(PC)Avent v. Cate et al, No. 2:2009cv03482 - Document 27 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 6/16/11 RECOMMENDING that 21 Motion for Summary Judgment filed by L. Lesane be denied. Referred to Judge John A. Mendez; Objections due 21 days after being served with these findings and recommendations. (Meuleman, A)
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(PC)Avent v. Cate et al Doc. 27 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 RUFUS A. AVENT, 11 Plaintiff, 12 13 No. CIV S-09-3482 JAM DAD P vs. M. CATE et al., 14 Defendants. 15 FINDINGS AND RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking 17 relief under 42 U.S.C. § 1983. This matter is before the court on a motion for summary 18 judgment brought on behalf of defendant Lesane pursuant to Rule 56 of the Federal Rules of 19 Civil Procedure. Plaintiff has filed an opposition to the motion, and defendant has filed a reply. 20 BACKGROUND 21 Plaintiff is proceeding on his original complaint against correctional sergeant 22 Lesane. Therein, plaintiff alleges that defendant Lesane has repeatedly retaliated against plaintiff 23 for filing and pursuing inmate appeals against defendant Lesane. Specifically, plaintiff alleges 24 that defendant Lesane has threatened him with pepper spray, conducted searches of his assigned 25 dormitory, and confiscated his personal property and legal work. (Compl. at 8-8B & Exs. A & 26 B.) 1 Dockets.Justia.com 1 2 SUMMARY JUDGMENT STANDARDS UNDER RULE 56 Summary judgment is appropriate when it is demonstrated that there exists “no 3 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 4 matter of law.” Fed. R. Civ. P. 56(c). 5 6 7 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 8 9 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “[W]here the 10 nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary 11 judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers 12 to interrogatories, and admissions on file.’” Id. Indeed, summary judgment should be entered, 13 after adequate time for discovery and upon motion, against a party who fails to make a showing 14 sufficient to establish the existence of an element essential to that party’s case, and on which that 15 party will bear the burden of proof at trial. See id. at 322. “[A] complete failure of proof 16 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 17 immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as 18 whatever is before the district court demonstrates that the standard for entry of summary 19 judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323. 20 If the moving party meets its initial responsibility, the burden then shifts to the 21 opposing party to establish that a genuine issue as to any material fact actually does exist. See 22 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 23 establish the existence of this factual dispute, the opposing party may not rely upon the 24 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 25 form of affidavits, and/or admissible discovery material, in support of its contention that the 26 dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party 2 1 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 2 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 3 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 4 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 5 return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 6 1436 (9th Cir. 1987). 7 In the endeavor to establish the existence of a factual dispute, the opposing party 8 need not establish a material issue of fact conclusively in its favor. It is sufficient that “the 9 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 10 versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary 11 judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a 12 genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory 13 committee’s note on 1963 amendments). 14 In resolving the summary judgment motion, the court examines the pleadings, 15 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 16 any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 17 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the 18 court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 19 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 20 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 21 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 22 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 23 show that there is some metaphysical doubt as to the material facts . . . . Where the record taken 24 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 25 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 26 ///// 3 1 2 OTHER APPLICABLE LEGAL STANDARDS I. Civil Rights Act Pursuant to 42 U.S.C. § 1983 3 The Civil Rights Act under which this action was filed provides as follows: 4 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 5 6 7 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 8 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 9 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 