Gray v. Doe et al, No. 3:2008cv01147 - Document 145 (S.D. Cal. 2012)
Court Description: ORDER Denying 118 Motion for Summary Judgment. Signed by Judge Jeffrey T. Miller on 4/12/2012. (All non-registered users served via U.S. Mail Service)(knb)
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Gray v. Doe et al Doc. 145 1 JM 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 ORDER DENYING MOTION FOR SUMMARY JUDGMENT Plaintiff, 10 11 Case No. 8-cv-1147-JM-WVG GREGORY LEE GRAY, vs. Docket No. 118 ROBERT HERNANDEZ et al., 12 Defendants. 13 In June 2008, Plaintiff Gregory Lee Gray filed a complaint under 42 U.S.C. § 1983 14 15 against Defendants Sterling, Peterson, and Marrero arising from events that occurred at R.J. 16 Donovan Correctional Facility. Several of the claims have been dismissed, and Defendants now 17 move for summary judgment on Plaintiff’s First Amendment retaliation claim. For the reasons 18 stated below, the motion is DENIED.1 19 I. BACKGROUND Plaintiff’s first amended complaint (“FAC”) alleges that in January 2007, Plaintiff 20 21 filed a small claims suit against Defendant Marrero, Captain of Facility 3 Yard, and Defendants 22 Sterling and Peterson, employees of the prison library (the “librarians”). Thereafter, Plaintiff 23 24 1 25 While the Magistrate Judge filed a thorough report and recommendation recommending the motion be granted, the court declines to accept its conclusion. 1 Dockets.Justia.com 1 made a written settlement offer to the librarians informing them that they had been sued for 2 $1,666.20 for denying Plaintiff access to the law library. The offer stated that Plaintiff was 3 “willing to Settle if you pay me the sum of $200 dollars, and ‘no’ Restitution is taken out of my 4 Account.” Defendants claim that they interpreted this as an extortion attempt and that they 5 feared for their safety, so they filed Rules Violation Reports (“RVRs”) against Plaintiff. Plaintiff 6 was charged with extortion and placed in Administrative Segregation (“Ad Seg”) by Defendant 7 Marrero on June 18, 2007. He was found not guilty of the extortion charge, and then released 8 from Ad Seg on August 22, 2007. Plaintiff was transferred to Mule Creek State Prison in 9 October 2007, and shortly thereafter was transferred to High Desert State Prison. Based on his 10 punishments, Plaintiff filed this lawsuit stating several causes of action. Defendants now move 11 for summary judgment on Plaintiff’s First Amendment retaliation claim, the only cause of action 12 that has survived Defendants’ motions to dismiss. 13 II. LEGAL STANDARD AND DISCUSSION 14 A. Summary Judgment Standard 15 When a party moves for summary judgment under Fed. R. Civ. P. 56(b), the motion 16 should only be granted if “under the governing law, there can be but one reasonable conclusion 17 as to the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court should 18 look to “whether the evidence presents a sufficient disagreement to require submission to a jury 19 or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. 20 “Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a 21 summary judgment motion may properly be made in reliance solely on the pleadings, 22 depositions, answers to interrogatories, and admissions on file.” Celotex Corp. v. Catrett, 477 23 U.S. 317, 323 (1986). “To rebut the motion for summary judgment successfully, the plaintiffs 24 must point to some facts in the record that demonstrate a genuine issue of material fact and, with 25 2 1 all reasonable inferences made in the plaintiff’s favor, could convince a reasonable jury to find 2 for the plaintiffs.” Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000). At summary judgment, generally “a nonmoving party plaintiff has no obligation to 3 4 produce anything until the moving party defendant has carried its initial burden of production.” 5 Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1107 (9th Cir. 6 2000). In many cases, the moving party has not sufficiently demonstrated the lack of a triable 7 issue, so no defense is required. Id. at 1105 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 8 161 (1970)). However, the moving party may also succeed by showing that the nonmoving party 9 does not have sufficient evidence to carry the ultimate burden of persuasion at trial. Nissan at 10 1106. 11 B. Retaliation Claim 12 1. The Five-Factor Rhodes Test 13 The parties agree that district courts must analyze five elements when addressing a First 14 Amendment retaliation claim, as explained in Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 15 2005). The Rhodes court stated that 16 19 [w]ithin 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. 