 14 ensure he did not harm himself. (Id. ¶ 15). Defendant Rodriguez, a female correctional officer, 15 was assigned to watch Plaintiff on April 17, 2024. (Id. ¶ 16). At 1:45 p.m. that same day, 16 Defendant Godfry approached Plaintiff’s cell wearing his nametag but with his body watch 17 camera (“BWC”) turned off. (Id.). Defendant Godfry asked Plaintiff, “are you suicidal,” with “a 18 twisted expression on his face.” (Id. ¶ 19). Plaintiff asked Godfry to turn on his BWC, but 19 Godfry refused and made “further antagonizing statements.” (Id.). Godfry told Plaintiff he was 20 “(3rd watch) and all the chest pains [expletive] aint happening.” (Id.) Plaintiff responded that 21 Godfry was “showing off” for Rodriguez and told him, “no-one gives a [expletive] about you!” 22 (Id. ¶ 20). Godfry then asked Plaintiff, “Are you gonna come out for shower?” (Id. ¶ 20). 23 Plaintiff responded, “Yeah.” (Id.). Defendant Godfry then told Plaintiff, “I’m gonna get your 24 [expletive],” and hit his fist against the wall. (Id.). Defendants Godfry and Rodriguez then left. 25 (Id.). 26 Later that same day, when Plaintiff saw Defendant Lopez doing a security check, he told 27 him what happened with Defendants Rodriquez and Godfry. (Id. ¶ 22). Defendant Lopez told 28 Plaintiff “[i]f they left you then why should I stay,” and left as well. (Id.). Plaintiff became 1 anxious being left alone and thought “Godfry with others would return at any time/moment and 2 kill him, as [correctional officers] had tried on prior instance via fracturing his skull, three ribs 3 and bruising a left lung, then hiding him and his injuries for days seeking to cover it all up.” (Id. ¶ 4 24). 5 Shortly thereafter, another correctional officer stopped by Plaintiff’s cell and called 6 medical after Plaintiff told him what had occurred with Defendants Godfry, Rodriguez, and 7 Lopez. (Id. ¶ 25). However, Plaintiff refused to leave his cell for medical treatment out of fear of 8 being attacked by Defendant Godfry. (Id. ¶ 25). 9 June 18, 2024 Events 10 Plaintiff alleges on June 18, 2024, correctional officer Soto, “whom has sought to employ 11 other [inmates] to assault Plaintiff and had been reprimanded for it,” saw Plaintiff on a transport 12 van going out to Court and was recorded telling Plaintiff, “Oh yeah your the bitch I’ve been 13 looking for.” (Id. ¶ 26). Another correctional officer standing behind Soto who overheard 14 remarked, “That’s the reason we have cameras now Dudes doing [expletive] like that.” (Id. ¶ 27). 15 Plaintiff claims that “Soto and all others are still left there at KVSP to be a real danger to 16 Plaintiff.” (Id.) 17 On July 1, 2024, Plaintiff was transferred out of KVSP “for the reason of removing him 18 from a facility with Godfry and others whom were found to have retaliated against Plaintiff and 19 believed would not stop others from pursuing that retaliatory course.” (Id. ¶ 28). However, 20 Plaintiff states he “is still being scheduled” to be sent back to KVSP where Defendant “Godfry 21 and others remain an imminent threat in an ongoing manner.” (Id. ¶ 29). 22 As relief, Plaintiff seeks compensatory and punitive damages, as well as declaratory and 23 unspecified injunctive relief “as this court deems fit to cure the danger.” (Id. at 22). 24 MOTION TO PROCEED IFP 25 All parties instituting any civil action, suit, or proceeding in any district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of $405.00. 27 See 28 U.S.C. § 1914 (a). An action may proceed despite a party’s failure to pay this filing fee 28 only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 2 F.3d 1176, 1177 (9th Cir. 1999). 