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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

EUREKA DIVISON

ALLEN HAMMLER,

Plaintiff,

v.

DIRECTOR OF CDCR, et. al,

Defendants.

Case No. 17-cv-0097-NJV (PR) 

ORDER OF DISMISSAL WITH 

LEAVE TO AMEND

Docket No. 7

Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. 

He has been granted leave to proceed in forma pauperis. (Doc. 8.) He has also filed a motion for 

a temporary restraining order and preliminary injunction.

DISCUSSION

Standard of Review

Federal courts must engage in a preliminary screening of cases in which prisoners seek 

redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 

1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 

which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 

monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 

pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 

Cir. 1990).

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 

claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 

statement need only “‘give the defendant fair notice of what the . . . . claim is and the grounds 

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upon which it rests.’”” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although 

in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's 

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . 

Factual allegations must be enough to raise a right to relief above the speculative level.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 

proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United 

States Supreme Court has recently explained the “plausible on its face” standard of Twombly: 

“While legal conclusions can provide the framework of a complaint, they must be supported by 

factual allegations. When there are well-pleaded factual allegations, a court should assume their 

veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft 

v. Iqbal, 556 U.S. 662, 679 (2009). 

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 

that a right secured by the Constitution or laws of the United States was violated, and (2) that the 

alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 

487 U.S. 42, 48 (1988). 

Legal Claims 

Plaintiff seeks to stop his forced medication with psychotropic drugs.

The Supreme Court has recognized a liberty interest in freedom from unwanted 

antipsychotic drugs. Washington v. Harper, 494 U.S. 210, 221-22 (1990); United States v. RuizGaxiola, 623 F.3d 684, 691 (9th Cir. 2010). For convicted inmates, or those awaiting trial, the 

“liberty interest in avoiding unwanted medication must be defined in the context of the inmate’s 

confinement.” United States v. Loughner, 672 F.3d 731, 745 (9th Cir. 2012) (quoting Harper, 494 

U.S. at 222). If it is determined that an inmate is a danger to himself or others, and treatment in 

his medical interest, the Due Process Clause allows the State to treat an inmate with serious mental 

illness with antipsychotropic drugs against his will. Harper, 494 U.S. at 227; cf. Riggins v. 

Nevada, 504 U.S. 127, 135 (1992) (“forcing anti-psychotic drugs on a convicted prisoner is 

impermissible absent a finding of overriding justification and a determination of medical 

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appropriateness.”). In the context of Harper and Riggins, an invasion of the human person can 

only be justified by a determination by a neutral factfinder that the antipsychotic drugs are 

medically appropriate and that the circumstances justify their application. See Kulas v. Valdez, 

159 F.3d 453, 455-56 (9th Cir. 1998).

In addition to the substantive requirements above, the administration of antipsychotic 

drugs “cannot withstand challenge if there are no procedural safeguards to ensure the prisoner’s 

interests are taken into account.” Harper, 494 U.S. at 233. A prisoner must be given notice and 

the right to be present at and participate in a hearing. See Kulas, 159 F.3d at 456. But these 

procedural safeguards may not apply in an emergency situation where the prisoner poses an 

imminent and serious danger to himself or others. See id. A determination that an inmate can be 

properly involuntarily medicated due to dangerousness need not be made by a judicial decision or 

judicial hearing as opposed to an administrative determination. Loughner, 672 F.3d at 754. 

Further, the decision to forcibly medicate because of dangerousness need not meet any heightened 

standard of proof in order to comport with due process. Id. at 756. Nor is an inmate, medicated 

under the Harper standard, entitled to counsel at the involuntary medication hearing. Id. at 756-

57.

In California, the procedural requirements for involuntary medication of prisoners is set 

out in Keyhea v. Rushen, 178 Cal.App.3d 526 (Cal. Ct. App. 1986). “A Keyhea order permits the 

long-term involuntary medication of an inmate upon a court finding that the course of involuntary 

medication is recommended and that the prisoner, as a result of mental disorder, is gravely 

disabled and incompetent to refuse medication, or is a danger to himself or others.” Davis v. 

Walker, 745 F.3d 1303, 1307 n.2 (9th Cir. 2014).

Plaintiff filed this complaint on December 24, 2016. He states he was being pressured to 

take psychotropic medication. He argues that medical staff pushed the medication because 

plaintiff was referred to medical staff after plaintiff made what was deemed to be paranoid 

statements regarding other correctional officers. Medical staff concluded that psychotropic 

medication could help. Plaintiff argues that he is of sound mind and does not need to be 

medicated because he has a First Amendment right to make allegations against prison staff. 

