(PC) Dixon v. LaRosa, et al, No. 2:2010cv01441 - Document 120 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 02/18/14 recommending that defendant's motion for summary judgment 108 be granted. MOTION for SUMMARY JUDGMENT 108 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL STEVEN DIXON, 12 Plaintiff, 13 14 No. 2:10-cv-1441 TLN KJN P v. FINDINGS AND RECOMMENDATIONS S. LaROSA, 15 Defendant. 16 17 Introduction Plaintiff is a state prisoner proceeding without counsel. The sole issue remaining in this 18 19 civil rights action is whether defendant LaRosa s September 16, 2009 search of plaintiff s cell 20 was performed in retaliation for plaintiff s August 23, 2009 grievance regarding double-celling. 1 21 Defendant s motion for summary judgment is now before the court. Plaintiff filed an opposition; 22 no reply was filed. As set forth more fully below, the undersigned recommends that defendant s 23 motion for summary judgment be granted. 24 //// 25 //// 26 1 27 28 By order filed December 23, 2011, defendants motion to dismiss was granted as to all claims and all defendants, with the exception of the instant claim. (ECF No. 85 at 1.) Thus, the court disregards plaintiff s arguments and declarations concerning subsequent building and cell moves. 1 1 Defendant s Motion for Summary Judgment 2 Defendant LaRosa moves for summary judgment on the grounds that it is undisputed that 3 defendant did not violate plaintiff s First Amendment rights, and that defendant is entitled to 4 qualified immunity. 5 A. Legal Standard for Summary Judgment 6 Summary judgment is appropriate when it is demonstrated that the standard set forth in 7 Federal Rule of Civil procedure 56 is met. “The court shall grant summary judgment if the 8 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 9 judgment as a matter of law.” Fed. R. Civ. P. 56(a).2 10 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. 11 12 13 14 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 15 56(c)). “Where the nonmoving party bears the burden of proof at trial, the moving party need 16 only prove that there is an absence of evidence to support the non-moving party s case.” Nursing 17 Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 18 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory 19 committee s notes to 2010 amendments (recognizing that “a party who does not have the trial 20 burden of production may rely on a showing that a party who does have the trial burden cannot 21 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment 22 should be entered, after adequate time for discovery and upon motion, against a party who fails to 23 make a showing sufficient to establish the existence of an element essential to that party s case, 24 and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. 25 “[A] complete failure of proof concerning an essential element of the nonmoving party s case 26 necessarily renders all other facts immaterial.” Id. at 323. 27 2 28 Federal Rule of Civil Procedure 56 was revised and rearranged effective December 10, 2010. However, as stated in the Advisory Committee Notes to the 2010 Amendments to Rule 56, “[t]he standard for granting summary judgment remains unchanged.” 2 1 Consequently, if the moving party meets its initial responsibility, the burden then shifts to 2 the opposing party to establish that a genuine issue as to any material fact actually exists. See 3 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 4 establish the existence of such a factual dispute, the opposing party may not rely upon the 5 allegations or denials of its pleadings, but is required to tender evidence of specific facts in the 6 form of affidavits, and/or admissible discovery material in support of its contention that such a 7 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party 8 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 9 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 10 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass n, 809 F.2d 626, 630 (9th Cir. 11 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return 12 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 13 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 14 1564, 1575 (9th Cir. 1990). 15 In the endeavor to establish the existence of a factual dispute, the opposing party need not 16 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 17 dispute be shown to require a jury or judge to resolve the parties differing versions of the truth at 18 trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to „pierce 19 the pleadings and to assess the proof in order to see whether there is a genuine need for trial. ” 20 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee s note on 1963 21 amendments). 