20 In McCollum v. Cal. Dept. of Corrections & Rehabilitation, 647 F.3d 870, 882 (9th Cir. 17 18 21 2011), the court explained that “[t]o raise a triable issue as to motive, [a plaintiff seeking to 22 defeat summary judgment on a retaliation claim] must offer either direct evidence of retaliatory 23 motive or at least one of three general types of circumstantial evidence.” (internal quotation 24 marks omitted). Circumstantial evidence of motive most often includes: (1) proximity in time 25 between the speech and the retaliation; (2) “that the defendant expressed opposition to the 3 1 speech;” or (3) other evidence calling into doubt the reasons defendants provide for taking the 2 adverse action. Id. 3 a. Adverse Action 4 Defendants argue that their actions cannot constitute adverse action because they were 5 merely complying with the law. However, they cite no law in support of their theory that good 6 faith punishments cannot be adverse actions. The Ninth Circuit has explained that even a threat 7 of retaliation can be an adverse action, since it could have a chilling effect on speech. Brodheim 8 v. Vry, 584 F.3d 1262, 1270 (9th Cir. 2009). See also Hearn v. Arpaio, 2007 WL 1381616 at *4 9 (D. Ariz. 2007) (unreported case) (finding that placement in administrative segregation was 10 adverse action even though it was in furtherance of a legitimate correctional goal). 11 b. Because of the Prisoner’s Protected Conduct/Advancement of Legitimate Correctional Goal 12 Defendants claim that the “uncontroverted evidence” demonstrates that the librarians 13 filed the RVRs because of a perceived rules violation rather than because of any retaliatory 14 motive. Similarly, Defendant Marrero states that he was required to place Plaintiff in Ad Seg 15 because of the charges against him. Defendants urge that “[w]hen an obvious alternative 16 explanation for conduct is offered, the Court should adopt that explanation in place of a mere 17 inference of retaliation.” Def. SJ Mtn. at 6 (citing Cafasso, U.S. ex rel. v. General Dynamics C4 18 Systems, Inc., 637 F.3d 1047, 1056 (9th Cir. 2011). 19 While Defendants have shown that the law compels filing of an RVR after a rules 20 violation and that the inmate should be placed in Ad Seg if he presents a security threat, the 21 existence of those rules does not establish Defendants’ contention that they believed the 22 settlement offer was a rules violation and created a security threat. Indeed, at the summary 23 judgment stage the court cannot say that the letter Plaintiff wrote would “obviously” cause the 24 librarians to feel concerned for their safety and file RVRs that persuaded Defendant Marrero to 25 place Plaintiff in Ad Seg for over two months. Certainly retaliatory motive has not been 4 1 established, but it is for the trier of fact to determine whether such adverse action was motivated 2 by Plaintiff’s protected conduct. As noted previously, Defendants also contend that Plaintiff cannot avoid summary 3 4 judgment since their declarations as to their motive are “uncontroverted.” It is true here—as it is 5 with many legal claims that turn on an actor’s motive— 6 that Plaintiff has not presented direct evidence tending to establish that Defendants took 7 disciplinary action with a retaliatory motive. However, Defendants ignore Ninth Circuit law 8 establishing that circumstantial evidence can create an inference sufficient to defeat a motion for 9 summary judgment. McCollum, 647 F.3d at 882. Generally, plaintiffs in a retaliation suit can point to proximity in time as 10 11 circumstantial evidence of retaliatory motive. This case differs from the typical suit because the 12 punishment was admittedly the result of action related to Plaintiff’s protected First Amendment 13 activity. Due to this fact, some inference of retaliatory motive is already present. Thus, while 14 proximity of time could be used as circumstantial evidence here, it need not be relied upon in 15 order to raise the required inference. Furthermore, Defendants’ lack of support for their claims 16 of fearfulness could lead a factfinder to reasonably conclude that such alternative explanations 17 are pretextual.2 In sum, while it is true that Plaintiff has put forth no direct evidence to controvert 18 19 Defendants’ declarations, the circumstantial evidence is strong enough to create a reasonable 20 disagreement as to whether Plaintiff’s punishment was the result of retaliatory motives. 21 22 23 24 25 2 The analysis in this section also applies the final Rhodes factor, which examines whether Defendants acted in an effort to advance a legitimate correctional goal. While institutional security is a legitimate correctional goal, Morrison v. Hall, 261 F.3d 896, 907 (9th Cir. 2001), the parties dispute whether Plaintiff’s punishment was a genuine attempt to advance that goal. 5 1 2 c. Chilling Effect Defendants argue that Plaintiff’s punishment caused no chilling effect, asserting that 3 his small claims suit was dismissed because of a failure to appear rather than because of any 4 punishment. However, the court is not to look to the success of an individual case in order to 5 determine whether a chilling effect existed. Instead, it must assess “whether an official’s acts 6 would chill or silence a person of ordinary firmness from future First Amendment activities.” 