3 A. Applicable Three Strikes Law 4 The “Three Strikes Rule” states: In no event shall a prisoner bring a civil action or proceeding under 5 this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal 6 in the United States that was dismissed on grounds that it was frivolous, malicious, or fails to state a claim upon which relief may 7 be granted, unless the prisoner is under imminent danger of serious physical injury. — 8 — — 9 — 28 U.S.C. § 1915 (g). As part of the Prison Litigation Reform Act, the Three Strikes Rule was 10 enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 11 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought 12 unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment 13 plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, 14 or for failure to state a claim. Id.; see also Andrews, 493 F.2d at 1052. 15 For a dismissal to count as a strike, the dismissal had to be on a “prior occasion,” meaning 16 the order dismissing the case must have been docketed before plaintiff initiated the current case. 17 See § 1915(g). The reviewing court then looks to the basis of prior dismissals. Knapp v. Hogan, — 18 — 738 F.3d 1106, 1109 (9th Cir. 2013). A dismissal counts as a strike when the dismissal of the 19 action was for frivolity, maliciousness, failure to state a claim, or an appeal was dismissed for the 20 same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v. Los 21 Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count as 22 strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts as 23 a strike during the pendency of the appeal); Spencer v. Barajas, 140 F.4th 1061, 1068 (9th Cir. 24 2025) (finding a voluntary dismissal under Rule 41(a)(1) was not a strike because the dismissal 25 was not “‘on the grounds that’ the case was frivolous, malicious, or failed to state a claim”). It is 26 immaterial whether the dismissal for failure to state a claim was with or without prejudice, as 27 both count as a strike under § 1915(g). Lomax, 140 S. Ct. at 1727. When a district court disposes 28 of an in forma pauperis complaint requiring the full filing fee, then such a complaint is 1 “dismissed” for purposes of §1915(g). Louis Butler O’Neal v. Price, 531 F.3d 1146, 1153 (9th 2 Cir. 2008). 3 Once a prisoner-plaintiff has accumulated three strikes, he/she may not proceed without 4 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoner 5 “faced ‘imminent danger of serious physical injury’ at the time of filing” of the complaint. 6 Andrews, 493 F.3d at 1051-52 (addressing the imminent danger exception for the first time in the 7 Ninth Circuit). The court must construe the prisoner’s “facial allegations” liberally to determine 8 whether the allegations of physical injury are plausible. Williams v. Paramo, 775 F.3d 1182 , 9 1190 (9th Cir. 2015). 10 To avail oneself of this narrow exception, “the PLRA requires a nexus between the 11 alleged imminent danger and the violations of law alleged in the prisoner’s complaint.” Ray v. 12 Lara, 31 F. 4th 692, 700-701 (9th Cir. Apr. 11, 2022) (adopting nexus test). “In deciding 13 whether such a nexus exists, we will consider (1) whether the imminent danger of serious 14 physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted 15 in the complaint and (2) whether a favorable judicial outcome would redress that injury.” Id. at 16 700 (adopting test as articulated by Second Circuit, citation omitted). The three-strikes litigant 17 must meet both requirements of the nexus test to proceed. Id. 18 Assertions of imminent danger may be rejected as overly speculative, fanciful, or 19 “conclusory or ridiculous.” Andrews, 493 F.3d at 1057, fn. 11 . Similarly, “vague and utterly 20 conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 F.3d 1226 , 21 1231–32 (10th Cir. 1998). Instead, the “imminent danger” exception exists “for genuine 22 emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v. 23 Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus, conditions that posed imminent danger to a 24 plaintiff at some earlier times are immaterial, as are any subsequent conditions. Andrews, 493 25 F.3d at 1053; Blackman v. Mjening, 2016 WL 5815905 , at *1 (E.D. Cal. Oct. 4, 2016). 