Percelle v. Pearson et al, No. 3:2012cv05343 - Document 409 (N.D. Cal. 2016)

Court Description: ORDER denying 399 Defendants' Motion for Judgment as a Matter of Law. Signed by Judge Thelton E. Henderson on 12/21/16. (tehlc1, COURT STAFF) (Filed on 12/21/2016)
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Percelle v. Pearson et al Doc. 409 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 STEVEN DALE PERCELLE, Plaintiff, 6 7 8 v. STEVEN PEARSON, et al., Case No. 12-cv-05343-TEH ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW Defendants. 9 10 United States District Court Northern District of California 11 This matter comes before the Court on a motion for judgment as a matter of law 12 brought by Defendants Steven Pearson, Derek Arredondo, Dylan Fletcher, and Mike 13 Williams (collectively, “Defendants”). For the reasons set forth below, the motion is 14 DENIED. 15 16 17 BACKGROUND Plaintiff Steven Dale Percelle is a former state prisoner who contends that he was 18 retaliated against for engaging in litigation activity protected by the First Amendment. 19 While incarcerated at the Correctional Training Facility (“CTF”) in Soledad, California, 20 Plaintiff sued the California Department of Corrections and Rehabilitation (“CDCR”) for 21 negligent medical care. In retaliation for having filed and obtained an entry of default in 22 that lawsuit, Plaintiff claims that Defendants, who were correctional officers and members 23 of the Institutional Gang Investigation task force at CTF, retaliated against him by taking 24 actions that led to his validation as a gang member and placement in administrative 25 segregation. An eight-day jury trial was held, and, at the close of evidence, Defendants 26 timely moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). 27 While the motion was under the submission, the jury returned a verdict for Plaintiff. 28 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 LEGAL STANDARD Federal Rule of Civil Procedure 50 governs motions for judgment as a matter of law. Under Rule 50(a)(1), If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. Once a party has been fully heard on an issue during a jury trial, the court may grant a motion for judgment as a matter of law against the non-moving party only if “there is no 11 United States District Court Northern District of California 10 legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” 12 Fed.R.Civ.P. 50(a); Ritchie v. United States, 451 F.3d 1019, 1022-23 (9th Cir. 2006). 13 In deciding a motion under Rule 50(a), the Court reviews all of the evidence and 14 draws all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson 15 Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The Court is not permitted to make 16 credibility determinations or weigh the evidence. Id. The salient inquiry is whether the 17 evidence “permits only one reasonable conclusion [.]” Pavao v. Pagay, 307 F.3d 915, 918 18 (9th Cir. 2002). 19 20 21 DISCUSSION Defendants claim that there is no legally sufficient evidence for a reasonable jury to 22 find for Plaintiff on his First Amendment retaliation claim. They dispute that there is 23 sufficient evidence for Plaintiff to establish that: (1) Defendants took an adverse action; (2) 24 Defendants acted because of Plaintiff’s protected conduct; (3) Defendants’ actions chilled 25 Plaintiff’s First Amendment rights; and (4) Defendants’ actions did not reasonably 26 advance a legitimate correctional goal. The Court disagrees. In light of the evidence 27 presented at trial, the Court finds that a reasonable jury could conclude that Plaintiff 28 proved all the elements of his claim and was entitled to a favorable verdict. 2 1 2 I. Adverse Action Defendants argue that there is no evidence that Defendants took any adverse actions 3 against the Plaintiff. They claim that the evidence shows that Defendants did not have the 4 authority to validate Plaintiff as a gang member. Secondly, they argue that the actions that 5 Defendants took in searching Plaintiff’s cell and preparing a validation package were 6 “insufficient” to constitute adverse actions because inmates do not have a right to be free 7 from cell searches and investigations into gang activity. Mot. at 2-3. 8 9 The Ninth Circuit has held that an action constitutes an adverse action when it “would chill or silence a person of ordinary firmness from future First Amendment activities.