Mitchell v. Schwartzenegger et al

Filing 169

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/4/15 RECOMMENDING that 150 MOTION for SUMMARY JUDGMENT be granted in part and denied in part, as follows: Defendants motion for summary judgment as to plaintiffs retaliation claim against defendant Garcia be granted; and Defendants motion for summary judgment be denied on all remaining claims. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN EDWARD MITCHELL,

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Plaintiff,

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No. 2:09-cv-3012 JAM KJN P

v.

FINDINGS AND RECOMMENDATIONS

J. HAVILAND, et al.,

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Defendants.

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I. Introduction
Plaintiff is a state prisoner, proceeding without counsel. Plaintiff raises Eighth and First

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Amendment claims. Defendants’ motion for summary judgment is before the court. As set forth

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more fully below, the undersigned finds that defendants’ motion for summary judgment should be

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granted in part and denied in part.

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II. Plaintiff’s Second Amended Complaint
This action is proceeding on plaintiff’s allegations that on three separate occasions

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defendant Rosario used excessive force in violation of the Eighth Amendment, and defendants

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Rosario, Garcia, and McGuire retaliated against plaintiff in violation of the First Amendment.1

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By order filed April 11, 2013, the following claims were dismissed: excessive force claim
against defendant Easterling; and retaliation claims against defendants Bickham, Cappel, Singh,
and Haviland. (ECF No. 66.)
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In his verified second amended complaint (“SAC”), plaintiff alleges that on August 5,

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2008, defendant Rosario used excessive force in taking plaintiff down during an escort. Plaintiff

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claims he suffered injuries to his left shoulder and back. (ECF No. 51 at 4, 7.) Plaintiff received

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a Rules Violation Report (“RVR”) S1-08-08-1142-R for “Resisting Staff Resulting in the Use of

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Force.” (ECF No. 54-3 at 3-6.) Plaintiff was found guilty at a disciplinary hearing, based on the

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findings that plaintiff attempted to break free from defendant Rosario’s escort by abruptly

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stopping and trying to spin away, necessitating the use of force to gain control of plaintiff.

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Plaintiff was assessed a credit forfeiture of ninety days. (Id.)

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Plaintiff alleges that he was placed in administrative segregation (“ad seg”) on August 5,

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2008, and that on August 14, 2008, he was transferred from ad seg to yard one. (ECF No. 51 at

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5.) The next day, plaintiff told a correctional sergeant that plaintiff wanted to file an excessive

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force complaint concerning the August 5, 2008 incident. On August 16, 2008, plaintiff filed an

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administrative appeal alleging an excessive use of force on August 5, 2008, Log No. CSP-S-08-

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03370. (ECF No. 38-3 at 4.)2 He was returned to ad seg on August 16, 2008. (ECF No. 51 at 5.)
On November 2, 2008,3 plaintiff was released from ad seg to yard one. On November 3,

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2008, as plaintiff exited the dining hall, past Correctional Officers Rosario, Garcia, and Freitas,

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plaintiff claims he heard defendant Rosario allegedly say, “Lock his ass up, I’ll stand over, that’s

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the muthafucker I have to go to court about.” (ECF No. 51 at 5.) Defendant Garcia allegedly

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stopped plaintiff and ordered him to a wall, and searched and handcuffed plaintiff. Defendant

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Rosario then allegedly said, “take him to medical for a 7219.” (Id.) Plaintiff alleges that

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Correctional Officer Freitas asked “what did he do?” and then went and told Lt. Bickham, who

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ordered defendant Garcia to bring plaintiff to the office. (Id.) Plaintiff alleges that he and

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defendant Rosario were questioned, and plaintiff was released to his cell, where plaintiff filed

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complaint 08-3956 on November 3, 2008. (Id.) Plaintiff asserts that defendant Rosario ordered

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Defendants provided a copy of plaintiff’s appeal CSP-S-08-3370 in connection with their
earlier motion to dismiss. (ECF No. 38-3 at 2-10.)
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Evidence now demonstrates that plaintiff was released from ad seg on October 31, 2008. (ECF
No. 150-6 at 3.)
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defendant Garcia to place plaintiff in mechanical restraints in retaliation for plaintiff’s grievance

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that Rosario had used excessive force on plaintiff. (ECF No. 51 at 8.)

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On February 16, 2009, plaintiff alleges he was called to the program office by defendant

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McGuire who was to conduct a hearing on plaintiff’s appeal, Log No. CSP-S-08-3956. (ECF No.

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51 at 6.) Plaintiff claims that during the interview, McGuire allegedly asked whether plaintiff

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wanted money; plaintiff allegedly responded that he wanted to make sure defendant Rosario no

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longer hurt anyone else, and that plaintiff would not drop the complaint. (ECF No. 51 at 6.)

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Defendant McGuire allegedly responded that plaintiff “will leave the yard before my officer

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does.” (Id.) Plaintiff claims that defendant McGuire retaliated against plaintiff by wrongfully

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confining plaintiff in ad seg because plaintiff chose not to drop a complaint against defendants

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Rosario and Garcia for their actions on November 3, 2008. (ECF No. 51 at 9.)

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After returning to his cell, plaintiff alleges that Sgt. Fowler called plaintiff back to the

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program office, where plaintiff was again asked about his appeal 08-3956. Plaintiff alleges that

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during this meeting, Sgt. Fowler allegedly reminded plaintiff that he was with plaintiff at Salinas

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Valley State Prison during all the “Green wall stuff,” and allegedly said that Fowler and

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defendant Rosario were “homeboys.” (ECF No. 51 at 6.) Plaintiff told Sgt. Fowler that he had a

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right to file a complaint and would not drop it. Plaintiff was told to return to his cell.

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Minutes after returning to his cell, plaintiff alleges Correctional Officer Stephens arrived

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and took plaintiff to ad seg. (ECF No. 51 at 6.)

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III. Defendants’ Motion for Summary Judgment

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A. Defendants’ Motion

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Defendant Rosario claims he is entitled to summary judgment on plaintiff’s excessive

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force claim because plaintiff’s injuries were de minimis, and defendant Rosario was justified in

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using physical force and used the least amount of physical force necessary to regain control of

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plaintiff.

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Defendants contend that plaintiff’s retaliation claims fail because defendants Rosario,

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Garcia, and McGuire lacked retaliatory intent. Defendants argue that searches conducted during

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the meal period are commonplace and take only a minute, and an officer may perform fifteen to
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twenty such searches within the dining hour for institutional safety and security. (ECF No. 150-1

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at 20.) Because plaintiff fails to demonstrate the November 3, 2008 search conditions were out of

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the ordinary, defendants contend that plaintiff failed to establish retaliatory intent on the part of

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defendants Rosario and Garcia. Defendants contend that the three month delay between

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plaintiff’s August 16, 2008 grievance and the alleged retaliatory act on November 3, 2008, is too

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great to establish a retaliatory motive on the part of defendants Rosario and Garcia. (ECF No.

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150-1 at 20.) Moreover, defendants contend that defendant Garcia was not involved in the prior

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use of force incident and was unaware of such incident. (ECF No. 150-1 at 21.) Because

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defendants Garcia and Rosario were not regularly assigned the same shift, defendant Garcia did

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not know Rosario very well. (Id.)

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Further, defendants contend that the six month delay between the excessive force

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complaint on August 16, 2008, and the February 16, 2009 alleged retaliatory act fails to establish

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a retaliatory motive on the part of defendant McGuire. (ECF No. 150-1 at 22.) Moreover,

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defendants point out that defendant McGuire was not transferred to CSP-SOL until January of

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2009, and was unaware of plaintiff’s excessive force allegations against defendant Rosario, and of

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any grievances plaintiff had submitted prior to the February 16, 2009 meeting. (Id.)

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Defendants also argue that defendants’ actions on November 3, 2008, and February 16,

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2009, served legitimate penological interests of promoting institutional safety and security.

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Defendants Rosario and Garcia argue that random searches of inmates exiting the dining hall are

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required, and they were required to search plaintiff before escorting him into the program office

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to confirm his housing assignment to ensure he had no weapons. Defendant McGuire argues that

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plaintiff’s placement in ad seg on February 16, 2009, served a legitimate penological interest

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because McGuire believed that plaintiff’s comments posed a safety threat to Rosario, and placing

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plaintiff in ad seg was appropriate pending further action by the facility captain and the

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classification committee. (ECF No. 150-1 at 23.)

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Finally, defendants argue they are entitled to qualified immunity because plaintiff’s

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constitutional rights were not violated, and their actions were reasonable under the circumstances.

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B. Plaintiff’s Opposition

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1. Alleged Excessive Force
In opposition,4 plaintiff argues that during the escort, when he realized he was not being

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taken to ad seg, he “non-aggressively” turned his head to locate Sgts. Durfey and Easterling to

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ask them where he was being taken, and that the escort slowed not just because plaintiff turned

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his head, but because defendant Rosario was waiting for Sgt. Easterling. Plaintiff points out that

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in the RVR, defendant Rosario did not state that plaintiff “attempted to pull away,” but stated that

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plaintiff “stopped abruptly and attempted to spin away from [defendant] Rosario’s grasp.” (ECF

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No. 161-3 at 8.) Plaintiff argues that because he was handcuffed behind his back, his actions of

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turning his head and slowing the escort did not create a dangerous situation requiring his take-

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down by defendant Rosario. In addition, plaintiff argues that had defendant Rosario simply

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pulled plaintiff to the ground, he would have landed on his buttocks rather than on his left side.