22 In resolving a summary judgment motion, the court examines the pleadings, depositions, 23 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. 24 Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 25 255. All reasonable inferences that may be drawn from the facts placed before the court must be 26 drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences 27 are not drawn out of the air, and it is the opposing party s obligation to produce a factual 28 predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. 3 1 Supp. 1224, 1244-45 (E.D. Cal. 1985), aff d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 2 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 3 some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could 4 not lead a rational trier of fact to find for the nonmoving party, there is no „genuine issue for 5 trial. ” Matsushita, 475 U.S. at 586 (citation omitted). 6 By contemporaneous notice provided on July 3, 2013 (ECF No. 108-1), plaintiff was 7 advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal 8 Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); 9 Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). 10 B. Facts 11 For purposes of the instant motion for summary judgment, the court finds the following 12 facts undisputed, unless otherwise noted: 13 14 1. At all relevant times, plaintiff was in the custody of the State of California, and housed at Mule Creek State Prison (“MCSP”), in Building 1. 15 2. Officers Irwin and Grzebyk were the two Floor Officers working in Building 1 during 16 the 6:00 a.m. to 2:00 p.m. shift, and Officers LaRosa and Keenan were the two Floor Officers 17 working in Building 1 during the 2:00 p.m. to 10:00 p.m. shift. 18 19 3. On August 17, 2009, Plaintiff complained to Officer Irwin that he was not compatible with his cell partner, because his cell partner was keeping a pet rodent in the cell. 20 21 4. On August 17, 2009, Officer Grzebyk conducted a cell search and removed the rodent from the cell. 5. Plaintiff s cellmate was unhappy once the rodent was confiscated, and became angry 22 23 with plaintiff once the cellmate realized that during the cell search his television switch had been 24 damaged and his property confiscated. (ECF No. 112-1 at 17.) 25 6. Plaintiff prepared a CDC Form 602 inmate grievance, reiterating the events of August 26 17, 2009. (ECF No. 112-1 at 15). In the action requested portion of the form, plaintiff wrote: 27 //// 28 //// 4 1 4 Per Penal Code § 2709, all MCSP prison officials follow all CDCR [“California Department of Corrections and Rehabilitation”] directives, policies and procedures governing double-celling and integrated inmate housing. Issue an updated memorandum consiste[nt] with these stated policies and procedures, listed herein. NOT retaliate against this writer in any way, e.g., not changing his cell. 5 (ECF No. 112-1 at 15.) This grievance was assigned Log Number MCSP 09-1626. 2 3 6 7. On August 23, 2009, plaintiff submitted Log No. MCSP 09-1626, to the MCSP 7 Appeals Office, by dropping it into the mailbox in the Housing Unit. The grievances in the 8 mailbox are processed to the addressed location within the prison. 9 10 11 8. The content of the grievance Log No. 09-1626 that plaintiff filed on August 23, 2009, contains no reference to defendant LaRosa, or any action by defendant LaRosa. 9. On August 27, 2009, the grievance was received by the Appeals Coordinator and 12 rejected for filing at that time because the Appeals Coordinator deemed the grievance lacked 13 supporting paperwork that was necessary for the grievance to be processed. The Appeals 14 Coordinator sent plaintiff a letter requesting plaintiff attach additional paperwork. 15 10. On August 28, 2009, plaintiff submitted an inmate request for interview stating that 16 “[t]his 602 is about staff s failure to follow procedures dealing with double-celling, and my 17 request that a memorandum be issued to alleviate the non-compliance.” (ECF No. 108-3 at 32; 18 112-1 at 31.) On August 28, 2009, plaintiff responded to the Appeals Coordinator, complaining 19 that the requested paperwork was not necessary or available, and resubmitting the appeal and 20 asking that the appeal be processed without it. 21 11. On September 1, 2009, the Appeals Coordinator again sent plaintiff a letter rejecting 22 the grievance, this time because plaintiff had not submitted the grievance to the correctional staff 23 directly involved for an informal level of review. 