7 Rhodes, 408 F.3d at 568 (emphasis in original) (citations omitted). Thus, while confinement in 8 Ad Seg may not prevent a prisoner from engaging in protected conduct, its punitive nature 9 clearly could create a chilling effect. See Hines v. Gomez, 108 F.3d 265, 269 (finding that ten 10 day confinement and television loss was sufficient for retaliation claim). While it is true that 11 Plaintiff has once again failed to present direct evidence of a chilling effect, Defendants’ 12 arguments concerning Plaintiff’s ability to file the small claims suit do not address the proper 13 standard—they focus on Plaintiff’s actual filing of the lawsuit and its subsequent dismissal rather 14 than the question of whether two months of Ad Seg would discourage an ordinary person from 15 exercising his First Amendment rights. Therefore, Defendants’ motion fails to sufficiently 16 demonstrate the lack of a triable issue of fact, and Plaintiff need not present evidence in order to 17 survive summary judgment. See Nissan Fire, 210 F.3d at 1105 (explaining that if a moving party 18 fails to negate essential element of claim, nonmoving party is not required to present evidence in 19 support of opposition). 20 2. Intent to Harm 21 Defendants also tack on a very short separate argument summarily asserting that in 22 order to succeed, Plaintiff must “show that [Defendants] acted intentionally to harm him.” Def. 23 SJ Mtn. at 10 (citing County of Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998); Toguchi v. 24 Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)). Defendants’ objective in making this argument is 25 unclear. In any event, they have failed to establish that if the court finds under Rhodes that 6 1 Defendants have taken an adverse action because of Plaintiff’s protected conduct, Plaintiff must 2 make an additional showing of intentional harm. To the extent that it is possible that Defendants 3 negligently or recklessly punished Plaintiff because of his engagement in protected conduct, the 4 court finds that there is a triable issue of fact as to whether their actions intentionally caused 5 harm. 6 3. Qualified Immunity 7 Alternatively, Defendants argue that they are protected by qualified immunity. In 8 determining whether qualified immunity is available, the court should first decide whether a 9 constitutional right has been violated, and next look to whether the right was clearly established. 10 Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007). The answer to the second inquiry depends 11 on whether a reasonable official in Defendants’ situation would understand that his actions 12 would violate a constitutional right. Id. The Ninth Circuit has held that prisoners cannot legally 13 be punished for exercise of their right to engage in federal civil rights litigation, and that “the 14 prohibition against retaliatory punishment is ‘clearly established law’ . . . for qualified immunity 15 purposes.” Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (citations omitted). 16 As discussed above, Plaintiff’s First Amendment right has been violated if his 17 allegations are true. Defendants argue that even if a constitutional violation has been established, 18 qualified immunity nevertheless protects them because “Plaintiff has not shown under the 19 specific facts of this case that he had a ‘clearly established’ right to avoid the actions that were 20 taken in compliance with prison regulations, even if the charges against him were later found to 21 be mistaken.” Def. SJ Mtn. at 11. Further, Defendants argue that Plaintiff has not shown that 22 “he had a ‘clearly established’ right to expect Defendants not to comply with their required 23 duties under the applicable law and regulations.” Id. This argument fails because it assumes that 24 Defendants’ declarations as to motive can be automatically taken as true. If that were the case, 25 summary judgment would be appropriate under Rhodes and the qualified immunity inquiry 7 1 would be unnecessary. Instead, there is a factual dispute over whether Plaintiff was punished 2 based on a rules violation or in retaliation for his small claims suit. 3 Defendants correctly state that there is no clearly established right to avoid legitimate 4 punishment. However, the question is whether, assuming that the constitutional right has been 5 violated, it would have been clear to a reasonable prison official that his conduct was unlawful at 6 the time it occurred. Defendants have once again failed to make any argument corresponding to 7 the proper standard: whether it would have been clear to a reasonable prison official that 8 punishment motivated by retaliation for filing the lawsuit would be unlawful. Here, it would 9 have been clear to Defendants that punishing Plaintiff in retaliation for filing his small claims 10 lawsuit would violate the law. See Pratt, 65 F.3d at 806. 11 III. CONCLUSION 12 Defendants have not successfully established the absence of a genuine issue of 13 material fact as to whether Plaintiff’s punishment was motivated by retaliatory motive. 14 Similarly, Defendants cannot establish qualified immunity at the summary judgment stage—if 15 the facts occurred as alleged in the complaint, Defendants’ actions clearly violated a 16 constitutional right. The motion for summary judgment is DENIED. 17 18 IT IS SO ORDERED. Dated: April 12, 2012 19 ______________________________ _______ ______ ____ __________ ________ ____ ____ ______ Jeffr Je frey Miller iller Jeffrey T. Miller United es United States District Judge 20 21 22 23 24 25 8
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