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(Id.) Plaintiff contends that because he was handcuffed behind his back, an attempt to “spin

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away” from defendant Rosario would be almost impossible because the cuffs act as a bridle

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enabling the officer to take the prisoner any way he desires.

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In addition, plaintiff argues that defendant Rosario’s declaration stating that he gave

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plaintiff “two or three verbal warnings to continue with the escort,” (ECF No. 150-3 at 3),

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conflicts with defendant Rosario’s response to plaintiff’s interrogatory number 12, in which

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defendant stated that he “had no time to issue warnings or take other measures at the time that

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Plaintiff attempted to break free from the escort,” (ECF No. 162 at 16).

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Further, plaintiff contends that his injuries were not de minimis, as evidenced by the

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progress notes from August 6, 2008, where plaintiff presented with low back pain and spasms and

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In his opposition, plaintiff again raises claims concerning what the videotapes would show.
However, the court previously addressed the videotape issues, and found that plaintiff adduced no
evidence demonstrating that a videotape of the August 5, 2008 incident ever existed, and declined
to issue sanctions for the missing videotape of the August 16, 2008 use of force interview because
plaintiff adduced no evidence that “defendants willfully or intentionally destroyed or lost the
August 16, 2008 videotape in bad faith.” (ECF No. 141 at 7-8.) In addition, the court found that
there were other methods plaintiff could use to prove the extent of his injuries. (ECF No. 141 at
8.) Thus, plaintiff’s arguments concerning “what the videotape would show” are disregarded.
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sharp pain in his left posterior shoulder, his August 15, 2008 medical report where plaintiff

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complained of low back pain from the incident, and the MRI of his lumbar spine which “indicates

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evidence of trauma.” (ECF No. 161-5 at 54, 56, 58.) On August 6, 2008, plaintiff was given an

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injection of Toradol, and prescribed oral Ibuprofen. (ECF No. 161-5 at 58-59.) Plaintiff argues

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that the left shoulder x-ray report states that “There is a calcific plaque just below the inferior

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glenoid rim consistent with changes of prior trauma or possibly arthritis,” taken in conjunction

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with plaintiff’s left shoulder abrasion sustained during the August 5, 2008 escort demonstrates

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plaintiff sustained more than de minimis injuries. (ECF No. 161-3 at 17.) Plaintiff contends that

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to this day he takes pain medications because he suffers chronic pain from “debilitating shocks

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that radiate down his back to his feet requiring him to wear a back brace, orthopedic shoes.”

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(ECF No. 161-3 at 18.) Plaintiff claims that he is not allowed to have a job assignment that

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requires him to bend repetitively, twist or lift over 20 pounds. (ECF No. 161-3 at 53

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[accommodation chrono].) Plaintiff contends that his back injury was most likely caused when

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defendant Rosario “applied pressure to the middle” of plaintiff’s back. (ECF No. 161-3 at 18.)

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Plaintiff argues that the absence of proof of minor or significant injury should not mandate

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dismissal because plaintiff contends that defendant Rosario acted out of malice with the very

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purpose of causing plaintiff harm. ECF No. 161-3 at 18, citing Hudson v. McMillian, 503 U.S. 1,

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9 (1992) (“In the excessive force context, society’s expectations are different. When prison

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officials maliciously and sadistically use force to cause harm, contemporary standards of decency

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always are violated. . . . This is true whether or not significant injury is evident.”) Plaintiff

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contends that he adduced evidence of the use of wanton, unnecessary force resulting in severe

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pain which constitutes a material dispute of fact requiring a jury to decide. (ECF No. 161-3 at

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19.)

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In response to defendants’ claim that plaintiff has no admissible evidence to support his

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claim that he suffered lasting back injuries after the August 5, 2008 incident, plaintiff states he

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cannot seek independent medical advice from a specialist or his personal physician to corroborate

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his allegations regarding his injuries. (ECF No. 161-3 at 19.) Therefore, plaintiff asks the court

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to recognize that his affidavit is “the best that can be expected at the summary judgment phase.”
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(ECF No. 161-3 at 19, quoting Norman v. Taylor, 25 F.3d 1259, 1265 (4th Cir. 1994) (Hall, J.,

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dissenting), abrogated by Wilkins v. Gaddy, 559 U.S. 34 (2010).)5

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Plaintiff argues that the second and fourth Hudson factors weigh in plaintiff’s favor

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because defendant Rosario could not have reasonably perceived plaintiff’s actions as threatening.

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(ECF No. 161-3 at 20.) Plaintiff contends that defendant Rosario never lost control of plaintiff,

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who was handcuffed behind his back. Plaintiff points out that he weighs 145 pounds and

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defendant Rosario weighed at least 250 pounds. Plaintiff claims that defendant Rosario held

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plaintiff with both hands, one between the cuffs by the chain, and the other by the arm of plaintiff,

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which plaintiff claims prevented plaintiff from turning away or moving in a direction that Rosario

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didn’t want plaintiff to go. Plaintiff contends that there was no need for defendant to slam

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plaintiff in the way he did. Plaintiff states that defendant Rosario

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yanked plaintiff into the air slamming him into the ground, and
once [plaintiff] was on the ground, still secure and in restraints,
Rosario rolled plaintiff over on his stomach and applied all 250 plus
pounds of pressure onto [plaintiff’s] spine, not because plaintiff was
still allegedly attempting to break free, but to maliciously and
sadistically inflict pain.

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(ECF No. 161-3 at 21.) Further, plaintiff contends that once he was prone on the ground, face

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down, his hands handcuffed behind his back, there was no need for defendant Rosario to apply

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pressure on plaintiff’s back with all of defendant’s weight because plaintiff was not resisting.

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Plaintiff argues that there was no need for the amount of force used, and contends that any

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perceived threat to safety of staff and inmates was not that great given that plaintiff was

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handcuffed behind his back during the entire incident.

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Moreover, plaintiff contends that there were prior opportunities for defendant Rosario to
avoid or temper the severity of the use of force by following prison regulations when plaintiff
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In Wilkins, the Court held that the core judicial inquiry when a prisoner alleges that prison
officers used excessive force against the prisoner is not whether a certain quantum of injury was
sustained, but rather whether force was applied in a good faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm. Id. “To conclude, as the District Court
did here, that the absence of ‘some arbitrary quantity of injury’ requires automatic dismissal of an
excessive force claim improperly bypasses this core inquiry.” Id., 559 U.S. at 39, citing Hudson,
503 U.S. at 9.
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initially refused the cellmate. Plaintiff argues that after plaintiff complied with Rosario’s request

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to cuff up, officers should have closed plaintiff’s cell door and issued an RVR for refusing a

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direct order rather than attempting to escort plaintiff to the new cellmate. Or, in the alternative,

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plaintiff argues that defendant Rosario could have escorted plaintiff to ad seg. Plaintiff disputes

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defendant Rosario’s new claims that he gave two or three warnings for plaintiff to “calm down”

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during the escort, and appears to contend that no warnings were given during the escort.

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2. Retaliation Claims: Defendants Rosario and Garcia
Plaintiff claims that on November 3, 2008, as plaintiff exited the dining hall, plaintiff was

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stopped, searched, and placed in restraints and escorted toward medical for a pre ad seg medical

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evaluation by defendant Garcia because defendant Rosario told Garcia to do it because Rosario

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said, “plaintiff is the muthafucker I have to go to court about.” (ECF No. 161-3 at 23.) Plaintiff

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claims defendant Rosario’s instructions were given in retaliation for the excessive force

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complaint plaintiff filed, and contends the mere threat of harm is sufficient to demonstrate

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adverse action. Plaintiff contends that the order served no legitimate penological purpose.

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Plaintiff argues that because there was no subsequent ad seg placement raises an inference that

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Rosario’s order was given with retaliatory intent. Plaintiff contends that Garcia did not order

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plaintiff to stop, frisk and handcuff plaintiff based on a belief that plaintiff was smuggling food or

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contraband or that plaintiff was in an unauthorized area, but because Garcia believed he would

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eventually have to answer to the court for his use of excessive force because plaintiff was just

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released from ad seg after the investigation had closed. (ECF No. 161-3 at 25.) Plaintiff argues

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that Rosario’s statement evidences Rosario’s retaliatory intent. (ECF No. 161-3 at 26.) Plaintiff

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contends he suffered an anxiety attack once he was returned to his cell on November 3, 2008.

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Plaintiff argues that there was no legitimate penological purpose in placing plaintiff in mechanical

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restraints on November 3, 2008, but that the action was arbitrary and unnecessary. (ECF No.

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161-3 at 27.)

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3. Retaliation Claim: Defendant McGuire
Plaintiff asserts that his retaliation claim is supported by his administrative appeal which
shows that McGuire’s statement about thinking about locking plaintiff up was made before the
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alleged threat by plaintiff against Rosario. Moreover, plaintiff notes that defendant McGuire has

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now added a claim that plaintiff allegedly stated “I’m not going to be responsible for what

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happened if Rosario stayed on the yard,” that is not documented in the administrative appeal.