24 25 26 27 12. Plaintiff next submitted the grievance to Correctional Officer Irwin. On September 7, 2009, Officer Irwin responded as follows: I C/O Irwin spoke to you on 9-7-09 for clarification on your appeal. You stated you want to see the procedures on integrated housing. DOM Chapter 5 Article 47 on Jan. 2008 54055.7 Inmates are to be housed in first available bed per housing code. 28 5 1 (ECF No. 112-1 at 15.)3 13. On September 7, 2009, after plaintiff received Officer Irwin s response, plaintiff 2 3 again submitted his grievance to the appeals office at MCSP, indicating that he was dissatisfied 4 with the informal response that Officer Irwin provided. Plaintiff s grievance was received by the 5 Appeals Office on September 8, 2009, for a first formal level of review. 6 7 14. The grievance plaintiff submitted on September 7, 2009, and was received by the Appeals Office on September 8, 2009, again contained no reference to defendant LaRosa. 8 9 15. At the first formal level of review, the grievance was assigned to Sergeant J. Dominguez, who interviewed plaintiff for the appeal on September 29, 2009, and provided 10 plaintiff a response, authorized by the Associate Warden, on October 6, 2009.4 (ECF No. 108-3 11 at 16, 23-24; 112-1 at 19-20.) 12 13 16. On October 10, 2009, plaintiff resubmitted Log No. 09-01626 for review at the second level. (ECF No. 112-1 at 16.) Plaintiff stated: 14 The 9-29-09 response does not address the August, 009 DOM Supplement, Section 54055 which states inmates are responsible for participating in decisions effecting his housing. Also, see attach[ed] declaration detailing the retaliatory methods used against me by Building One correctional officers. 15 16 17 (ECF No. 112-1 at 16.) In the declaration, plaintiff alleged that officers in building 1 were using 18 cell searches and unwarranted cell moves to punish and harass plaintiff. (ECF No. 112-1 at 23.) 19 Plaintiff noted that he had filed a 602 against defendant LaRosa and other officers on September 20 18, 2009, and complained that defendant LaRosa had targeted plaintiff with an “arbitrary and 21 excessive” cell search on September 16, 2009, in retaliation for plaintiff filing grievance No. 09- 22 01626, as evidenced by defendant having plaintiff s property card, searching plaintiff s cell too 23 frequently, and taking property not normally confiscated from an inmate s cell. (ECF No. 112-1 24 at 24-25.) 25 3 26 27 28 Plaintiff argues that Officer Irwin s response failed to address the other policies and procedures impacting double-celling procedures that were listed in the appeal. (ECF No. 112-1 at 6.) 4 Plaintiff appears to dispute fact 15, but provided no facts or argument to support such dispute. (ECF No. 112-1 at 3, 6.) 6 1 2 3 4 5 6 7 17. Defendant LaRosa conducted a search of the cell occupied by plaintiff on September 16, 2009. 18. On September 16, 2009, defendant LaRosa had plaintiff s personal property card from MCSP Receiving and Release during the search of plaintiff s cell. (ECF No. 112 at 12.) 19. Second and Third Watch Floor Officers in each building are required to search a minimum of three cells per shift. (ECF No. 108-3 at 8; 112-1 at 94.) 20. On September 16, 2009, defendant LaRosa confiscated items, including expired 8 medications, excess items, cleaning supplies, and a plastic bucket, from plaintiff s cell during a 9 cell search. 10 21. After the cell search, plaintiff submitted a separate grievance, Log. No. MCSP 09- 11 02012, on September 18, 2009. In this grievance, entitled “Cell Trashed During Improperly 12 Frequent Cell Search,” plaintiff complained that defendant LaRosa s September 16, 2009 cell 13 search was done in order to retaliate against plaintiff for filing Log No. 09-01626 about the cell 14 assignment procedures. 15 22. On September 22, 2009, Sergeant Gamez provided plaintiff an informal level 16 response to Log No. 09-02012, explaining that he had interviewed Officer LaRosa to ask about 17 the September 16, 2009 cell search, and Sgt. Gamez determined that LaRosa had not retaliated 18 against plaintiff for filing Log. No. 09-01626, because LaRosa was not aware of the housing 19 assignment grievance. 20 23. In submitting Log No. 09-2012 for the next level of review, plaintiff claimed that 21 Officer LaRosa must have known that plaintiff had filed Log No. 09-01626, because the 22 correctional staff must have discussed the grievance during shift change. He further claimed the 23 thoroughness of the search was evidence of a retaliatory intent. 