10 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 11 meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or 12 omits to perform an act which he is legally required to do that causes the deprivation of which 13 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 14 Moreover, supervisory personnel are generally not liable under § 1983 for the 15 actions of their employees under a theory of respondeat superior and, therefore, when a named 16 defendant holds a supervisorial position, the causal link between him and the claimed 17 constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 18 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory 19 allegations concerning the involvement of official personnel in civil rights violations are not 20 sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 21 II. First Amendment Retaliation 22 Under the First Amendment, prisoners have a constitutional right to file prison 23 grievances and pursue civil rights litigation in the courts. See Rhodes v. Robinson, 408 F.3d 24 559, 567 (9th Cir. 2005). Prison officials may not retaliate against prisoners for doing so. See id. 25 at 568. In this regard, the Ninth Circuit has explained: 26 ///// 4 1 Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. 2 3 4 5 Id. at 567-68. 6 7 DEFENDANT LESANE’S MOTION FOR SUMMARY JUDGMENT I. Defendant’s Statement of Undisputed Facts and Evidence 8 Defendant Lesane’s statement of undisputed facts is supported by citations to his 9 own declaration signed under penalty of perjury. It is also supported by citations to plaintiff’s 10 complaint and the exhibits attached thereto. The evidence submitted to the court by defendant 11 Lesane establishes the following. 12 On April 2, 2009, defendant correctional sergeant Lesane told plaintiff to get out 13 of the shower. Plaintiff did not do so and instead asked, “What did I do?” Plaintiff also asked if 14 he could “rinse the soap off.” Defendant Lesane allowed him to rinse off and then pointed his 15 pepper spray at plaintiff for failing to obey orders. The defendant instructed plaintiff to get out of 16 the shower because it was nearing the time to count inmates at their cells. (Def.’s SUDF 1-3, 17 Lesane Decl., Pl’.s Compl.) 18 On April 3, 2009, defendant Lesane and correctional officers Love and Vang 19 conducted a routine search of plaintiff’s dorm. During the search they confiscated various items. 20 The search was not limited to plaintiff’s dorm. (Def.’s SUDF 4, Lesane Decl., Pl’.s Compl.) 21 22 On April 9, 2009, plaintiff filed an inmate grievance concerning defendant Lesane’s conduct of April 2 and 3, 2009. (Def.’s SUDF 5, Lesane Decl., Pl’.s Compl.) 23 According to defendant Lesane, he was not retaliating against plaintiff when he 24 pointed his pepper spray at plaintiff nor when he conducted a routine search of plaintiff’s dorm. 25 In fact, defendant Lesane does not even recall plaintiff filing any grievances or complaints 26 ///// 5 1 against him prior to the incidents placed at issue in this litigation. (Def.’s SUDF 6-7, Lesane 2 Decl., Pl’.s Compl.) 3 II. Defendant Lesane’s Arguments 4 Defense counsel argues that defendant Lesane is entitled to summary judgment in 5 his favor on the merits of plaintiff’s retaliation claim because plaintiff’s allegations do not rise to 6 the level of a constitutional violation. As an initial matter, counsel acknowledges plaintiff’s right 7 to “speak up” and file prisoner grievances challenging the conditions of his confinement and not 8 be punished for doing so. Here, however, counsel contends that defendant Lesane did not take 9 any actions against plaintiff to punish him for filing prior grievances against the defendant. In 10 fact, defendant Lesane does not even recall plaintiff filing grievances against him prior to the one 11 plaintiff filed on April 9, 2009, after the alleged incidents in question. In addition, counsel 12 contends that defendant Lesane’s actions did not chill plaintiff’s rights under the First 13 Amendment as evidenced by plaintiff’s pursuit of his April 9, 2009 prison grievance. Finally, 14 counsel contends that defendant Lesane had a legitimate penological interest in demanding that 15 plaintiff get out of the shower on April 2, 2009. According to the defendant, inmates in the 16 shower needed to be in their cells for counting. Likewise, defense counsel contends that 17 defendant Lesane had a legitimate penological interest in searching plaintiff’s dorm since the 18 seizure of contraband minimizes risks to institution, inmate, and custody staff safety. (Def.’s 19 Mem. of P. & A. at 7-10.) 20 Alternatively, defense counsel argues that defendant Lesane is entitled to 21 summary judgment in his favor based upon qualified immunity because, assuming the court finds 22 that a constitutional violation has occurred, a reasonable person in the defendant’s position could 23 have believed that insisting that plaintiff get out of the shower for the count and searching and 24 confiscating plaintiff’s property in a routine search was lawful conduct. (Def.’s Mem. of P. & A. 25 at 10-11.) 