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(ECF No. 161-3 at 24.) Plaintiff argues that the causal connection is demonstrated by McGuire’s

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words and the timing of the retaliatory act. Plaintiff argues that his assertion of his First

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Amendment right to file a grievance against Rosario regarding the November 3, 2008 incident

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was the reason he was placed in ad seg. Plaintiff contends that McGuire’s alleged statement that

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“this is going to stop, I am seriously thinking about locking you up,” raises an inference of

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retaliatory intent because it implied that McGuire was going to punish plaintiff because he filed a

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grievance against defendant Rosario. (ECF No. 161-3 at 26.) Further, plaintiff contends this

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inference is bolstered by McGuire’s alleged statement, “you will be leaving before my officer.”

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(Id.) In addition, plaintiff argues that defendant’s claim that he believed plaintiff posed a threat to

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Rosario is refuted by the fact that plaintiff was not immediately placed in ad seg, but, in fact, was

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not taken to ad seg until more than three hours after the interview. (ECF No. 161-3 at 26.)

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Plaintiff alleges that in addition to being placed in ad seg, he had to drop his college

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correspondence course, lost contact visits, and was unable to attend religious services. (ECF No.

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161-3 at 27.) Plaintiff contends that there was no legitimate penological purpose to his placement

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in ad seg because of McGuire’s statements to plaintiff reflecting his retaliatory intent. 6

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C. Defendants’ Reply

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In reply, defendants contend that plaintiff failed to raise a factual dispute concerning

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defendant Rosario’s use of force because plaintiff concedes that during the August 5, 2008 escort,

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he turned his head to the left and right in attempts to locate the sergeants; started walking at a

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slower pace during the escort; the escort came to a complete stop; and defendant Rosario took

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plaintiff down to the ground. (ECF No. 166 at 2.) Defendants argue that these facts demonstrate

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In plaintiff’s statement of disputed facts submitted with his opposition, plaintiff includes facts
pertinent to alleged due process violations. (ECF No. 161-1 at 3, 9-10.) However, as set forth
above, this action proceeds solely on plaintiff’s First and Eighth Amendment claims.
Specifically, plaintiff’s claims that his due process rights were violated during hearings on
plaintiff’s appeals, Log No. S1-08-0801142 and S1-08-0801142R, are not at issue in this action.
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that no dispute exists that defendant Rosario perceived plaintiff as a threat given plaintiff’s

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conduct. Defendants contend that plaintiff submitted no evidence to show that there was any

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delay or time for reflection between plaintiff’s slowing down and stopping during the escort and

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the moment defendant Rosario took plaintiff down to the ground. Defendants argue that

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defendant Rosario’s conduct was reasonable because his use of force was necessary to restore

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order, and was reasonable under a qualified immunity analysis.

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In connection with plaintiff’s retaliation claim against defendants Rosario and Garcia,

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defendants argue that even under plaintiff’s version of the November 3, 2008 incident, defendants

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are entitled to summary judgment. Defendants argue that plaintiff’s statement in his declaration

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that he “believed” Rosario said something to the effect that Plaintiff was the reason Rosario had

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to go to court does not constitute evidence. (ECF No. 166 at 2, citing ECF No. 161-4 at 21.)

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Defendants contend that plaintiff failed to adduce admissible evidence that Rosario had the

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requisite retaliatory intent, or that plaintiff suffered any adverse action as a result of Rosario’s

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conduct. Defendants point out that plaintiff conceded in his declaration that Rosario did not

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search, handcuff, or escort plaintiff to some other location. Defendants argue that plaintiff’s

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retaliation claim against defendant Garcia fails for the same reasons. Defendants contend that

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plaintiff failed to submit any evidence demonstrating that Garcia’s search was retaliatory rather

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than a random search which served a legitimate correctional purpose. Defendants argue that

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plaintiff’s deposition testimony that Garcia called plaintiff over and ordered him to submit to a

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search as plaintiff was walking towards Garcia and Rosario supports their position. Defendants

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contend that no reasonable inference exists that Garcia searched plaintiff for an improper purpose

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or that Garcia would not have searched plaintiff but for Rosario’s comment, even if it were

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admissible.

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D. Plaintiff’s Surreply

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Finally, on October 5, 2014, under the mailbox rule, Douglas v. Noelle, 567 F.3d 1103,

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1109 (9th Cir. 2009), plaintiff filed a surreply. However, there is no provision in the local rules

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for a surreply. Local Rule 230(l) provides for a moving brief, an opposition, and a reply.

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Briefing for motions in prisoner actions is final after the time for reply has expired. Defendants
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filed their reply to plaintiff’s opposition to defendants’ motion for summary judgment on

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September 22, 2014, thus closing the time for further response regarding the motion. Plaintiff

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filed his surreply without the court’s leave to do so. Accordingly, plaintiff’s surreply is

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disregarded.

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A. Legal Standard for Summary Judgment

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Summary judgment is appropriate when it is demonstrated that the standard set forth in

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Federal Rule of Civil procedure 56 is met. “The court shall grant summary judgment if the

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movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law.” Fed. R. Civ. P. 56(a).

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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.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P.

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56(c)). “Where the nonmoving party bears the burden of proof at trial, the moving party need

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only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing

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Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376,

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387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory

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committee’s notes to 2010 amendments (recognizing that “a party who does not have the trial

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burden of production may rely on a showing that a party who does have the trial burden cannot

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produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment

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should be entered, after adequate time for discovery and upon motion, against a party who fails to

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make a showing sufficient to establish the existence of an element essential to that party’s case,

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and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322.

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“[A] complete failure of proof concerning an essential element of the nonmoving party’s case

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necessarily renders all other facts immaterial.” Id. at 323.

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Consequently, if the moving party meets its initial responsibility, the burden then shifts to
the opposing party to establish that a genuine issue as to any material fact actually exists. See
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to

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establish the existence of such a factual dispute, the opposing party may not rely upon the

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allegations or denials of its pleadings, but is required to tender evidence of specific facts in the

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form of affidavits, and/or admissible discovery material in support of its contention that such a

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dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party

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must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome

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of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

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1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return

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a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436

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(9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d

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1564, 1575 (9th Cir. 1990).

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In other words, “the mere existence of some alleged factual dispute between the parties

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will not defeat an otherwise properly supported motion for summary judgment. . . .” Anderson,

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477 U.S. at 247-48. Rather, there must be no genuine dispute as to any material fact in order for

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a case to survive summary judgment. Material facts are those “that might affect the outcome of

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the suit.” Id. at 248. “Disputes over irrelevant or unnecessary facts will not preclude a grant of

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summary judgment.” T.W. Elec. Serv., 809 F.2d at 630.

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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

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trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce

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the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”

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Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963

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amendments).

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In resolving a summary judgment motion, the court examines the pleadings, depositions,

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answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R.

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Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at
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255. All reasonable inferences that may be drawn from the facts placed before the court must be

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drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences

3

are not drawn out of the air, and it is the opposing party’s obligation to produce a factual

4

predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.

5

Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to

6

demonstrate a genuine issue, the opposing party “must do more than simply show that there is

7

some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could

8

not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for

9

trial.’” Matsushita, 475 U.S. at 586 (citation omitted).

10

By contemporaneous notice provided on June 13, 2014 (ECF No. 150), plaintiff was

11

advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal

12

Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc);

13

Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

14

B. Facts7

15

1. At all relevant times, plaintiff was in the custody of the California Department of

16

Corrections and Rehabilitation (“CDCR”), and housed at California State Prison, Solano (“CSP-

17

SOL”).

18
19

2. Defendant Rosario worked as a correctional floor officer in building 4, Yard 1, for over
two years.

20

3. In November 2008, Defendant Garcia was a relief officer assigned to various locations

21

at CSP-Solano and filled in for other officers on their days off, including vacation, regular days

22

off, and sick leave.

23

4. Defendant McGuire was a Correctional Lieutenant who transferred to CSP-SOL for a

24

limited-term position in mid-January 2009. The limited-term position was set for one year;

25

however, when a permanent full-time lieutenant position at California State Prison-Sacramento

26

7

27
28

For purposes of the instant motion for summary judgment, the court finds the following facts
undisputed, unless otherwise indicated. Documents submitted as exhibits are considered to the
extent they are relevant, and despite the fact that they are not authenticated because such
documents could be admissible at trial if authenticated.
13

1

unexpectedly became available, McGuire accepted that position and transferred to Sacramento

2

approximately one and half months later, around March 2009.

3

5. CSP-Solano contains four different yards or facilities. Each yard houses approximately

4

1,200 inmates, and is enclosed in order to prevent interaction between inmates in the different

5

yards.

6
7

6. There are six buildings within each yard. Yard 1houses buildings 1-6, Yard 2 houses
buildings 7-12, and so on.

8
9

7. Building 10 is the ad seg unit. Building 9 is sometimes used as overflow for ad seg
inmates.

10
11

8. For safety purposes, supervision of each housing unit is generally conducted by two
floor officers at a time.

12

9. Gaining access to a different yard or facility is extremely difficult.

13

10. If an inmate is in an unauthorized location, Rosario’s usual custom and practice is to

14

approach the inmate with another officer, immediately search the inmate to ensure he is

15

not concealing any weapons, and escort the inmate to the program office to ascertain the

16

inmate’s housing assignment.8

17

11. Because of the dangers inherent in a prison setting, if an inmate makes remarks that

18

may be construed as a threat to the safety of another person, it is McGuire’s usual custom and

19

practice to order the temporary placement of that inmate in ad seg. McGuire does not ignore

20

remarks from an inmate that may be construed as a threat to the safety of another individual.