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Plaintiff is worried about the side effects of the medication. Based on the allegations in the 

complaint it does not appear that plaintiff had been forcibly medicated as he stated he was 

threatened with forcible medication if he did not sign a consent form.

However, plaintiff filed a motion for a temporary restraining order and preliminary 

injunction on January 24, 2017. He states that the forcible medication started on December 24, 

2016. He contends that the medication has adversely affected his physical ability to move around 

and his mental ability to adequately litigate several other civil rights cases. Yet, plaintiff does not 

describe any of the procedures that were or were not used before the forcible medication. The 

complaint is dismissed with leave to amend to provide more information. Plaintiff should provide 

a clearer narrative on when events occurred and he should describe the procedures of the forced 

medication and if a Keyhea hearing was held.

Moreover, plaintiff states that he commenced the inmate grievance process, but it is not 

completed. A prisoner must exhaust his administrative remedies for constitutional claims prior to 

asserting them in a civil rights complaint. 42 U.S.C. § 1997e(a); McKinney v. Carey, 311 F.3d 

1198, 1199 (9th Cir. 2002). If a prisoner exhausts a claim after bringing it before the court, his 

subsequent exhaustion cannot excuse his earlier failure to exhaust. Vaden v. Summerhill, 449 F.3d 

1047, 1051 (9th Cir. 2006) (“[A prisoner] may initiate litigation in federal court only after the 

administrative process ends and leaves his grievances unredressed. It would be inconsistent with 

the objectives of the statute to let him submit his complaint any earlier than that.”). When the 

district court concludes that the prisoner has not exhausted administrative remedies on a claim, 

“the proper remedy is dismissal of the claim without prejudice.” Wyatt v. Terhune, 315 F.3d, 

1108, 1120 (9th Cir. 2003) overruled on other grounds.

In an amended complaint, plaintiff should provide more information regarding exhaustion. 

If this action continues and is not exhausted until a later date, defendants could file a motion to 

dismiss for failure to exhaust which would delay speedy resolution of plaintiff’s claims.

Plaintiff also seeks a temporary restraining order and a preliminary junction. Federal Rule 

of Civil Procedure 65 sets forth the procedure for issuance of a preliminary injunction or 

temporary restraining order (“TRO”). Prior to granting a preliminary injunction, notice to the 

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adverse party is required. See Fed. R. Civ. P. 65(a)(1). Therefore, a motion for preliminary 

injunction cannot be decided until the parties to the action are served. See Zepeda v. INS, 753 F.2d 

719, 727 (9th Cir. 1983). A TRO may be granted without written or oral notice to the adverse 

party or that party’s attorney only if: (1) it clearly appears from specific facts shown by affidavit 

or by the verified complaint that immediate and irreparable injury, loss or damage will result to the 

applicant before the adverse party or the party’s attorney can be heard in opposition, and (2) the 

applicant’s attorney certifies in writing the efforts, if any, which have been made to give notice 

and the reasons supporting the claim that notice should not be required. See Fed. R. Civ. P. 65(b).

Plaintiff has failed to meet his burden to show that it clearly appears from specific facts 

shown that immediate and irreparable injury will result to plaintiff before defendant can be served. 

It is also not clear at this early stage if plaintiff has exhausted his claim or if he has even presented 

a cognizable claim. The motion is dismissed without prejudice. If the claim is exhausted and the 

case continues beyond service, plaintiff may file an amended motion. 

CONCLUSION

1. The motion for a temporary restraining order and preliminary injunction (Docket No. 7) 

is DENIED without prejudice for the reasons set forth above.

2. The complaint is DISMISSED with leave to amend in accordance with the standards 

set forth above. The amended complaint must be filed within twenty-eight (28) days of the date 

this order is filed and must include the caption and civil case number used in this order and the 

words AMENDED COMPLAINT on the first page. Because an amended complaint completely 

replaces the original complaint, plaintiff must include in it all the claims he wishes to present. See 

Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from 

the original complaint by reference. Failure to amend within the designated time will result in the 

dismissal of this case.

3. It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court 

informed of any change of address by filing a separate paper with the clerk headed “Notice of 

Change of Address,” and must comply with the court's orders in a timely fashion. Failure to do so 

may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 

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Procedure 41(b).

IT IS SO ORDERED.

Dated: March 2, 2017

________________________

NANDOR J. VADAS

United States Magistrate Judge

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