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). Even the mere threat 11 United States District Court Northern District of California 10 of harm can be an adverse action, because the threat itself can have a chilling effect 12 regardless of whether it is carried out. See Brodheim v. Cry, 684 F.3d 1262, 1270 (9th Cir. 13 2009). The adverse action need not be an independent constitutional violation. See Pratt v. 14 Rowland, 65 F.3d 802, 806 (9th Cir. 1995). An otherwise permitted action can be the basis 15 for a retaliation claim if performed with a retaliatory motive and lacking a legitimate 16 correctional goal. See Watison, 668 F.3d at 1115 (9th Cir. 2012) (holding that an inmate 17 had sufficiently alleged that an officer took an adverse action against him when the officer 18 filed a disciplinary charge against that inmate which led to the inmate being placed in 19 administrative segregation). 20 Here, the record contains evidence that Defendants Pearson, Williams and 21 Arredondo searched Plaintiff’s cell on November 18, 2010. Tr. 293:22. Three weeks later, 22 Officer Arredondo sent an email to a gang investigator in another institution asking for 23 information to “seal the deal” on Percelle’s validation. Ex. 113. Close to a year later and 24 after the receipt of a third source item needed for validation, Officer Pearson prepared a 25 validation packet. Ex. D. Sergeant Williams “worked closely” with Officer Pearson and 26 reviewed the validation packet. Tr. 424:15-424:2. Lieutenant Fletcher signed off on the 27 validation packet before it was sent to the Office of Correctional Safety. Tr. 558-559. 28 3 A reasonable jury could have found that any and all of these actions constitute 1 2 adverse actions because they would chill a person of ordinary firmness from continuing to 3 engage in litigation activities. Put bluntly, a person of ordinary firmness may hesitate to 4 pursue his case against CDCR when, shortly after obtaining an entry of default in that case, 5 CDCR officers search his cell and open an investigation into whether he is a gang member. 6 In the very least, these actions constitute threat of harm and are enough for a reasonable 7 jury to find that Plaintiff has proved the first element of his retaliation claim. 1 8 9 II. Retaliatory Motive Defendants next claim that there is no evidence to show that Defendants knew of 10 United States District Court Northern District of California 11 Plaintiff’s lawsuit against medical staff at CTF and thus could not have acted “because of” 12 Plaintiff’s protected activity. They also claim that there is insufficient evidence for a jury 13 to find that Defendants acted with a retaliatory motive. Defendants are incorrect. There is sufficient circumstantial evidence on the record 14 15 from which the jury could infer that Defendants knew about Plaintiff’s jailhouse lawyer 16 activities and his lawsuit against CDCR. First, Defendants admitted that when they 17 searched Plaintiff’s cell, they saw legal papers among his belongings. Tr. 439:1. Second, 18 Officer Pearson said that he reviewed Plaintiff’s Central File, which included many 19 references to Plaintiff’s pending lawsuit against CDCR. Tr. 438:10-13; Ex. 138. Third, 20 Defendants could have learned about Plaintiff’s lawsuit through the letters he received in 21 the mail from the court; Sergeant Williams explained that agents monitor the mail of 22 inmates they are investigating for gang activity. Tr. 341:9. Fourth, as Defendants 23 conceded, Plaintiff presented evidence that Deputy Attorney General Jennifer Nygaard and 24 CTF Litigation Coordinator Dan Pherigo knew of Plaintiff’s lawsuit. Tr. 539:11-541:21, 25 26 27 28 1 The jury could also have found that Defendants took individual actions knowing that the end of result of their actions would be the validation of Plaintiff as a gang member and consequent placement in more restrictive housing. Tr. 431: 18-25. See Watison, 668 F.3d at 115 (“being placed in administrative segregation constitutes an adverse action”); see also Shepard v. Quillen, 840 F.3d 686, 691 (9th Cir. 2016). 4 1 631-634. The jury could have inferred that either Ms. Nygaard or Mr. Pherigo had 2 communicated with medical professionals at CTF, who could have informed other staff, 3 including Defendants, of the substantial sum of money Plaintiff was about to recover from 4 CDCR. Plaintiff also produced sufficient circumstantial evidence of retaliatory motive in 6 the form of (a) evidence of proximity in time between Plaintiff’s litigation activities and 7 his validation by Defendants; and (b) evidence that Defendants’ stated reasons for 8 investigating Plaintiff were pretextual. Jennifer Nyaagard admitted that she found out 9 about the entry of default and discussed it with her supervisor on November 10, 2010, a 10 week before Defendants searched Plaintiff’s cell. Tr. 631: 14-25. Dan Pherigo recalled 11 United States