21

12. Immediately after ordering an inmate’s placement in ad seg., for safety and security

22

reasons, McGuire reports the incident to his supervisor and the Unit Classification Committee to

23

determine the best course of action at that point.

24
25
26
27
28

8

Plaintiff admits this fact as to the immediate search to ensure the inmate has no weapons, but
denies the fact as to the escort to the program office to ascertain the inmate’s housing assignment.
Plaintiff cites as evidence his statement that he was not escorted to the program office by Rosario
on November 3, 2008, and claims plaintiff has never been searched or escorted by Rosario on any
date or at any time. However, fact 10 addresses defendant Rosario’s usual custom and practice,
and does not address the specifics of what happened on November 3, 2008. Moreover, it is
undisputed that Garcia escorted plaintiff.
14

1

13. Once the inmate’s placement is under review by the captain and the Unit

2

Classification Committee, McGuire no longer has authority over the inmate’s housing

3

assignment.

4
5

14. During the meal period, inmates from all six buildings for the yard are released at
staggered intervals to come to the cafeteria.

6
7

15. During each meal period, a housing officer from each of the six buildings on Yard 1
provides security coverage of the dining hall area.

8

16. Security coverage for the Yard 1 cafeteria includes supervising the inmates from Yard

9

1 as they enter and exit the cafeteria, and while they congregate inside the cafeteria to eat.

10

Officers providing security coverage, check identification cards upon entry and ensure that

11

inmates do not smuggle contraband items in or out of the cafeteria.

12

17. Meal time presents a higher risk that inmates will smuggle contraband because it is a

13

time when a large number of inmates congregate together in the same area. Inmates may also

14

attempt to smuggle food out of the dining hall in order to sell or barter with other inmates.

15

18. To maintain institutional safety and security, officers must conduct random “pat

16

down,” or “clothed-body” searches of inmates as they enter and exit the dining hall during the

17

meal period.

18

19. A clothed search consists of a brief “pat down” over the top of the inmate’s clothing

19

to feel for any concealed items, such as contraband or weapons. The search takes approximately

20

one minute. Clothed body searches are routine and these types of searches are not documented.

21
22

20. Officers also conduct searches based on a reasonable suspicion of improper inmate
activity.
21. An officer providing meal time coverage can regularly conduct between fifteen and

23
24

twenty searches.
22. When Rosario and Garcia conduct a clothed search of an inmate entering or exiting

25
26

the cafeteria, they follow the rules and regulations set forth by the California Department of

27

////

28

////
15

1

Corrections. Rosario and Garcia conduct searches to maintain the safety and security of the

2

dining area.9

3
4

23. From April 21, 2007, until August 5, 2008, plaintiff was housed in building 4, Yard 1,
cell 247.

5
6

24. Plaintiff did not have a cellmate on August 5, 2008, but was cleared to be doublecelled.

7

25. Due to the arrival of inmates in Receiving and Release that needed housing, plaintiff

8

was assigned a cellmate. Defendants contend that plaintiff was scheduled to be escorted to his

9

new cell in building 2, Yard 1, on August 5, 2008, but plaintiff claims he had no prior knowledge

10

of such a scheduled escort. (ECF No. 161-2 at 3.)

11

26. On August 5, 2008, Rosario worked an overtime shift as a third watch search and

12

escort officer. While performing his duties that evening, Rosario was required to escort Plaintiff

13

from building 4 to building 2.

14

27. At approximately 8:35 p.m., Rosario and Sergeant Easterling arrived at Plaintiff’s cell

15

to escort him to his new housing assignment in building 2. Plaintiff claims Sgt. Durfey was with

16

them, and plaintiff declares that prior to the arrival of Rosario, Easterling and Durfey, plaintiff

17

told both the tower officer and the building floor officer that he would not move. (ECF No. 161-4

18

at 2.).

19
20

28. When the officers arrived to escort plaintiff to building 2, he again refused to be rehoused. He stated that he would rather go to ad seg.

21
22

29. Inmates are not permitted to choose their housing assignment, or refuse a housing
assignment.

23
24

30. Rosario placed plaintiff in handcuffs and escorted him out of building 4. Sergeant
Easterling followed behind.

25
26
27
28

9

Plaintiff disputes this fact, claiming that on November 3, 2008, Rosario and Garcia did not
follow the rules and regulations. (ECF No. 161-2 at 2.) However, the undisputed fact as written
addresses how a search is conducted, not the reasons why a particular search was conducted.
Moreover, plaintiff does not contend that the search was inappropriately conducted (ECF No.
150-2 at 9), but rather contends that the search was ordered for retaliatory reasons.
16

1

31. The specific details of what transpired during the escort are disputed. Defendants

2

contend that plaintiff became physically resistive. Plaintiff denies he became resistive, but

3

concedes that he turned his head to the left and right in attempts to locate Sgts. Durfey and

4

Easterling. (ECF No. 161-4 at 2.) In his deposition, plaintiff concedes that he turned his head to

5

look behind him, and that his pace slowed. (Pl.’s Depo. at 48-49; 49-50; 53.)

6
7

32. Plaintiff disputes defendant Rosario’s version of how plaintiff was taken to the
ground.

8
9

33. Once plaintiff was prone on the ground, Rosario placed his right knee on the middle
of plaintiff’s back.

10

34. The use of force occurred on concrete.

11

35. Officer Koelling and Sgt. Durfey responded after plaintiff was on the ground. Once

12

they arrived, Rosario helped plaintiff up from the ground. Then Officer Koelling escorted

13

plaintiff to the primary clinic for medical clearance and documentation for any injuries sustained

14

during the use of force.

15

36. The entire escort took approximately five or six minutes.10

16

37. Rosario did not have any further interaction with plaintiff that day.

17

38. Rosario did not have any encounters with plaintiff from August 5, 2008, until

18

November 3, 2008.

19

39. Plaintiff claims that he sustained injuries to his left shoulder and back.

20

40. The medical report generated immediately after the use of force incident indicates that

21

plaintiff sustained abrasions to his left shoulder and left knee with no active bleeding, but the

22

nurse noted dry blood on the knee abrasion. (ECF No. 150-6 at 13.)

23
24

41. At the clinic, plaintiff pointed out all of his alleged injuries sustained from the escort
incident, and a nurse provided treatment. The nurse cleaned plaintiff’s shoulder and put on a

25
26
27
28

10

Plaintiff claimed it was not necessary to use force because control was never lost. (ECF No.
161-2 at 4.) Plaintiff did not claim that the escort took longer than five or six minutes or indicate
how long he estimated the escort took. (Id.) In his deposition he stated that most escorts took
120 seconds, but no more than three minutes. (Pl.’s Depo. at 51.) He testified that after he was
taken down, he was on the ground for five minutes. (Pl.’s Depo. at 59.)
17

1

band-aid. The nurse also put cream and a bandage on plaintiff’s knee. The nurse examined

2

plaintiff’s back, but did not provide treatment for it. (Pl.’s Depo at 67-68.)

3

42. Defendants contend that the medical report created that day does not indicate that

4

plaintiff suffered from any serious injuries as a result of the August 5, 2008 use of force. Plaintiff

5

contends that all of the medical reports demonstrate he sustained injuries during the take down.

6
7

43. After plaintiff was examined and treated in the clinic, he was rehoused in ad seg,
pending administrative review.

8
9

44. Plaintiff was issued a RVR for “Resisting Staff Resulting in the Use of Force,” based
on the events of August 5, 2008.11

10

45. Plaintiff was found guilty of the charge at a disciplinary hearing, based on the

11

findings that plaintiff attempted to break free from Rosario’s escort by abruptly stopping and

12

spinning away from his grasp, necessitating the use of physical force to gain control of him.

13
14

46. At the time the guilty finding was issued, plaintiff was assessed a credit forfeiture of
ninety days. The RVR conviction remains valid.

15
16

47. Plaintiff disputes that it was necessary to use force to gain plaintiff’s compliance with
a lawful order.12

17

48. On August 14, 2008, plaintiff transferred from ad seg to Yard 1.

18

49. On Saturday, August 16, 2008, plaintiff informed staff that he wanted to file a

19

complaint for excessive force against Rosario for the force used during the August 5, 2008

20

incident. Plaintiff signed grievance Log No. CSP-S-08-03370 on August 16, 2008. (ECF No. 38-

21

3 at 4.)

22
23
24
25
26
27
28

11

Plaintiff contends that he was not resisting during the escort and that the use of force was not
necessary, but concedes that he turned his head from left to right and slowed the escort. The
record reflects that plaintiff was issued the RVR.
12

Defendants contend that based on the court’s prior finding that plaintiff’s excessive force claim
against defendant Easterling was dismissed as Heck-barred, it is now undisputed that it was
necessary to use force to gain plaintiff’s compliance with a lawful order. (ECF No. 150-2 at 7,
citing Heck v. Humphrey, 512 U.S. 477 (1994).) However, in Simpson v. Thomas, 528 F.3d 685
(9th Cir. 2008), the Ninth Circuit concluded that Heck is not an evidentiary bar, but a claims bar.
Simpson, 528 F.3d at 695-96, and Simpson should be permitted to tell the jury his entire story
surrounding the use of force. Id. at 696.
18

1

50. Plaintiff was then placed in ad seg pending resolution of his excessive force

2

complaint and a determination made by the Interdisciplinary Classification Committee regarding

3

Plaintiffs appropriate program and housing needs.