24 C. Standards 25 In the prison context, a First Amendment retaliation claim has “five basic elements: (1) 26 An assertion that a state actor took some adverse action against an inmate (2) because of (3) that 27 prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First 28 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 7 1 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Filing an inmate grievance is 2 “protected conduct” for purposes of a retaliation claim. See Hines v. Gomez, 108 F.3d 265, 267- 3 68 (9th Cir. 1997). Direct and tangible harm will support a First Amendment retaliation claim 4 even without demonstration of a chilling effect on the further exercise of a prisoner s First 5 Amendment rights. Rhodes 408 F.3d at 568, n.11. A warning or a threat implying adverse 6 consequences for engaging in protected conduct may be sufficient to constitute “adverse action.” 7 Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009). 8 9 In addition, plaintiff has the burden of showing that retaliation for the exercise of protected conduct was the “substantial” or “motivating” factor behind the defendant's actions. 10 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Hines, 108 F.3d at 11 267-68 (9th Cir. 1997) (inferring retaliatory motive from circumstantial evidence). Retaliatory 12 motive may be shown by the timing of the allegedly retaliatory act and inconsistency with 13 previous actions, as well as direct evidence. Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 14 2003); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) . 15 16 17 D. Analysis Adverse Action & Protected Conduct There is no dispute that defendant searched plaintiff s cell on September 16, 2009, so the 18 first element of plaintiff s retaliation claim, an adverse action, has been met. It is also “well 19 established that among the rights they retain, prisoners have a First Amendment right to file 20 prison grievances,” and that “[r]etaliation against prisoners for their exercise of this right is itself 21 a constitutional violation, and prohibited as a matter of „clearly established law. ” Brodheim, 584 22 F.3d at 1269 (citations omitted); see also Bruce, 351 F.3d at 1288; Rhodes, 408 F.3d at 567. 23 Therefore, the third element of plaintiff's retaliation claim, that the prisoner's conduct allegedly 24 causing the retaliation claim was “protected,” has also been met. Rhodes, 408 F.3d at 567. 25 26 Retaliatory Motive With regard to the second element, defendant has provided non-retaliatory reasons for 27 why the search was conducted. Defendant declares that his search of plaintiff s cell was one of 28 the routine cell searches required in his job as floor officer, and that the items removed from 8 1 plaintiff s cell were all contraband that inmates are not authorized to possess. (ECF No. 108-3 at 2 8, 10.) Defendant declares that the search was conducted in accordance with institutional 3 regulations for the purpose of monitoring inmate cells and keeping the institution free of 4 contraband, and that it was not done to target or harass plaintiff, or for any other improper 5 purpose. (ECF No. 108-3 at 10.) Defendant also declares that the first time he became aware of 6 plaintiff s grievance Log No. 09-01626 was when Sgt. Gamez interviewed defendant regarding 7 plaintiff s complaint that defendant had conducted the September 16, 2009 cell search in order to 8 retaliate against plaintiff for the cell assignment grievance. (ECF No. 108-3 at 8.) Defendant 9 declares that because grievance Log No. 09-01626 did not make a complaint about him, 10 defendant LaRosa “was not informed of the grievance, and had no reason to be involved in it.” 11 (ECF No. 108-3 at 8.) 12 No declarations were provided by Officers Irwin and Grzebyk. 13 However, plaintiff provided circumstantial evidence in support of his claim that the search 14 was conducted as retaliation for his prison grievance. 