District Court Northern District of California 5 receiving a letter from Bob Rehm, a damages expert appointed in Plaintiff’s medical care 12 case, on May 18, 2011, three months before Defendants prepared and approved Plaintiff’s 13 validation packet. Tr. 54:8-543:16. Defendants argue that suspect timing is not, in itself, sufficient evidence of 14 15 retaliatory motive. Here, there is ample other evidence from which the jury could conclude 16 that Defendants used the gang validation process as a pretext for retaliation, thus acting 17 with a retaliatory motive. Defendants admitted that they received multiple trainings on the 18 requirements for validation listed in Title 15, the Department Operations Manual (“DOM”) 19 and other gang validation manuals. Tr. 318-320; 517-520. Plaintiff’s expert witness 20 Richard Subia testified that for a debriefing report to be used as a source item for 21 validation, it needs to identify an activity that the suspect performed in furtherance of the 22 gang. Tr. 765-765. Defendants testified that there was nothing in the debriefing report that 23 indicated that Plaintiff had committed an action in furtherance of the Black Guerrilla 24 Family gang. Tr. 866-867. The jury could have inferred that Defendants knew Plaintiff was 25 not a member of the gang and decided to attempt to validate him anyway. 2 The email from 26 2 27 28 Evidence that the book “Blood in My Eye” came from the library and that Defendants knew Plaintiff did not communicate with any of the people whose names appeared in the address book serves the same purpose—to show that Defendants acted with a retaliatory motive, not of out a legitimate concern that Plaintiff was a member of a gang. Tr. 308-310. 5 1 Officer Arredondo, requesting a direct link to “seal the deal,” further serves as evidence of 2 an express intent to see Plaintiff validated as a gang member. Ex. 113. 3 4 III. Chilling Effect Defendants argue that Plaintiff failed to present any evidence that Defendants’ 5 6 actions would chill a person of ordinary firmness from future First Amendment activities. 7 They also claim there was no evidence that Plaintiff himself was deterred from pursuing 8 his medical claims as a result of Defendants’ actions. Defendants are wrong on both counts. First, Mr. Percelle testified that his litigation 9 activities were actually chilled: he had to ask the Monterey County Court to stay his 11 United States District Court Northern District of California 10 medical care case because he could not access the library as often from his placement in 12 administrative segregation. Tr. 877. Second, even if Defendants were not the ones who 13 actually validated Plaintiff and placed him in administrative segregation, the jury could 14 infer that their search of Plaintiff’s cell and the ensuing investigation were enough to chill 15 a person of ordinary firmness from continuing to pursue legal action against CDCR. 16 17 IV. Legitimate Correctional Goal 18 Defendants claim that all of the evidence presented at trial shows that they were 19 performing their job duties when they investigated Plaintiff and submitted a validation 20 packet. All of their actions, Defendants contend, were in furtherance of the correctional 21 goal of gang management. 22 In light of all the evidence presented at trial, the jury could have found that 23 Defendants used the gang validation process as a cover for retaliation. As the Ninth Circuit 24 has made clear, “a prison official who uses a validation procedure to obscure retaliation 25 ‘cannot assert that [his action] served a valid penological purpose, even though [the 26 prisoner] may have arguably ended up where he belonged.’” Shepard, 840 F.3d at 692 27 (citing Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003)). The inquiry is not whether 28 Defendants had enough evidence to validate Plaintiff once they started investigating him; 6 1 the inquiry is whether they had a retaliatory reason to investigate him in the first place. The 2 jury could have concluded that Defendants took actions that did not serve a legitimate 3 correctional goal because those actions were taken to punish or silence Mr. Percelle for his 4 protected conduct. 5 6 7 CONCLUSION For the reasons state above, the Court finds that there is sufficient evidentiary basis 8 for a jury to return a verdict in favor Plaintiff. Defendants’ motion for judgment as a matter 9 of law is hereby DENIED. 10 United States District Court Northern District of California 11 IT IS SO ORDERED. 12 13 14 Dated: 12/21/16 _____________________________________ THELTON E. HENDERSON United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7