26 ///// 6 1 III. Plaintiff’s Opposition 2 Plaintiff’s opposition is supported by his own declaration signed under penalty of 3 perjury and by a response to defendant Lesane’s statement of undisputed facts. Therein, plaintiff 4 argues that, on April 2, 2009, he was in the shower when defendant Lesane “busted in” and 5 ordered him to get out while allowing two other inmates to continue showering. Plaintiff asked 6 what he did to prompt defendant Lesane to point pepper spray in his face. Plaintiff argues that he 7 also told defendant Lesane that he was going to file another complaint against him due to the 8 defendant’s behavior. According to plaintiff, defendant Lesane laughed in response and told 9 plaintiff he would be back to take all of his property. On the following day, according to 10 plaintiff, defendant Lesane arrived at plaintiff’s dorm and confiscated all of his personal and 11 state-issued property. (Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 2 & 6, Pl.’s Decl.) 12 Plaintiff also contends that the defendant Lesane is having a self-serving lapse in 13 memory when he declares that he does not recall plaintiff filing prior grievances against him. 14 Plaintiff contends that, on December 15, 2008, he filed a staff complaint (Log # 08-M-3972) 15 against defendant Lesane. Plaintiff asserts that on February 8, 2009, he filed another staff 16 complaint against defendant Lesane (Log # 09-M-459). Plaintiff contends that he also verbally 17 warned defendant Lesane that he intended to file another staff complaint against the defendant 18 after he pointed pepper spray at plaintiff, which in turn led to the defendant Lesane searching 19 plaintiff’s dormitory and confiscating all of his property the next day. (Pl.’s Opp’n to Def.’s 20 Mot. for Summ. J. at 2-3 & 7, Pl.’s Decl.) 21 IV. Defendant Lesane’s Reply 22 In reply, defense counsel does not dispute that defendant Lesane threatened 23 plaintiff with pepper spray, conducted a search of plaintiff’s assigned dorm, and confiscated his 24 personal property and legal work, but defense counsel contends that defendant Lesane engaged in 25 these actions in the course of his duties as a correctional officer and not in retaliation for plaintiff 26 having filed grievances against the defendant in the past. Counsel reiterates that the defendant 7 1 ordered plaintiff out of the shower so he would be in his cell and bedside during the inmate count 2 on the day in question. In addition, counsel argues that defendant Lesane conducted a routine 3 search of plaintiff’s dorm after obtaining information that there was smoke and possible tobacco 4 or marijuana use occurring in that dorm. Defense counsel also reiterates that defendant Lesane’s 5 actions did not have a chilling effect on plaintiff’s conduct. In fact, counsel, asserts, plaintiff 6 filed numerous documents against defendant Lesane even after the defendant’s alleged retaliatory 7 conduct. Finally, counsel reiterates that even if the court were to assume a constitutional 8 violation in this case, defendant Lesane acted reasonably under the circumstances and is entitled 9 to qualified immunity. (Def.’s Reply at 2-11, Lesane Supp. Decl.) 10 11 12 ANALYSIS I. Plaintiff’s Retaliation Claim The undersigned finds that defendant Lesane has borne his initial responsibility of 13 demonstrating that no reasonable juror could conclude that he retaliated against plaintiff in 14 violation of the First Amendment. Specifically, the evidence presented by defendant Lesane 15 establishes that on April 2, 2009, defendant Lesane told plaintiff to get out of the shower. 16 Plaintiff did not comply with the order and instead asked, “What did I do?” Plaintiff also asked 17 if he could “rinse the soap off.” Defendant Lesane allowed him to rinse off and then pointed his 18 pepper spray at him in order to get plaintiff out of the shower. The defendant instructed plaintiff 19 to get out of the shower because it was nearing the time to count inmates in their cells. On the 20 following day, defendant Lesane, along with correctional officers Love and Vang conducted a 21 routine search of plaintiff’s dorm and confiscated various items. They searched the dorm to 22 confiscate and eliminate tobacco and/or marijuana. Defendant Lesane was not retaliating against 23 plaintiff when he pointed his pepper spray at him or when he searched his dorm. In fact, he does 24 not recall plaintiff filing any grievances or complaints against him prior to the incidents at issue 25 in this litigation. (Lesane Decls., Pl’.s Compl.) Given this evidence, the burden shifts to plaintiff 26 to establish the existence of a genuine issue of material fact with respect to his retaliation claim. 