4
5

51. On August 18, 2008, the Committee upheld the order to retain plaintiff in ad seg
pending investigation into the allegations of excessive use of force by staff.

6
7

52. On October 31, 2008, plaintiff transferred from the ad seg building on Yard 2 to the
general population in building 6, Yard 1.

8
9

53. On Monday, November 3, 2008, Rosario was assigned to assist in providing coverage
of the Yard 1 cafeteria during the breakfast period.

10
11

54. On November 3, 2008, Garcia was assigned to provide coverage of the Yard 1
cafeteria during the breakfast hour.

12

55. Typically, after a use of force incident, the inmate receives a housing assignment on a

13

different yard. This reassignment is done to protect the integrity of any ongoing investigation and

14

to ensure the continued safety of both the inmate and officer.

15

56. After the August 5, 2008 use of force incident, plaintiff was immediately rehoused in

16

the ad seg building, which is located on Yard 2. From August 5, 2008, until November 3, 2008,

17

Rosario had no encounters with plaintiff. Rosario was not aware that plaintiff was transferred

18

from the ad seg to building 6, Yard 1 on October 31, 2008.

19

57. Defendant Rosario declares that on November 3, 2008, he noticed plaintiff exiting the

20

dining hall on Yard 1, and that because he was not aware of plaintiff’s recent transfer from Yard

21

2, Rosario believed plaintiff was in an unauthorized area. (ECF No. 150-3 at 4.) Plaintiff

22

disputes Rosario’s alleged belief. Plaintiff contends that because Rosario allegedly told Garcia

23

“Lock his ass up, I’ll stand over, that’s the muthafucker I have to go to court about,” demonstrates

24

that defendant Rosario retaliated against plaintiff for the excessive force complaint because

25

Rosario’s words resulted in his being searched and handcuffed for no legitimate penological

26

reason.

27

////

28

////
19

1

58. Defendant Rosario declares that he requested that Garcia assist him in confirming

2

plaintiff’s housing assignment in the program office.13 (ECF No. 150-3 at 5.) Plaintiff maintains

3

that defendant Rosario ordered Garcia to “take [plaintiff] to medical for a 7219,” apparently in

4

preparation for his return to ad seg. (ECF No. 161-4 at 21.)

5

59. Defendant Rosario declares that before escorting plaintiff to the program office,

6

Rosario and Garcia were required to search plaintiff for weapons or other contraband, and

7

Rosario assisted Garcia to conduct a quick clothed body search outside of the entrance/exit door

8

of the dining hall, so that they could escort plaintiff to the program office. Plaintiff contends only

9

Garcia searched and handcuffed plaintiff, and only Garcia escorted plaintiff toward medical until

10

Lt. Bickham stopped it after Officer Freitas alerted Lt. Bickham to the incident. (ECF No. 161-3

11

at 10.)

12

60. The search was completed within approximately one minute. It was performed in

13

accordance with Rosario’s and Garcia’s usual custom and practice, following the rules and

14

regulations set forth by the CDCR, and adhering to defendants’ duty to maintain the safety and

15

security of the dining area.

16

61. Garcia does not recall any interaction with plaintiff before November 3, 2008.

17

62. Plaintiff did not submit a prison grievance against Garcia before November 3, 2008.

18

63. Garcia declares that he did not regularly work in the same housing unit as Rosario,

19

did not know Rosario very well, and was not familiar with any complaints that may have been

20

submitted against Rosario by inmates.

21

64. On November 3, 2008, plaintiff filed prison grievance 08-3956 against Rosario and

22

Garcia claiming that the search and handcuffing were improper and conducted out of retaliation

23

for plaintiff's August 16, 2008 excessive force claim against Rosario. (ECF No. 150-6 at 17.)

24

////

25

////

26
27
28

13

Plaintiff disputes this fact, citing Garcia’s interrogatory response that he does not recall an
incident on November 3, 2008, involving plaintiff. (ECF No. 161-3 at 10.) However, both
plaintiff and defendant Rosario recall Garcia’s presence.
20

1

65. Plaintiff alleges that the search and handcuffing conducted on November 3, 2008, was

2

done in retaliation for the excessive force complaint that he submitted against Rosario on August

3

16, 2008, for the August 5, 2008 use of force incident.
66. The parties dispute how plaintiff arrived in McGuire’s office on February 16, 2009. 14

4
5

However, the evidence reflects that McGuire conducted an interview of plaintiff in connection

6

with plaintiff’s appeal, Log No. CSP-S-08-3956, in which plaintiff appealed the actions of

7

Rosario and Garcia on November 3, 2008, complaining about staff harassment and reprisal.

8

67. McGuire did not interact with plaintiff or know who he was before February 16,

9

2009.

10

68. At the February 16, 2009 meeting, plaintiff stated that he wanted to discuss an inmate

11

grievance regarding a search conducted by Rosario and Garcia on November 3, 2008, which is

12

the subject of grievance number SOL-05-08-3956.

13
14

69. The parties dispute whether McGuire was aware of plaintiff’s prior appeals before the
February 16, 2009 meeting.

15

70. During the meeting, plaintiff expressed his dissatisfaction with the search that Rosario

16

and Garcia conducted on November 3, 2008. Plaintiff also stated that it was his belief that the

17

search was performed in retaliation for an excessive force complaint that was submitted against

18

Rosario in August 2008.
71. The parties dispute what was specifically stated during the February 16, 2009

19
20

meeting.

21

72. The parties dispute the true motivation behind plaintiff’s placement in ad seg on

22

February 16, 2009. McGuire declares that based on plaintiff’s comments during the meeting,

23

McGuire deemed plaintiff to be a threat to the safety of Rosario, and placed plaintiff in ad seg

24

based on legitimate security concerns. Plaintiff alleges that McGuire placed him in ad seg on

25
26
27
28

14

In his declaration, McGuire declares that he met with Plaintiff at his request on February 16,
2009. However, in his response to interrogatory number 1, McGuire states that he conducted an
appeal interview with plaintiff on February 16, 2009, but did not recall whether he called plaintiff
into the program office for that interview. (ECF No. 162 at 26.) Plaintiff contends that McGuire
called plaintiff into McGuire’s office for the interview.
21

1

February 16, 2009 in retaliation for the excessive force complaint that plaintiff submitted against

2

Rosario on August 16, 2008, for the August 5, 2008 use of force incident.

3

73. McGuire had no other interactions with plaintiff.

4

74. Plaintiff did not submit a prison grievance against McGuire before February 16, 2009.

5

C. Discussion

6
7
8

1. Alleged Excessive Force
a. Legal Standards
The use of excessive force by a prison official violates the Eighth Amendment. Hudson v.

9

McMillian, 503 U.S. 1 (1992). Determining whether there has been an Eighth Amendment

10

violation turns upon “‘whether force was applied in a good faith effort to maintain or restore

11

discipline or maliciously and sadistically for the very purpose of causing harm.’” Id. at 6

12

(quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)).

13

To determine whether the use of force violates the Eighth Amendment, the court should

14

consider the “extent of injury . . ., the need for application of force, the relationship between that

15

need and the amount of force used, the threat ‘reasonably perceived by the responsible officials,’

16

and ‘any efforts made to temper the severity of a forceful response.’” Hudson, 503 U.S. at 7

17

(quoting Whitley, 475 U.S. at 321); see also LeMaire v. Maass, 12 F.3d 1444, 1454 (9th Cir.

18

1993) (considering need for application of measure or sanction complained of, relationship

19

between need and measure or sanction used, extent of any injury inflicted and extent of

20

surrounding threat to safety of staff and inmates); Spain v. Procunier, 600 F.2d 189, 195 (9th Cir.

21

1979) (guards may use force only in proportion to need in each situation).

22
23
24
25
26
27
28

b. Discussion
Defendant Rosario declares that:
Inmates are not permitted to delay or impede an escort, or otherwise
prevent an officer from carrying out his lawful duties. An inmate
that slows his pace or stops during an escort creates a dangerous
situation that could quickly escalate to violence. An escorting
officer must act quickly to regain control of the inmate. An inmate
who turns around during an escort can compromise the escorting
officer’s grip, threatening the safety and security of the officer and
others. Under these circumstances, the escorting officer must
22

1
2

regain control of the inmate before the inmate has the opportunity
to break free of the escort.

3

(ECF No. 150-3 at 3.) Defendants’ initial use of force is supported by plaintiff’s conceded

4

actions of turning his head and slowing the escort, and the subsequent RVR in which plaintiff was

5

found guilty of “Resisting Staff Resulting in the Use of Force.” (ECF No. 54-3 at 3-6.)