15 In his declaration, plaintiff states he has served over 28 years in state prison, and contends 16 that he is “an expert on serving time and gauging situations with above average success.” (ECF 17 No. 4 at 18.) Plaintiff claims that “just as inmates share information with each other about 18 officers being fair or unfair, correctional officers do share information among themselves to get a 19 profile on all inmates, [and] information that assists officers in performing their duties.” (ECF 20 No. 4 at 18.) Plaintiff contends that the fact that defendant possessed plaintiff s property card during 21 22 the search of plaintiff s cell, and that his cell was searched twice in less than a week, 23 demonstrates that the cell search was planned and not random, thus raising an inference that the 24 search was retaliatory. (ECF No. 108-3 at 56.)5 Plaintiff declares that defendant LaRosa s cell search was “arbitrary and an excessive 25 26 27 28 reaction to [plaintiff s] 602 inmate appeal, which did not serve any legitimate penological safety 5 The court refers to the copy provided by defendant because plaintiff s copy cuts off pertinent portions. (ECF No. 4 at 73.) 9 1 and security concerns, particularly since [plaintiff has] been disciplinary free since 1992.” (ECF 2 No. 108-3 at 56.) Plaintiff declares that on or about September 7, 2009, during his interview with 3 Officer Irwin, Officer Grzebyk, the officer who removed the rodent, intervened and “openly 4 asked [plaintiff] to drop the 8/23/09 602,” and that Officer Irwin “would accommodate [plaintiff] 5 in getting any cell [he] wanted as long as [he] gave Officer Irwin advanced notice.” (ECF No. 12 6 at 8; 108-3 at 56.) Plaintiff appears to argue that the efforts by Officers Irwin and Grzebyk to 7 persuade plaintiff to drop his double-celling grievance support his theory that either one or both 8 officers told defendant LaRosa about the double-celling grievance prior to or on September 16, 9 2009. (ECF No. 112 at 7.) 10 Inmate Joseph Viruegas provided a declaration stating that on September 16, 2009, he saw 11 plaintiff s cell after he and plaintiff returned from chow and noted that “they trashed [plaintiff s] 12 cell.” (ECF No. 4 at 77.) In a second declaration, inmate Viruegas confirmed that he was 13 interviewed by Sgt. Gamez in connection with plaintiff s grievance concerning the September 14 16, 2009 cell search, and “explained to him that the cell was thrashed and items were scattered 15 around the cell as if a hurricane had hit the place.” (ECF No. 4 at 78.) 16 In addition, plaintiff provided cell search receipts for fourteen searches of plaintiff s cell 17 from August 9, 2009, to August 29, 2010. In nine of the searches, nothing was confiscated by the 18 searching officer. (ECF No. 112-1 at 72-85.) Multiple items were confiscated in four of the cell 19 searches; however, 4 and 5 items were taken in two of the searches (ECF No. 112-1 at 79, 83). In 20 the August 17 2009 search in which the rodent was removed, 8 items were removed. (ECF No. 21 112-1 at 73.) But in the cell search at issue on September 16, 2009, at least 18 items were 22 removed. (ECF No. 112-1 at 75.) Plaintiff provided declarations from four other inmates who 23 reviewed the cell search receipt and declared that each had never had so many items confiscated 24 during a cell search, and “that it looked like the officer was angry with Mr. Dixon.” (ECF No. 25 112-1 at 99, 101, 103, 105.) 26 Moreover, plaintiff disputes that the cleaning supplies and bucket were contraband. In his 27 verified amended complaint, plaintiff states that he had the very same items when both defendant 28 LaRosa and Officer Keenan searched his cell on August 8, 2009, and September 10, 2009, 10 1 respectively. (ECF No. 12 at 9.) Plaintiff argues that the inmate prison canteen is stocked with 2 washing powder and liquid detergents. (ECF No. 112-1 at 7.) In addition, at MCSP hand soaps, 3 cleansing powder, i.e. Ajax, scrubbing pads, rags, plastic buckets, and small hand brooms were 4 provided to inmates. (ECF No. 112-1 at 7.) Plaintiff counters that plastic containers are not a 5 safety and security issue because many items sold to inmates in the canteen and through various 6 approved vendors supply quarterly packages to inmates in plastic containers, including plastic 7 storage containers. (ECF No. 112-1 at 7.) Moreover, plaintiff provided a copy of § 54030.19 of 8 the CDCR Operations Manual that describes property restrictions, and liquid soap and clear 9 storage containers are allowed. (ECF No. 112-1 at 111, 113.) 10 Plaintiff also provided declarations from five other inmates who declare that while at 11 MCSP, they were allowed to keep in their cells cleaning supplies such as cleanser, disinfectant, 12 soap, cleaning rags, and green scrub pads, which were usually distributed weekly by inmate 13 porters or tier tenders assigned as building workers. (ECF No. 112-1 at 98, 100, 102, 104, 106.) 