8 1 The undersigned finds that plaintiff has submitted sufficient evidence establishing 2 a legitimate dispute as to a genuine issue of material fact in support of his retaliation claim. First, 3 as to the adverse action component of plaintiff’s retaliation claim, it is undisputed that defendant 4 Lesane threatened plaintiff with pepper spray while he was in the midst of taking a shower. In 5 addition, according to plaintiff, defendant Lesane threatened to take all of plaintiff’s property 6 after plaintiff told the defendant that he was going to file another staff complaint against him. 7 Defendant Lesane’s threats could easily be construed as a threat of adverse action. See Brodheim 8 v. Cry, 584 F.3d 1262 (9th Cir. 2009). In Brodheim, the Ninth Circuit explained that “the mere 9 threat of harm can be an adverse action, regardless of whether it is carried out because the threat 10 itself can have a chilling effect.” Id. at 1270. “The power of a threat lies not in any negative 11 actions eventually taken, but in the apprehension it creates in the recipient of the threat.” Id. at 12 1271. Finally, it is undisputed that, on the day following the incident in the shower, defendant 13 Lesane and his fellow officers did in fact search and/or confiscated plaintiff’s personal property. 14 Viewing the facts in the light most favorable to plaintiff, defendant Lesane’s threats towards 15 plaintiff as well as his search of plaintiff’s dorm and/or confiscation of his property constitute 16 adverse actions. See, e.g., Valandingham v. Bojorquez, 866 F.2d 1135, 1137-38 (9th Cir. 1989) 17 (concluding that plaintiff’s showing of the existence of a genuine issue of material fact as to his 18 retaliation claim precluded the granting of summary judgment in favor of the defendant). 19 To be sure, a retaliation claim cannot rest on the logical fallacy of post hoc, ergo 20 propter hoc, literally, “after this, therefore because of this.” Huskey v. City of San Jose, 204 21 F.3d 893, 899 (9th Cir. 2000). The plaintiff must show causation or that the defendant was 22 substantially motivated by or because of plaintiff’s protected conduct. In this case, plaintiff has 23 offered evidence of causation in the form of suspect timing. See Pratt v. Rowland, 65 F.3d 802, 24 807 (9th Cir. 1995) (“timing can properly be considered as circumstantial evidence of retaliatory 25 intent.”). Specifically, plaintiff has presented evidence that defendant Lesane threatened plaintiff 26 with pepper spray not long after plaintiff had filed two staff complaints against the defendant. In 9 1 addition, defendant Lesane threatened to take all of plaintiff’s property and subsequently 2 searched plaintiff’s dorm and confiscated his personal and state-issued property after plaintiff 3 told the defendant that he was going to file another staff complaint against him for his alleged 4 conduct in connection with the incident in the shower room. This evidence is by no means 5 conclusive of retaliatory motive. However, again, viewing the facts in the light most favorable to 6 plaintiff, the timing of events combined with the statements allegedly made by defendant Lesane 7 are sufficient to raise a triable issue of fact regarding defendant Lesane’s motives. See Bruce v. 8 Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (statements and suspect timing raised triable issue of 9 fact regarding whether the defendants’ motive behind plaintiff’s gang validation was retaliatory). 10 As to the fourth prong of plaintiff’s retaliation claim, the chilling effect on 11 plaintiff’s exercise of his First Amendment rights, the Ninth Circuit has explained that focusing 12 on whether a plaintiff was actually chilled in the exercise of his constitutional rights is incorrect. 13 Brodheim, 584 F.3d 1271 (citing Rhodes, 408 F.3d at 568-69.). An objective standard governs 14 the chilling inquiry. Specifically, the Ninth Circuit has held that a plaintiff does not have to show 15 that “his speech was actually inhibited or suppressed,” but rather that the adverse action at issue 16 “would chill or silence a person of ordinary firmness from future First Amendment activities.” 17 Rhodes, 408 F.3d at 568-69. The Ninth Circuit has explained that “it would be unjust to allow a 18 defendant to escape liability for a First Amendment violation merely because an unusually 19 determined plaintiff persists in his protected activity.” Rhodes, 408 F.3d at 568 (quoting 20 Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999)). In the 21 prison context in particular, the Ninth Circuit has noted that the consequences of not employing 22 an objective standard would be “remarkably perverse”: 23 [T]he Prison Litigation Reform Act of 1995 (“PLRA”) establishes strict prerequisites to the filing of prisoner civil rights litigation . . . . Rejecting [a prisoner’s retaliation] suit on the basis of his having filed administrative grievances seeking to vindicate his rights thus would establish a rule dictating that, by virtue of an inmate’s having fulfilled the requirements necessary to pursue his cause of 24 25 26 ///// 10 1 action in federal court, he would be precluded from prosecuting the very claim he was forced to exhaust. 