6

However, plaintiff and defendant Rosario present two different versions of events concerning

7

what occurred during the February 5, 2008 escort and take down. Each attested to his version of

8

events under penalty of perjury. Such disputes over what happened and why give rise to material

9

issues of fact about the force needed and, in turn, whether the force used by defendant was

10

applied in good faith to restore order or, instead, maliciously and sadistically to cause plaintiff

11

harm. Further, the undersigned is not persuaded that plaintiff has failed to show that his injuries

12

were not de minimis; rather, in addition to the two abrasions that were treated on February 5,

13

2008, the fact that plaintiff presented at medical the following day, complaining of low back and

14

shoulder pain, resulting in plaintiff receiving an injection of Tramadol for pain, supports

15

plaintiff’s claim that he was in pain after the use of force on concrete. Wilkins, 559 U.S. at 39

16

n.2, citing Oliver v. Keller, 289 F.3d 623, 628 (9th Cir.2002) (rejecting the view “that to support

17

an Eighth Amendment excessive force claim a prisoner must have suffered from the excessive

18

force a more than de minimis physical injury” (internal quotation marks omitted).

19
20
21
22

Such factual disputes preclude summary judgment for defendant Rosario on plaintiff’s
alleged excessive force claim.
c. Qualified Immunity
Defendant Rosario contends that he is entitled to qualified immunity. Government

23

officials enjoy qualified immunity from civil damages unless their conduct violates “clearly

24

established statutory or constitutional rights of which a reasonable person would have known.”

25

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In ruling upon the issue of qualified immunity,

26

one inquiry is whether, taken in the light most favorable to the party asserting the injury, the facts

27

alleged show the defendant’s conduct violated a constitutional right. Saucier v. Katz, 533 U.S.

28

194, 201 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“The judges
23

1

of the district courts and the courts of appeals should be permitted to exercise their sound

2

discretion in deciding which of the two prongs of the qualified immunity analysis should be

3

addressed first in light of the circumstances in the particular case at hand”). The other inquiry is

4

whether the right was clearly established. Saucier, 533 U.S. at 201. The inquiry “must be

5

undertaken in light of the specific context of the case, not as a broad general proposition. . . .” Id.

6

“[T]he right the official is alleged to have violated must have been ‘clearly established’ in a more

7

particularized, and hence more relevant, sense: The contours of the right must be sufficiently

8

clear that a reasonable official would understand that what he is doing violates that right.” Id. at

9

202 (citation omitted). In resolving these issues, the court must view the evidence in the light

10

most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. Martinez

11

v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). Qualified immunity protects “all but the plainly

12

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341

13

(1986).

14

Based on the disputes of material fact raised by plaintiff, defendant Rosario is not entitled

15

to qualified immunity. As to the use of force, defendant Rosario contends that he believed that it

16

was necessary to take plaintiff to the ground to control him. However, plaintiff contends that,

17

while handcuffed, he was jerked into the air and slammed on his left shoulder onto the concrete.

18

Defendant contends that plaintiff resisted the escort by turning his head, slowing down, and

19

pulling away, thus necessitating that he be taken down to the ground. However, plaintiff

20

contends that he was not resisting, and that the escort was slowed so that Sgt. Easterling could

21

catch up with the escort. Plaintiff also contends that defendant Rosario pressed his full body

22

weight into plaintiff’s spine after plaintiff was prone on the ground, handcuffed behind his back,

23

and not resisting. Plaintiff also contends that skin was torn off his knee, the abrasion on his

24

shoulder left a permanent scar, and that he sustained injuries to his neck and back. Thus, there

25

remain material facts in dispute as to whether defendant Rosario used excessive force on plaintiff.

26

Plaintiff’s rights under the Eighth Amendment rights were clearly established at the time of the

27

incident, see,e.g., Whitley, 475 U.S. at 320-21 (excessive force), and the material disputes of fact

28

preclude a finding that defendant Rosario is entitled to qualified immunity.
24

1
2
3

2. Alleged Retaliation: Defendants Rosario and Garcia
a. Legal Standards
Retaliation by a state actor for the exercise of a constitutional right is actionable under

4

§ 1983 even if the act, when taken for different reasons, would have been proper. Mt. Healthy

5

City Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84 (1977). While the Constitution does not

6

expressly refer to retaliation, it is actionable because retaliatory actions may chill the exercise of

7

constitutional rights. Perry v. Sindermann, 408 U.S. 593 (1972). Courts considering retaliation

8

claims brought by prisoners must guard against “excessive judicial involvement in day-to-day

9

prison management, which ‘often squander[s] judicial resources with little offsetting benefit to

10

anyone.’” Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (quoting Sandin v. Conner, 515

11

U.S. 472, 482 (1995)).

12

“Within the prison context, a viable claim of First Amendment retaliation entails five

13

basic elements.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). First, the prisoner

14

must show that “the retaliated-against conduct is protected. The filing of an inmate grievance is

15

protected conduct.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing Rhodes, 408

16

F.3d at 568). Second, the prisoner must show that a state actor took some adverse action against

17

the prisoner. Id. (citing Rhodes, 408 F.3d at 568). “The adverse action need not be an

18

independent constitutional violation.” Id. (citing Pratt, 65 F.3d at 806). Third, the prisoner must

19

show causation; that is, that the adverse action was taken because of the prisoner’s protected

20

conduct. Id. The timing and nature of the alleged retaliatory acts may evidence a retaliatory

21

motive. See Pratt, 65 F.3d at 808; Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314-16 (9th

22

Cir. 1989). However, mere allegations of a retaliatory motive will not defeat a summary

23

judgment motion. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994). Fourth, the

24

prisoner must show that defendants’ retaliatory actions “chilled the inmate’s exercise of his First

25

Amendment rights.” Rhodes, 408 F.3d at 567-68. A plaintiff who fails to allege a chilling effect

26

may nonetheless succeed in his claim if he presents evidence that “he suffered some other harm,”

27

Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009), that is “more than minimal,” Rhodes, 408

28

F.3d at 568 n.11. Finally, the plaintiff must present evidence that the prison authorities’
25

1

retaliatory “action did not reasonably advance a legitimate correctional goal.” Id. at 567-68. The

2

Ninth Circuit has held that “preserving institutional order, discipline, and security are legitimate

3

penological goals that, if they provide the motivation for an official act taken, will defeat a claim

4

of retaliation.” Barnett, 31 F.3d at 816; Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985).

5

When considering this final factor, courts should “afford appropriate deference and flexibility to

6

prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged

7

to be retaliatory.” Pratt, 65 F.3d at 807 (quoting Sandin, 515 U.S. at 482).

8

Thus, to obtain summary judgment on plaintiff’s retaliation claim, “Defendants have the

9

burden to demonstrate that there are no genuine issues of fact supported by evidence as to at least

10

one of the essential elements of a retaliation claim and, as a result, plaintiff cannot prevail on the

11

claim.” Fields v. Velasco, 2012 WL 3628862, at *3 (E.D. Cal. Aug. 21, 2012) (citing Celotex,

12

477 U.S. at 323). Here, defendants do not contest that plaintiff’s earlier conduct was protected.

13

(ECF No. 150-1 at 20-22.) Rather, defendants focus on their position that plaintiff cannot

14

demonstrate retaliatory intent, and that the search and handcuffing served legitimate correctional

15

penological interests.

16
17

b. Discussion
Here, “the burden is on plaintiff to demonstrate that legitimate correctional purposes did

18

not motivate the actions by prison officials about which he complains.” Pratt, 65 F.3d at 806.

19

Defendants argue that the search and handcuffing served legitimate penological interests because

20

inmates are subject to random searches upon exiting the dining hall, and defendant Rosario’s

21

actions were motivated by his belief that plaintiff was in an unauthorized area of the prison.

22

However, because “prison officials may not defeat a retaliation claim on summary

23

judgment simply by articulating a general justification for a neutral process when there is a

24

genuine issue of material fact as to whether the action was taken in retaliation for the exercise of a

25

constitutional right,” the court must examine whether evidence of a retaliatory motive exists.

26

Bruce, 351 F.3d at 1289 (citations omitted).

27
28

Thus, defendants’ contention that defendants were authorized to search plaintiff because
he was exiting the dining hall is insufficient to defeat summary judgment because it is simply a
26

1

general justification for the search. Indeed, defendant Rosario claims the search occurred because

2

he believed plaintiff was not authorized to be in that area, not because plaintiff had just exited the

3

dining hall. Defendants argue that because plaintiff alleges no facts demonstrating that the

4

conditions of his search on November 3, 2008, were anything out of the ordinary, he cannot

5

establish retaliatory intent. (ECF No. 160-1 at 20.) However, in light of Bruce, as well as the

6

material disputes of fact discussed below, such argument is unavailing.

7

To show causation, plaintiff must show that his “protected conduct” was the “substantial

8

or motivating factor” behind the search. Sorrano’s, 874 F.2d 1310. Therefore, at the summary

9

judgment stage, plaintiff need only “put forth evidence of retaliatory motive, that taken in the

10

light most favorable to him, presents a genuine issue of material fact as to intent.” Brodheim, 584

11

F.3d at 1271 (citing Bruce, 351 F.3d at 1289). In reviewing the causal connection between

12

defendant Rosario’s actions and plaintiff’s protected activity, the court is to draw all reasonable

13

inferences in plaintiff’s favor. “However, a causal connection will not be inferred from one

14

statement, but from the cumulative circumstances.” Fields, 2012 WL 3628862, at *5 (citing

15

Curtis v. Buckley, 2011 WL 2551369 (E.D. Cal. June 27, 2011)). To determine defendants’

16

motivation, “the Court looks to Defendant’s knowledge of the protected activity, Defendant’s

17

conduct and statements, proximity in time between the protected activity and the adverse action,

18

and the nature of the action.” Fields, at *5 (citing Soranno’s, 874 F.2d at 1316).

