Gordon Bullock v. S Johnson et al

Filing 68

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Percy Anderson for Motion for Summary Judgment 62 , NOTICE OF MOTION AND MOTION for Summary Judgment as to entire case 52 , Report and Recommendation (Issued) 65 . IT IS ORDERED t hat (1) Plaintiff's Motion for Summary Judgment is DENIED; (2) Defendant Johnson's Motion for Summary Judgment is DENIED; and (3) Plaintiff's claims against Defendant T. Brekke are DISMISSED without prejudice. (see order for details) (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GORDON BULLOCK,

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Plaintiff,
v.
S. JOHNSON, et al.,
Defendants.

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NO. CV 15-2070 PA (AS)

ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE

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Pursuant to 28 U.S.C. section 636, the Court has reviewed the Third
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Amended Complaint, all of the records herein, and the Second Report and
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Recommendation of a United States Magistrate Judge.

After having made

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a de novo determination of the portions of the Second Report and
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Recommendation to which Objections were directed, the Court finds that
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Defendant Johnson’s Objections to the Second Report and Recommendation
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are without merit and do not cause the Court to reconsider its decision
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to accept the Magistrate Judge’s conclusions and recommendations.
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Johnson primarily objects to the Second Report and Recommendation’s
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conclusion that there was a disputed issue of fact as to whether he
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acted with a retaliatory motive.

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Initially, Johnson asserts that Plaintiff failed to create a genuine

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issue of material fact because he relies only on his “own self-serving

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declaration.”

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self-serving, and this is properly so because the party submitting it

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would use the declaration to support his or her position.”

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Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015); Securities &

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Exch. Comm’n v. Phan, 500 F.3d 895, 909 (9th Cir. 2007).

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Report and Recommendation explained, this Court “may not disregard a

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piece of evidence at the summary judgment stage solely based on its

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self-serving nature.”

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Rather, “[t]hat an affidavit is self-serving bears on its credibility,

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not on its cognizability for purposes of establishing a genuine issue

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of material fact[,]” United States v. Shumway, 199 F.3d 1093, 1104 (9th

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Cir. 1999); Phan, 500 F.3d at 909, and “a court ruling on a motion for

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summary judgment may not engage in ‘[c]redibility determinations’ or

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‘the weighing of evidence,’ as those are functions reserved for the

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jury.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

(Id.

at

(Objections at 4-9; Dkt. No. 66).

5).

However,

“declarations

are

often

Nigro v.

As the Second

Nigro, 784 F.3d at 497; Phan, 500 F.3d at 909.

Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017) (quoting

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Johnson also complains that the Second Report and Recommendation

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“relied

almost

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submission of 602 Appeal 2732 and his placement in [administrative

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segregation]” in concluding there was a genuine issue of material fact

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as to Johnson’s retaliatory intent even though “temporal proximity

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alone is insufficient to establish retaliatory intent[.]”

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at

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acknowledges, the Second Report and Recommendation did not rely solely

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But

exclusively

as

the

on

the

“almost

proximity

exclusively”

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between

comment

Plaintiff’s

(Objections
implicitly

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on temporal proximity to conclude that Plaintiff raised a triable issue

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of material fact as to Johnson’s motive for placing Plaintiff in

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administrative

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Recommendation found that Plaintiff had presented evidence not just of

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proximity in time between protected speech and the alleged retaliation,1

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but also evidence that Johnson expressed opposition to Plaintiff’s

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speech when he sought to have Plaintiff tear up a complaint to the

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Warden and threatened Plaintiff when Plaintiff refused to do so, and

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that a jury could reasonably conclude Johnson’s stated reason for

segregation.

Instead,

the

Second

Report

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placing Plaintiff in administrative segregation was pretextual.2

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Dkt. No. 65 at 21-23).

and

(See

Such evidence is more than sufficient to create

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Plaintiff’s grievances and complaints about staff misconduct
constitute protected speech. Shepard v. Quillen, 840 F.3d 686, 689
(9th Cir. 2016); Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir.
2012).

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The Objections reiterate Johnson’s argument that 15 C.C.R. §
3335(a) required him to place Plaintiff in administrative segregation
because Plaintiff’s 2732 Appeal included the phrase “possibility [of]
death” by staff. (Objections at 6-7). At the time of the events in
issue, Section 3335(a) provided:
When an inmate’s presence in an institution’s general inmate
population presents an immediate threat to the safety of the
inmate or others, endangers institution security or
jeopardizes the integrity of an investigation of an alleged
serious misconduct or criminal activity, the inmate shall be
immediately removed from general population and be placed in
administrative segregation.

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15 C.C.R. § 3335(a) (2014).
However, as the Second Report and
Recommendation explained, a fair reading of the 2732 Appeal does not
suggest that Plaintiff’s presence in the general inmate population
presented a threat to Plaintiff or the institution. Rather, Plaintiff
was complaining about his work and cell assignments being detrimental
to his health, which are issues that could have been remedied without
Plaintiff’s removal from the general prison population.
A jury
therefore could reasonably conclude that Johnson’s reliance on Section
3335(a) was pretextual. See Shepard, 840 F.3d at 689-90.
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a genuine issue of material fact as to whether Johnson acted with

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retaliatory intent in placing Plaintiff in administrative segregation.

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Shepard v. Quillen, 840 F.3d 686, 690 (9th Cir. 2016); see also

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McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d 870, 882 (9th Cir.

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2011) (Absent direct evidence of a retaliatory motive, “[t]o survive

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summary judgment, [Plaintiff] was required to present circumstantial

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evidence of motive, which usually includes: ‘(1) proximity in time

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between protected speech and the alleged retaliation; (2) [that] the

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[defendant] expressed opposition to the speech; [or] (3) other evidence

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that the reasons proffered by the [defendant] for the adverse . . .

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action were false and pretextual.’” (quoting Allen v. Iranon, 283 F.3d

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1070, 1077 (9th Cir. 2002))); Slice v. Ferriter, 448 F. App’x 725, 727

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(9th Cir. 2011) (“Evidence of pretextual justification for adverse

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action is circumstantial evidence of retaliatory intent, and therefore

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creates a genuine issue of material fact precluding summary judgment.”

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(citation omitted)).

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Johnson’s remaining objections are without merit and do not warrant
further discussion.

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No party challenges the denial of Plaintiff’s summary judgment

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motion or the dismissal of this action against Defendant T. Brekke

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without prejudice.3

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On October 1, 2018, Plaintiff filed a response to Defendant
Johnson’s objections to the Second Report and Recommendation,
reiterating the arguments raised in his opposition to Defendant
Johnson’s motion for summary judgment. (Dkt. No. 67).
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IT IS ORDERED that (1) Plaintiff’s Motion for Summary Judgment is

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DENIED; (2) Defendant Johnson’s Motion for Summary Judgment is DENIED;

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and (3) Plaintiff’s claims against Defendant T. Brekke are DISMISSED

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without prejudice.

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IT IS FURTHER ORDERED that the Clerk serve copies of this Order on
Plaintiff at his current address of record.

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DATED: October 3, 2018

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PERCY ANDERSON
UNITED STATES DISTRICT JUDGE

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