2 3 4 5 Indeed, were we to adopt such a theory [that a prisoner’s filing of a retaliation suit precludes relief on a retaliation claim], prisoner civil rights plaintiffs would be stuck in an even more vicious Catch-22. The only way for an inmate to obtain relief from retaliatory conduct would be to file a federal lawsuit; yet as soon as he or she does, it would become clear that he or she cannot adequately state a claim for relief. 6 7 Rhodes, 408 F.3d at 569. In this case, this court cannot say as a matter of law that a reasonable 8 person would not have been chilled in the exercise of his constitutional rights by defendant 9 Lesane’s alleged threats and conduct. 10 Finally, as to the fifth prong of plaintiff’s retaliation claim, the court is required to 11 “afford appropriate deference and flexibility” to prison officials when evaluating proffered 12 legitimate correctional reasons for alleged retaliatory conduct. Pratt, 65 F.3d at 807. Preserving 13 institutional order, discipline, and security are legitimate penological interests that, if they 14 provide the motivation for an official act taken, will defeat a retaliation claim. See Barnett v. 15 Centoni, 31 F.3d 813, 816 (9th Cir. 1994); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). 16 However, “prison officials may not defeat a retaliation claim on summary judgment simply by 17 articulating a general justification for a neutral process, when there is a genuine issue of material 18 fact as to whether the action was taken in retaliation for the exercise of a constitutional right.” 19 Bruce, 351 F.3d at 1289-90. Here, for example, if defendant Lesane used his search of plaintiff’s 20 dorm as “a cover or a ruse” to retaliate against plaintiff for the staff complaints plaintiff had 21 previously filed or for expressing his intent to file a staff complaint with respect to the 22 defendant’s alleged conduct in the shower room incident, the defendant cannot now assert that 23 his search of plaintiff’s dorm and seizure of plaintiff’s property served legitimate correctional 24 goals. Viewing the facts in the light most favorable to plaintiff, the court finds there is sufficient 25 conflicting evidence to raise a triable issue of fact regarding whether defendant Lesane’s actions 26 were retaliatory in nature. 11 1 III. Qualified Immunity 2 “Government officials enjoy qualified immunity from civil damages unless their 3 conduct violates ‘clearly established statutory or constitutional rights of which a reasonable 4 person would have known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting 5 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is presented with a qualified 6 immunity defense, the central questions for the court are (1) whether the facts alleged, taken in 7 the light most favorable to the plaintiff, demonstrate that the defendant’s conduct violated a 8 statutory or constitutional right and (2) whether the right at issue was “clearly established.” 9 Saucier v. Katz, 533 U.S. 194, 201 (2001). 10 Although the court was once required to answer these questions in order, the 11 United States Supreme Court has clarified that “while the sequence set forth there is often 12 appropriate, it should no longer be regarded as mandatory.” Pearson v. Callahan, 555 U.S. 223, 13 __, 129 S. Ct. 808, 818 (2009). In this regard, if a court decides that plaintiff’s allegations do not 14 make out a statutory or constitutional violation, “there is no necessity for further inquiries 15 concerning qualified immunity.” Saucier, 533 U.S. at 201. Likewise, if a court determines that 16 the right at issue was not clearly established at the time of the defendant’s alleged misconduct, 17 the court may end further inquiries concerning qualified immunity at that point without 18 determining whether the allegations in fact make out a statutory or constitutional violation. 19 Pearson, 129 S. Ct. at 818-21. 20 As discussed above, the facts alleged taken in the light most favorable to the 21 plaintiff demonstrate that defendant Lesane’s conduct violated plaintiff’s rights under the First 22 Amendment. Moreover, the state of the law in 2009, when the alleged constitutional violations 23 took place, would have given defendant Lesane fair warning that he could not retaliate against 24 plaintiff for his filing of an inmate grievance or expressing his intent to do so. As early as 1995, 25 “the prohibition against retaliatory punishment [was] clearly established law in the Ninth Circuit 26 ///// 12 1 for qualified immunity purposes.” See Pratt, 65 F.3d at 806. Accordingly, defendant Lesane’s 2 motion for summary judgment on the basis of qualified immunity should also be denied. 3 CONCLUSION 4 5 Accordingly, IT IS HEREBY RECOMMENDED that defendant Lesane’s December 14, 2010 motion for summary judgment (Doc. No. 21) be denied. 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 8 one days after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 11 shall be served and filed within seven days after service of the objections. The parties are 12 advised that failure to file objections within the specified time may waive the right to appeal the 13 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 DATED: June 16, 2011. 15 16 17 18 DAD:9 aven3482.57 19 20 21 22 23 24 25 26 13