19

Here, it is undisputed that the use of force incident occurred 90 days prior to the

20

November 3, 2008 incident, so there is no proximity in time between the protected activity and

21

the adverse action. However, defendant Rosario was the correctional officer who used force on

22

plaintiff in the August 5, 2008 incident. In addition, the record reflects that defendant Rosario

23

signed the RVR resulting from the August 5, 2008 use of force on August 19, 2008, three days

24

after plaintiff signed his appeal on August 16, 2008, claiming that Rosario used excessive force.

25

(ECF Nos. 150-6 at 7; 38-3 at 4.) This raises an inference that defendant Rosario was aware of

26

the excessive force appeal at the time the search was ordered.

27

////

28

////
27

1

Moreover, plaintiff adduced evidence that defendant Rosario told Garcia, “Lock his

2

[plaintiff’s] ass up . . . that’s the muthafucker I have to go to court about.” (ECF No. 161-4 at

3

21.) In their reply, defendants argue that in plaintiff’s declaration, he asserted that he “believed”

4

Rosario said something to the effect that plaintiff was the reason Rosario had to go to court, and

5

that plaintiff’s “belief” does not constitute evidence. (ECF No. 166 at 2, citing ECF No. 161-4 at

6

21.) However, reading plaintiff’s entire sentence in context suggests that plaintiff’s “belief”

7

describes the timing of the statement, not his “belief” that the statement was heard:

8

3. As I headed towards my housing unit walking past C/O Rosario
I heard the following:

9
10
11

D. Rosario: “Lock his ass up,” he stepped back towards the dirt
track and said, “I’ll stand over here.” C/O Garcia grabbed me and I
believe I heard at this point Rosario say, “that’s the muthafucker I
have to go to court about.”

12

(ECF No. 161-4 at 21.) Moreover, in his deposition, plaintiff testified that Rosario made all of

13

the above statements. (Pl.’s Depo. at 88-89.)

14

Such statements, taken as true, raise an inference that defendant was aware of plaintiff’s

15

excessive force appeal and acted with retaliatory intent. By contrast, defendant Rosario claims he

16

believed that plaintiff was in an unauthorized part of the prison. However, it is undisputed that

17

gaining access to a different yard or facility is extremely difficult. Thus, there is a dispute of fact

18

as to defendant’s motive in ordering the search of plaintiff. Moreover, there is also a dispute of

19

fact as to whether defendant Rosario intended plaintiff to be escorted to medical prior to

20

rehousing in ad seg (plaintiff’s position) or whether plaintiff was to be escorted to the program

21

office for his housing to be confirmed (defendant’s position). Defendant Garcia does not recall

22

the events of November 3, 2008, and the parties provided no other percipient witness declarations

23

as to the events of November 3, 2008. Because there is conflicting evidence relevant to these

24

cumulative circumstances, summary judgment on plaintiff’s retaliation claim against defendant

25

Rosario is not appropriate.

26

Turning to plaintiff’s retaliation claim against defendant Garcia, such claim fails because

27

plaintiff did not adduce evidence as to defendant Garcia’s retaliatory intent. In his deposition,

28

plaintiff stated that during the escort away from where plaintiff was searched and handcuffed,
28

1

Garcia told plaintiff: “I [Garcia] don’t know nothing about it. I’m just doing what he [Rosario]

2

told me to do.” (Pl.’s Depo. at 90-91.) Indeed, in plaintiff’s grievance, 08-03956, plaintiff stated

3

that defendant Garcia “seemed confused.” (ECF No. 150-6 at 17.) It is undisputed that defendant

4

Garcia was a relief correctional officer who filled in for officers on their days off, and that

5

defendant Garcia did not know defendant Rosario very well, and did not regularly work with

6

Rosario in the same housing unit. Plaintiff adduced no evidence demonstrating that defendant

7

Garcia was aware of plaintiff’s excessive force complaint against defendant Rosario, and plaintiff

8

alleges no statements attributable to defendant Garcia that would raise an inference of retaliatory

9

intent. As set forth above, the timing of the grievance, standing alone, is too attenuated to provide

10

a retaliatory motive for defendant Rosario, let alone defendant Garcia, who declares he is not

11

familiar with any complaints that may have been submitted against Rosario. Accordingly,

12

defendant Garcia is entitled to summary judgment on plaintiff’s retaliation claim.

13
14

c. Qualified Immunity: Defendant Rosario
Because defendant Garcia is entitled to summary judgment, the undersigned addresses

15

only defendant Rosario’s request for qualified immunity. Generally, “government officials enjoy

16

qualified immunity from civil damages unless their conduct violates ‘clearly established statutory

17

or constitutional rights of which a reasonable person would have known.’” Jeffers v. Gomez, 267

18

F.3d 896, 910 (9th Cir.2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As set

19

forth above, the two-part test under Saucier, 533 U.S. at 201, is employed to determine whether a

20

government officer is entitled to qualified immunity: (1) whether the facts alleged, when viewed

21

in the light most favorable to plaintiff, show the officer’s conduct violated a constitutional right;

22

and (2) whether the right is “clearly established.” Id. Summary judgment based on qualified

23

immunity is appropriate if the law did not put the officer on notice that his conduct would be

24

clearly unlawful. Id. at 202. Courts may use their discretion in deciding which of the two prongs

25

to apply first, and defendants are entitled to qualified immunity if either prong is satisfied.

26

Pearson, 555 U.S. at 249.

27
28

Here, there is a genuine issue of material fact as to whether defendant Rosario had a
retaliatory motive when he ordered plaintiff searched and handcuffed on November 3, 2008.
29

1

Thus, when viewed in the light most favorable to plaintiff, the facts show that defendant Rosario

2

violated plaintiff’s First Amendment rights. See Saucier, 533 U.S. at 201. “The prohibition

3

against retaliatory punishment is ‘clearly established law’ in the Ninth Circuit, for qualified

4

immunity purposes.” Bruce, 351 F.3d at 1290 (quoting Pratt, 65 F.3d at 806). Accordingly,

5

defendant Rosario is not entitled to qualified immunity.

6
7
8
9

3. Alleged Retaliation: Defendant McGuire
a. Legal Standards
As set forth above, prisoners have a First Amendment right to file prison grievances and
pursue civil rights litigation in the courts. Rhodes, 408 F.3d at 567 (internal quotations and

10

citations omitted). Purely retaliatory actions against a prisoner for exercising these rights

11

necessarily undermine the protections of the First Amendment; therefore, such retaliatory actions

12

violate the Constitution and are cognizable claims under § 1983. Id. In the prison context, a

13

viable claim of First Amendment retaliation entails: (1) an assertion that a state actor took some

14

adverse action against a prisoner (2) because of (3) that prisoner’s protected conduct, and that

15

such action (4) chilled the prisoner’s exercise of his First Amendment rights, and (5) the action

16

did not reasonably advance a legitimate correctional goal. Id.

17
18

b. Discussion
Defendants contend that the six month delay between the excessive force complaint on

19

August 16, 2008, and the February 16, 2009 alleged retaliatory act fails to establish a retaliatory

20

motive on the part of defendant McGuire. (ECF No. 150-1 at 22.) However, defendant McGuire

21

concedes that he learned of the excessive force appeal during the February 16, 2009 interview,

22

and that plaintiff expressed his dissatisfaction with the search conducted by Rosario and Garcia

23

on November 3, 2008. Moreover, in the second level appeal response to SOL 09-00684, Warden

24

Haviland stated that McGuire had staff complaint log CSP-S-08-3956 during the February 16,

25

2009 interview because “Lt. McGuire had been assigned as the Second Level appeal reviewer and

26

was properly acting as a designee and on behalf of the Warden.” (ECF No. 38-10 at 17.) These

27

allegations raise an inference that at least by February 16, 2009, defendant McGuire was aware of

28

plaintiff’s claims contained in appeal 08-3956, which included plaintiff’s claim that the actions on
30

1

November 3, 2008, were taken in “harassment or reprisal” for plaintiff’s prior complaint against

2

defendant Rosario. (ECF No. 150-6 at 18.) Thus, there is a proximity in time, because defendant

3

McGuire learned of both appeals during the February 16, 2009 interview, and admittedly reported

4

the alleged threat made by plaintiff shortly thereafter.

5

However, while “timing can be properly considered as circumstantial evidence of

6

retaliatory intent,” there generally must be something more than timing alone to support an

7

inference of retaliatory intent. Pratt, 65 F.3d at 808. Retaliation is not established simply by

8

showing adverse activity by defendant after protected speech; plaintiff must show a nexus

9

between the two. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (a retaliation

10

claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, i.e., “after this, therefore

11

because of this”).