14 Each inmate declares that because inmates were permitted to stock cleaning detergents and soap 15 in their cells, they were also permitted to keep 3-5 gallon white buckets “to wash our state and 16 personal clothing. Most inmates possessed their own buckets.” (Id.) These buckets would be 17 confiscated on the “rare occasion a building officer discovered that the inmate had abused the 18 privilege by using his bucket for making „pruno (wine).” (Id.) Each inmate declares that to their 19 knowledge, these buckets were never used to manufacture weapons. (Id.) 20 It can be difficult to establish the motives or intent of a defendant; thus, plaintiff may rely 21 on circumstantial evidence. Hines, 108 F.3d at 267-68. Retaliatory motive may be shown by the 22 timing of the allegedly retaliatory act and inconsistency with previous actions, as well as direct 23 evidence. Bruce, 351 F.3d at 1288-89; Pratt, 65 F.3d at 808. Although a retaliatory motive may 24 be inferred from the timing and nature of the alleged retaliatory activities, a mere allegation of a 25 retaliatory motive is insufficient to defeat a motion for summary judgment, see Taylor v. List, 880 26 F.2d 1040, 1045-46 (9th Cir. 1989) (finding conclusory allegations insufficient to establish that 27 any individual prison official acted in retaliation for protected conduct). The prisoner must 28 submit evidence to establish a link between the exercise of constitutional rights and the allegedly 11 1 retaliatory action. Compare Pratt, 65 F.3d at 807 (finding insufficient evidence), with 2 Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989) (finding sufficient 3 evidence). In Pratt, the court focused on the timing of the alleged retaliatory actions and “most 4 importantly” on whether there was evidence that defendants were “actually aware” of plaintiff's 5 First Amendment activities. Id., 65 F.3d at 808. 6 Here, despite his evidence, plaintiff has failed to establish a causal nexus between the 7 search of his cell and the prior protected activity. In other words, plaintiff has failed to adduce 8 evidence that defendant LaRosa was actually aware of plaintiff s August 23, 2009 grievance prior 9 to the September 16, 2009 cell search. It is undisputed that defendant was not initially named in 10 the double celling grievance. None of the declarations offer testimony connecting the cell search 11 with plaintiff s double-celling grievance. Plaintiff declares that correctional officers discuss 12 inmate grievances, and suggests that Officers Irwin or Grzebyk told defendant LaRosa about 13 plaintiff s grievance during the shift change. However, plaintiff does not assert that he has 14 personal knowledge of a conversation between defendant and Officers Irwin or Grzebyk; 15 therefore, he cannot relate its substance. Without evidence demonstrating that Officers Irwin or 16 Grzebyk told defendant, or more specific factual support raising an inference that there was such 17 a communication or connection, such allegations are simply speculation. Plaintiff s reliance on 18 the general nature of communication among officers in the prison setting is insufficient to defeat 19 defendant s declaration that he was not told about plaintiff s double-celling grievance prior to the 20 September 16, 2009 cell search. Plaintiff s theory that the efforts of Officers Irwin and Grzebyk 21 to persuade plaintiff to drop the double celling grievance demonstrates that they told defendant 22 LaRosa about the grievance, or told him to search the cell in retaliation, is too attenuated to 23 demonstrate a retaliatory motive on the part of defendant LaRosa. 24 Moreover, plaintiff failed to demonstrate that a jury could infer retaliatory motive from 25 the timing of the cell search. Twenty days elapsed between the submission of plaintiff s 26 grievance on August 23, 2009, and September 16, 2009, the date defendant LaRosa searched 27 plaintiff s cell. Nine days elapsed between the date Officer Irwin spoke with plaintiff about the 28 double-celling grievance and the September 16, 2009 cell search. Plaintiff failed to explain how 12 1 the court can infer a retaliatory motive on the part of defendant LaRosa when there was no close 2 proximity in time between these events, and no evidence suggesting he was aware of the 3 protected conduct. In Bruce, the Ninth Circuit found Bruce had established a triable issue of fact 4 where the timing of his gang validation was suspect because it came “soon after his success in the 5 prison conditions grievances.” Id., 351 F.3d at 1288. In Uribe