Leos v. Rasey et al

Filing 127

ORDER ADOPTING FINDINGS AND RECOMMENDATION on Defendants' Motion for Summary Judgment 88 , 120 , signed by Chief Judge Lawrence J. O'Neill on 3/19/2018: 21-Day Deadline; and The matter is referred back to the magistrate judge. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES LEOS,

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Case No. 1:14-cv-02029-LJO-JLT (PC)
Plaintiff,

v.

ORDER ADOPTING FINDINGS
AND RECOMMENDATION ON
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

RASEY, et al.,
(Docs. 88, 120)

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Defendants.
TWENTY-ONE (21) DAY DEADLINE

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Plaintiff, James Leos, is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action under 42 U.S.C. § 1983. This matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On January 31, 2018, the Magistrate Judge filed a Findings and Recommendations to

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grant in part and deny in part Defendants’ motion for summary judgment, which was served on

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the parties and notified the parties that objections were to be filed within twenty-one days. (Doc.

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120.) Defendants and Plaintiff filed objections. (Docs. 125, 126.)

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In their objections, Defendants contend that the F&R “is silent as to whether Plaintiff was

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engaged in protected conduct under the First Amendment.” (Doc. 125, p. 2.) Defendants argue

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that Plaintiff is required to prove that he engaged in protected conduct, “such as submitting proper

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prison grievances.” (Doc. 125, pp. 5-6.) Defendants contend that Plaintiff’s inmate grievance

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No. SATF-E-13-01320, does not qualify as protected conduct under the First Amendment

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because it was part of an effort by Plaintiff to avoid working in the E-Facility kitchen. (Id.)

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Defendants contend that Plaintiff was less than forthcoming about his injuries with Defendant
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Stonestreet who was investigating grievance 01320. (Id.) As such, Defendants argue grievance

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01320 does not qualify as protected conduct by Plaintiff. (Id.) The only authority Defendants

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cite in support of this proposition is a 10-year-old case from the Eleventh Circuit, Smith v.

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Mosley, 532 F.3d 1270, 1277 (11th Cir. 2008). Defendants do not cite any cases from any courts

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within the Ninth Circuit agreeing with their argument, and the Court finds none.1 This Court is

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not persuaded to set a precedent of finding that an inmate’s prison grievance is not protected

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conduct under the First Amendment merely because officials contend the inmate’s assertions

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within it are less than truthful.
Further, Defendants’ argument that “the Magistrate Judge did not address whether

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Plaintiff was, in fact, engaged in protected conduct that was adversely affected by Defendant

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Rasey’s alleged retaliation,” (Doc. 125, 5:15-17), is a tortured misinterpretation on three

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accounts. First, a retaliation claim under the First Amendment does not require a showing that

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the defendant’s retaliatory action adversely affected the inmate’s protected conduct. Rather, the

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correct elements of a retaliation claim are that an inmate engaged in protected conduct which was

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the animus for the defendant’s adverse, non-penological actions. See Rhodes v. Robinson, 408

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F.3d 559, 568 (9th Cir. 2005). Second, the entire analysis contained within the F&R was

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premised on the fact that Defendant Stonestreet initiated RVR E-13-05-030 against Plaintiff as a

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result of investigating grievance 01320, which Plaintiff filed against the two defendants in this

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case. The filing of an inmate grievance is protected conduct. Rhodes v. Robinson, 408 F.3d 559,

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568 (9th Cir. 2005).

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Third, while Defendants now assert that the premise for their motion was that grievance

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01320 was not a “proper inmate grievance” to qualify as protected conduct because, they contend

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Plaintiff submitted it as part of “a concerted effort to avoid working in the E-Facility kitchen”

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(Doc. 125, 6:17-21), this argument was not raised in their motion. While Defendants’ motion

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contained a section titled: “Plaintiff Was Not Engaged in Protected Conduct,” it was hardly a

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foundational premise as that section comprised a mere ten lines out of a nineteen page

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Though this Court found a few California district courts that have cited Smith v. Mosley, they did not do so in
support of the premise Defendants assert here.

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memorandum of points and authorities. (Doc. 88-2, 22:11-22.) Further, that small section of the

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P&A, which began by acknowledging that Plaintiff alleged RVR E-13-05-030 issued against him

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because of his grievance 01320, did not attack it as “improper” basis for a retaliation claim. (Id.)

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Rather, in that section of the P&A, Defendants argued that it was Plaintiff’s conduct of repeatedly

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trying “to get away from his job assignment in the dining hall,” not Plaintiff’s use of SATF’s

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grievance system (including grievance 01320), that led to RVR E-13-05-030. (Id.) Regardless of

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whether Defendants’ raised it in their motion, for the reasons previously mentioned, it is the

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finding of this Court that grievance 01320 qualified as protected conduct for Plaintiff’s retaliation

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claim. Finally, this Court concurs with the inferences construed in the F&R in Plaintiff’s favor as

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the nonmoving party, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657

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F.3d 936, 942 (9th Cir. 2011), cert. denied, 132 S.Ct. 1566 (2012), and declines to revisit the

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evidence as Defendants desire.

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Plaintiff’s objections, largely echoing his opposition to Defendants’ motion, fail to show

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that he had medical restrictions which were ignored by Defendant Rasey on February 22, 2013 to

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show she was deliberately indifferent to Plaintiff’s serious medical need. The evidence presented

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clearly showed that Plaintiff was cleared for full food-handling work assignment, without

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restrictions, on February 22, 2013, when he reported to the E-Facility for work. (Doc. 120, p. 7.)

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Thus, Defendant Rasey was not deliberately indifferent to Plaintiff’s medical condition when she

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required him to work that day -- with or without modification of his job tasks. Farmer v.

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Brennan, 511 U.S. 825, 837 (1994); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir.1994) (The

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Eighth Amendment does not apply where prisoners have been required to work unless they are

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compelled to perform physical labor beyond their physical limitations.) Correctional staff is not

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deliberately indifferent when they require an inmate to perform job duties which have been

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cleared for and assigned based on their medical conditions. Further, Defendants were not

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deliberately indifferent for requiring Plaintiff to attend and perform his assigned job duties any

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day that he did not have a medical lay-in, or other restriction issued by a medical provider.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a
de novo review of this case. Having carefully reviewed the entire file, the Court finds the
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Findings and Recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:

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1.

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the Findings and Recommendations, filed on January 31, 2018, are adopted in
full;

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2.

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Defendants’ motion for summary judgment (Doc. 88) is GRANTED IN
PART and DENIED IN PART as follows:

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a.

summary judgment on Plaintiff’s deliberate indifference claim

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under the Eighth Amendment against Defendants Stonestreet and

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Rasey is GRANTED;

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b.

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summary judgment on Plaintiff’s retaliation claim against
Defendant Stonestreet is GRANTED; and

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c.

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summary judgment on Plaintiff’s retaliation claim under the First
Amendment against Rasey is DENIED;

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3.

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Defendant Stonestreet and all claims against him are DISMISSED from this
action;

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4.

The parties SHALL file statements within twenty-one days of the date of

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service of this order whether a settlement conference would be beneficial

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before trial is scheduled; and

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5.

The matter is referred back to the magistrate judge.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

March 19, 2018

UNITED STATES CHIEF DISTRICT JUDGE
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