26 B. Plaintiff Has Three or More Qualifying Strikes 27 Plaintiff is identified as a “three-striker” on the national Pro Se Three Strike Database, and 28 a review of the Pacer Database reveals Plaintiff has filed approximately 70 civil actions or 1 appeals in a court of the United States and has been deemed a three-striker under § 1915(g) prior 2 to filing this lawsuit.2 Although not exhaustive, for purposes of this report and recommendation, 3 each of the following cases are properly deemed qualifying § 1915(g) strikes,3 and each dismissal 4 was entered before Plaintiff commenced the instant action: 5 • Hammler v. Director of CDCR, Case No. 1:17-cv-00097 (N.D. Cal.) (dismissed for failure 6 to state a claim upon which relief may be granted after Plaintiff failed to file amended 7 complaint) (Apr. 27, 2017) (Doc. No. 10); 8 • Hammler v. Kernan, Case No. 3:18-cv-001170-DMS-NLS (S.D. Cal.) (dismissed for 9 failure to state a claim and as frivolous.) (Dec. 10, 2018) (Doc. No. 11); 10 • Hammler v. Hough, Case No. 3:18-cv-01319 (S.D. Cal.) (dismissed for failure to state a 11 claim and as frivolous.) (May 24, 2019) (Doc. No. 12); 12 • Hammler v. California, Case No. 1:20-cv-630-DAD-GSA (E.D. Cal.) (dismissed for 13 failure to exhaust appearing on face of complaint) (Oct. 30, 2020) (Doc. No. 26); 14 • Hammler v. Katz, Case No. 2:19-cv-00467-TLN-CKD (E.D. Cal.) (dismissed for failure to 15 state a claim) (Jan. 15, 2021) (Doc. No. 29). 16 • Hammler v. Hough, Case No. 19-55732 (9th Cir.) (appeal dismissed as frivolous) (January 17 9, 2020); and 18 • Hammler v. Peterson, Case No. 20-16093 (9th Cir.) (appeal dismissed as frivolous) 19 (February 22, 2021). 20 Plaintiff status as a three-striker has been recognized by the courts. See, e.g., Case Nos. 21 1:21-cv-00122-AWI-GSA (E.D. Cal. 2021); 2:21-cv-02065-JGB-SP (C.D. Cal. 2021); 1:25-cv22 00728-KES-BAM (E.D. Cal. 2025). — 23 — 24 2 See http://nprose.circ9.dcn/LitigantCase.aspx?PersonID=8094 (National Pro Se Database); http://pacer.usci.uscourts.gov. — 25 — 3 Harris v. Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017) (“[W]hen we review a dismissal to determine 26 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 frivolous, malicious, or failure to state a 27 claim.”) (citations omitted); El-Shaddai v. Zamora, 833 F.3d 1036, 1044 (9th Cir. 2016) (complaint may be subject to dismissal for failure to state a claim where failure to exhaust is clear from the face of the 28 complaint). 1 C. The Imminent Danger Exception Does Not Apply 2 Due to Plaintiff’s three-strike status, he may not proceed without prepayment of the filing 3 fee unless the complaint contains plausible allegations that Plaintiff is in imminent danger of 4 serious physical injury on the date the complaint is filed. Andrews, 493 F.3d at 1052-53 . 5 Liberally construing the complaint, the undersigned finds that it contains no plausible allegations 6 sufficient to allege Plaintiff faced imminent danger of serious physical injury at the time he filed 7 this action. 8 Plaintiff’s complaint stems from events that took place in April and June of 2024, when he 9 was housed at KVSP, which is in Delano, California, Kern County. Plaintiff is currently housed 10 at CMF, located in Vacaville, California, Solano County. (Doc. No. 1 at 2). The complaint 11 submitted in the instant case contains identical factual allegations to the complaint Plaintiff filed 12 in Hammler v. Godfry, et al., No. :25-cv-00728-KES-BAM (E.D. Cal.). There, the court found 13 these same allegations did not credibly allege imminent danger to avoid the three strike bar. (See 14 September 22, 2025 Order adopting findings and recommendations that plaintiff’s application to 15 proceed in forma pauperis be denied pursuant to 28 U.S.C. § 1915 (g) and that plaintiff be ordered 16 to pay the $405.00 initial filing fee in full to proceed with this action). 