v. McKesson, 2011 WL 9640 6 (E.D. Cal. Jan. 3, 2011), all the conduct at issue took place on one day, between 3:00 p.m. and 7 7:00 p.m. In Williams v. Williams, 2012 WL 1094351 (N.D. Cal. March 29, 2012), the alleged 8 retaliatory conduct took place four days after the protected conduct. Here, the court finds nothing 9 suspect about the timing to warrant an inference as to retaliatory motive. Plaintiff argues that the “excessive” cell search “is consistent with defendant being aware 10 11 of” plaintiff s grievance Log No. 09-01626. (ECF No. 112-1 at 8.) However, an allegedly 12 “excessive” cell search, standing alone, fails to demonstrate defendant was aware of the protected 13 conduct. Aside from plaintiff s speculation that other officers told defendant about the grievance, 14 there is no evidence from which a jury can infer that defendant s cell search was motivated by the 15 August 23, 2009 grievance. Absent a connection or link between defendant and the August 23, 16 2009 grievance, one allegedly excessive cell search, standing alone, is insufficient. Viewing the evidence in plaintiff s favor, and assuming defendant LaRosa was angry, 17 18 planned to search plaintiff s cell on September 16, 2009, and took plaintiff s bucket and cleaning 19 supplies when inmates are normally allowed to retain them at MCSP, no reasonable jury could 20 find that such search was connected to or motivated by plaintiff s double-celling grievance. 21 Importantly, none of the statements plaintiff attributes to defendant LaRosa relate to plaintiff 22 filing grievances. (ECF No. 108-3 at 54.) 6 None of plaintiff s evidence connects defendant 23 6 24 25 26 27 28 In grievance Log No. 09-02012, plaintiff references a confrontation with defendant LaRosa on August 17, 2009, about a week prior to the filing of grievance Log No. 09-01626. (ECF No. 1083 at 54.) Plaintiff recounted the following exchange between him and defendant LaRosa: In fact, regarding the 8/17/09 cell search: upon returning from work and discovering that my cell had been searched, I respectfully asked C/O LaRosa did he know who had searched my cell. He said, “No, I just came on.” I said, “I m only asking because it was just searched a week or so ago.” He antagonistically replied, “I can search your cell every day if I want!” I responded, “That s not what Title 15 says.” Surprisingly, in a boisterious [sic] and 13 1 LaRosa to the double-celling grievance, either directly or through reasonable inference. Plaintiff 2 did not specifically name defendant in grievance Log No. 09-01626 until October 10, 2009, after 3 the September 16, 2009 cell search. Moreover, plaintiff s grievance concerning the allegedly 4 retaliatory cell search, submitted on September 18, 2009, cannot demonstrate retaliatory motive 5 for a cell search conducted prior to the filing of such grievance. 6 Because plaintiff cannot demonstrate a genuine issue of material fact as to the second 7 element of retaliation, see Rhodes, 408 F.3d at 567-68, it is not necessary to discuss the remaining 8 elements. For the foregoing reasons, defendant is entitled to summary judgment. 9 10 D. Conclusion Based on the above, the undersigned recommends that defendant s motion for summary 11 judgment be granted. 12 Alternative Grounds 13 Because defendant is entitled to summary judgment, the court need not address 14 defendant s argument that he is entitled to qualified immunity. 15 Recommendation 16 17 Accordingly, IT IS RECOMMENDED that defendant s motion for summary judgment (ECF No. 108) be granted. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge s Findings and Recommendations.” Any response to the 23 24 25 26 belligerent tone, C/O LaRosa yelled, “I ll prove to you that I can search your cell whenever I want!” “Go to your cell!” I said, “I m trying to talk sensible and you show an attitude just because I m concerned about my cell being searched again so quickly.” He said, “Lock up!” That was the only confrontation between C/O LaRosa and myself other than him taking shelves off my cell wall several months ago. . . . 27 28 (ECF No. 108-3 at 54.) 14 1 objections shall be served and filed within fourteen days after service of the objections. The 2 parties are advised that failure to file objections within the specified time may waive the right to 3 appeal the District Court s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 Dated: February 18, 2014 5 6 /dixo1441.msj 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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