12

Here, there are disputes of fact as to what was said by McGuire and plaintiff during the

13

February 16, 2009 interview. In his declaration, plaintiff claims that during the February 16,

14

2009 interview, McGuire said: “You are here about a complaint against officer Rosario for

15

harassment, you wrote him [Rosario] up for excessive force?” (ECF No. 161-4 at 10.) When

16

plaintiff affirmatively responded, plaintiff contends McGuire said “it is not uncommon to suffer

17

injuries during a takedown.” (ECF No. 161-4 at 10.) Plaintiff claims he responded that the

18

complaint was dealt with and he didn’t think they should talk about it. Plaintiff then states that

19

McGuire responded by stating “I talk about whatever I want, this is going to stop, I am seriously

20

thinking about locking you up!” “What do you want from this, money?” (Id.) Plaintiff

21

responded, “I want him to stop hurting people, I have a right to file a complaint if I feel I’ve been

22

done wrong.” (Id.) Toward the end of the interview, plaintiff claims defendant McGuire stated

23

“my job is to protect the interest of my officer, you will be leaving before my officer.” Plaintiff

24

was dismissed back to the yard and returned to his cell, but about five minutes later he was called

25

back to the program office where Sgt. Fowler questioned him about his appeals. (Id.) Plaintiff’s

26

statements track those he made in his February 23, 2009 administrative appeal, Log No. CSP-S-

27

09-00684. (ECF No. 38-10 at 4-6.)

28

////
31

1

On the other hand, defendant McGuire declares that when he asked plaintiff what he

2

wanted to achieve through the grievance process, plaintiff “stated that he wanted Rosario

3

punished and removed from his job as a correctional officer so that he could no longer hurt

4

anyone.” (ECF No. 150-5 at 4.) McGuire further declares that after he informed plaintiff that

5

McGuire did not have authority to change an officer’s job assignment, plaintiff stated, “he was

6

not going to be responsible for what happened if Officer Rosario stayed on the yard.” (ECF No.

7

150-5 at 4.) Further, defendant McGuire declares that based on plaintiff’s comments during the

8

meeting, he

9

deemed them to be a threat to the safety of Officer Rosario.
Because [McGuire] felt that Officer Rosario’s personal safety
would be at risk if he continued to work on the same yard where
Mitchell was housed, [McGuire] concluded [his] meeting with
Mitchell and immediately authorized his placement in Ad-Seg.
pending further action by [McGuire’s] supervisor and the Unit
Classification Committee. Then [McGuire] documented [his]
conversation with Mitchell and reported the meeting to [his]
supervisor.

10
11
12
13
14

(ECF No. 150-5 at 4.)

15

In the ad seg unit placement notice, signed by McGuire on February 16, 2009, McGuire

16

wrote that during the interview, plaintiff stated: “My goal is to see that Officer Rosario is

17

punished, that he no longer is a Correctional Officer and can no longer hurt anyone.” (ECF No.

18

161-5 at 74.) In his response to plaintiff’s interrogatory numbers 3 and 4, defendant McGuire

19

stated that he did not recall the specific words plaintiff used during the February 16, 2009

20

interview, but added in response to number 4: “but I believe Plaintiff stated he was going to get

21

Rosario fired.” (ECF No. 162 at 26-27.) In his responses to interrogatory numbers 14 and 15,

22

defendant McGuire responded, in pertinent part: “Plaintiff’s comments about Officer Rosario, in

23

combination with his immediate behavior and demeanor during the February 16, 2009 interview,

24

led me to believe that Plaintiff posed a potential threat to the safety of the institution.” (ECF No.

25

162 at 29-30.) In his response to plaintiff’s interrogatory number 16, defendant McGuire stated

26

that

27
28

at the time that [he] interviewed Plaintiff on February 16, 2009,
[McGuire] did not determine that [plaintiff] was an “immediate”
threat. After reflecting on Plaintiff’s statements, the need to
32

1

preserve the integrity of the ongoing investigation into Plaintiff’s
complaints against Officer Rosario, to protect Rosario, to protect
against any future reprisals against plaintiff, and to protect against
Plaintiff’s potential future claims of reprisals, [McGuire]
recommended that Plaintiff be transferred to the administrative
segregation unit so that the classification committee could
determine the most appropriate placement for Plaintiff.

2
3
4
5

(ECF No. 162 at 30.)

6

In his SAC, plaintiff claimed that defendant McGuire retaliated against plaintiff because

7

plaintiff chose not to drop his complaint against defendants Rosario and Garcia. (ECF No. 51 at

8

9.) In opposition to the motion, plaintiff claims that “defendant McGuire threatened to punish

9

plaintiff with punishment if plaintiff refused to withdraw his complaint against defendant Rosario

10

and then mischaracterized plaintiff’s alleged threat against defendant Rosario, in retaliation for

11

filing an excessive force complaint against Rosario.” (ECF No. 161-3 at 29.)
Plaintiff must show that his protected conduct was a “‘substantial’ or ‘motivating’ factor

12
13

behind the defendant’s conduct.” Brodheim, 584 F.3d 1262, 1271 (9th Cir. 2009). To do so,

14

plaintiff may rely on circumstantial evidence establishing a defendant’s intent or motive. See

15

Bruce, 351 F.3d at 1288-89 (concluding prisoner raised a triable issue of fact regarding official’s

16

retaliatory motive with evidence of suspect timing, stale evidence presented against the plaintiff,

17

and statements suggesting retaliatory intent that the official made).
Here, there are material disputes of fact as to what was said during the February 16, 2009

18
19

interview, during which defendant McGuire learned of plaintiff’s prior appeals concerning the

20

events of November 3, 2008, and August 5, 2008. While defendants have presented evidence that

21

McGuire believed plaintiff posed a threat to defendant Rosario, plaintiff has countered with

22

alleged statements made by McGuire which suggest that he acted with a retaliatory motive.

23

Moreover, plaintiff claims that a few minutes after he returned to his cell after meeting defendant

24

McGuire, plaintiff was taken to a different room where Sgt. Fowler15 started questioning plaintiff

25

about his complaints, reminded plaintiff that he was housed at Salinas Valley State Prison with

26

Sgt. Fowler during all the Green wall stuff, and claimed that Fowler and Rosario were

27

“homeboys.” Plaintiff notes that although he was interviewed by McGuire at 9:00 a.m.,

28

15

Neither party provided a declaration by Sgt. Fowler.
33

1

defendant McGuire did not place plaintiff into ad seg until 12:10 p.m., raising an inference that

2

McGuire waited to see if plaintiff would drop his appeals before ordering plaintiff into ad seg.

3

(ECF No. 161-3 at 26.)

4

While a jury may find that defendant McGuire acted for a legitimate penological purpose

5

in placing plaintiff in ad seg because he truly believed plaintiff posed a potential threat to the

6

safety of defendant Rosario, taking plaintiff’s version of what happened on February 16, 2009, as

7

true, a reasonable jury could also find that defendant McGuire acted with a retaliatory motive.

8

Thus, defendant McGuire is not entitled to summary judgment.

9

c. Qualified Immunity: Defendant McGuire

10
11

Defendant McGuire contends he is entitled to qualified immunity. The standards
governing qualified immunity are set forth above.

12

As indicated above, the evidence, construed in the light most favorable to plaintiff, could

13

permit a rational jury to conclude that defendant McGuire placed plaintiff in ad seg in retaliation

14

for plaintiff’s grievances against defendant Rosario. In 2009, a reasonable prison official would

15

have known that retaliating against a prisoner for filing a prison grievance was unlawful. The

16

prohibition against retaliatory punishment is “‘clearly established law’ in the Ninth Circuit, for

17

qualified immunity purposes.” Pratt, 65 F.3d at 806 & n.4.

18

“Where the [defendant’s] entitlement to qualified immunity depends on the resolution of

19

disputed issues of fact in [the defendant’s] favor, and against the non-moving party, summary

20

judgment is not appropriate.” Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir.2003), cert.

21

denied, 543 U.S. 811 (2004) (citation omitted). “Where the objective reasonableness of an

22

officer’s conduct turns on disputed issues of material fact, it is ‘a question of fact best resolved by

23

a jury.’” Torres v. City of Madera, 648 F.3d 1119 (9th Cir. 2011), quoting Wilkins, 350 F.3d at

24

955.

25

Because a genuine issue of fact exists regarding whether defendant McGuire retaliated

26

against plaintiff for filing appeals against defendant Rosario by placing plaintiff in ad seg,

27

defendant McGuire is not entitled to summary judgment on the issue of qualified immunity. See

28

DiRuzza v. County of Tehama, 206 F.3d 1304, 1314-15 (9th Cir.), cert. denied, 531 U.S. 1035
34

1

(2000) (summary judgment inappropriate on retaliation claim where there were disputed issues of

2

material fact regarding whether retaliation was a substantial or motivating factor in defendants’

3

conduct); Chatman v. Tyner, 2009 WL 498958, at *14 (E.D. Cal. Feb. 26, 2009), adopted 2009

4

WL 901129 (E.D. Cal. March 31, 2009) (defendants not entitled to summary judgment on

5

retaliation claim, where plaintiff identified factual disputes concerning whether defendants placed

6

plaintiff in ad seg for retaliatory purposes).

7

IV. Conclusion

8

In accordance with the above, IT IS HEREBY RECOMMENDED that defendants’

9

motion for summary judgment (ECF No. 150) be granted in part and denied in part, as follows:

10

1. Defendants’ motion for summary judgment as to plaintiff’s retaliation claim against

11

defendant Garcia be granted; and

12

2. Defendants’ motion for summary judgment be denied on all remaining claims.

13

These findings and recommendations are submitted to the United States District Judge

14

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

15

after being served with these findings and recommendations, any party may file written

16

objections with the court and serve a copy on all parties. Such a document should be captioned

17

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

18

objections shall be filed and served within fourteen days after service of the objections. The

19

parties are advised that failure to file objections within the specified time may waive the right to

20

appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

21

Dated: February 4, 2015

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