17 To avoid the three strike status, Plaintiff continues to assert that if transferred to KVSP, 18 “Godfry and others [at KVSP] remain a[n] imminent threat, in ongoing manner” due to the 19 statements Godfry made in April 2024. (Id. ¶ 20). A prisoner’s allegations that arise out of a 20 single verbal threat occurring over a year ago are insufficient to show an ongoing threat. Garrett 21 v. Pat. Horn, Warden of Kern Valley State Prison, No. 1:25-cv-00128-HBK (PC), 2025 WL 22 868899, at *13 (E.D. Cal. Mar. 20, 2025) (finding a single incident of excessive force occurring 23 months prior to the filing of the complaint failed to show imminent physical danger), report and 24 recommendation adopted, 2025 WL 1151075 (E.D. Cal. April 18, 2025), appeal dismissed, 2025 25 WL 3205862 (9th Cir. Oct. 23, 2025); Cruz v. Calderon, No. 22-CV-05556-HSG, 2022 WL 26 18399570, at *3 (N.D. Cal. Dec. 16, 2022) (verbal threats unaccompanied by further action fail to 27 satisfy § 1915(g)’s imminent danger exception); Gonzales v. Castro, No. 1:09-cv-01545-AWI28 MJS, 2010 WL 2471030 , at *2 (E.D. Cal. June 9, 2010) (finding prison staff retaliation occurring 1 three months before filing of complaint insufficient to show an ongoing threat), report and 2 recommendation adopted, 2010 WL 3341862 (E.D. Cal. Aug. 25, 2010). 3 Similarly, Plaintiff’s continued claim that he will be transferred back to KVSP fares no 4 better. The complaint is devoid of facts regarding when Plaintiff will be transferred back to 5 KVSP. (See Doc. No. 1). While the Court takes Plaintiff’s well-pleaded factual allegations as 6 true, the Court is not required to accept Plaintiff’s conclusory statement that an unspecified future 7 transfer to KVSP will occur. Further, Plaintiff’s fear of future harm from a potential transfer is 8 insufficient to allege present imminent danger. Hammler v. Godfry et al., No. 1:25-cv-007289 KES-BAM (E.D. Cal. Aug. 18, 2025), report and recommendation adopted, No. 1:25-cv-0072810 KES-BAM (E.D. Cal. Sept. 22, 2025) (finding plaintiff failed to allege imminent danger based on 11 a transfer when no dates of the transfer were given); Roberts v. California, No. 1:22-CV-0013112 HBK, 2022 WL 1102531 , at *3 (E.D. Cal. Apr. 13, 2022), report and recommendation adopted, 13 No. 1:22-CV-00131-DAD-HBK, 2022 WL 1460371 (E.D. Cal. May 9, 2022) (finding no 14 imminent danger when plaintiff is no longer at the facility he alleges the harm occurred at). 15 Based on the foregoing, the Court finds that Plaintiff has not alleged facts from which the 16 court can infer that Plaintiff is currently under threat of imminent physical harm sufficient to 17 invoke the § 1915(g) exception. 18 Accordingly, it is hereby ORDERED: 19 The Clerk of Court shall randomly assign this case to a district judge for consideration of 20 these Findings and Recommendations. 21 It is further RECOMMENDED: 22 1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 6), be DENIED, pursuant to — 23 — 28 U.S.C. § 1915 (g); and 24 2. Plaintiff be ORDERED to pay the $405.00 filing fee in full to proceed in this action, 25 absent which the Court dismiss this action without prejudice. 26 NOTICE TO PARTIES 27 These Findings and Recommendations will be submitted to the United States District 28 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(l). Within 14 days 1 | after being served with a copy of these Findings and Recommendations, a party may file written 2 | objections with the Court. Jd.; Local Rule 304(b). The document should be captioned, 3 | “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen 4 | (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party 5 | wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 6 | CM/ECF document and page number, when possible, or otherwise reference the exhibit with 7 | specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by 8 || the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. 9 | § 636(b)d)(C). A party’s failure to file any objections within the specified time may result in the 10 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). — 11 — 12 Dated: _ December 22, 2025 Gow Zh. Bareh Zack 13 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —