Gay v. Shaffer et al
Filing
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION FOR SUMMARY JUDGMENT, AND REFERRING CASE TO MAGISTRATE JUDGE FOR SETTLEMENT PROCEEDINGS by Judge Charles R. Breyer: Granting in part and denying in part 22 Motion for Summary Judgment. (lsS, COURT STAFF) (Filed on 5/4/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OMAR SHARRIEFF GAY, E22575,
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Plaintiff,
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United States District Court
Northern District of California
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v.
AMY PARSONS, et al.,
Defendant(s).
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Case No. 16-cv-05998-CRB (PR)
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT, AND
REFERRING CASE TO
MAGISTRATE JUDGE FOR
SETTLEMENT PROCEEDINGS
(ECF No. 22)
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Plaintiff, a prisoner at the California Men’s Colony (CMC) in San Luis Obispo, filed a
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sworn and verified pro se complaint under 42 U.S.C. § 1983 alleging that in September 2015,
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while he was incarcerated at the Correctional Training Facility (CTF) in Soledad, Board of Parole
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Hearings (BPH) psychologists Amy Parsons and Gregory S. Goldstein interviewed him for a
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psychological diagnostic evaluation in preparation for a subsequent parole suitability hearing and,
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on account of his being African-American and Muslim, assessed him as high risk for future
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violence in their report. Plaintiff claims this amounted to unlawful discrimination and retaliation.
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Per order filed on June 28, 2017, the court found that plaintiff’s allegations, liberally
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construed, appeared to state arguably cognizable claims under § 1983 for denial of equal
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protection and for retaliation against defendants Parsons and Goldstein, and ordered the United
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States Marshal to serve them. The court dismissed all other purported claims and defendants
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under the authority of 28 U.S.C. § 1915A(b).
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Defendants now move for summary judgment on the ground that there are no material facts
in dispute and that they are entitled to judgment as a matter of law. They also claim that they are
entitled to qualified immunity. Plaintiff has filed an opposition and defendants have filed a reply.
BACKGROUND
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The September 2015 risk assessment report prepared by Defendant Goldstein and reviewed
by Defendant Parsons before plaintiff’s subsequent parole suitability hearing included a section
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entitled “Assessment of Risk for Violence.” Compl. Ex. B (ECF No. 1-2) at 11. In that portion of
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the report, defendants wrote that “Mr. Gay presents with several factors in the historical domain
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which have been associated with future risk for violence.” Id. They noted that plaintiff had a
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history of violent crime and other antisocial behavior that began at a young age, and increased in
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severity until he was convicted in 1989 of the attempted murder of a police officer. According to
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defendants, “Mr. Gay’s history of violence and other antisocial behavior are highly relevant risk
factors for future violence.” Id. at 11-12. Plaintiff’s antisocial behavior included the following:
Substance Abuse: The report notes that the records indicate that plaintiff’s substance
abuse history involved the use of alcohol, marijuana and PCP. Plaintiff also was engaged in the
United States District Court
Northern District of California
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selling narcotics and “associated violence related to that lifestyle.” Id. at 12. As a result, “Mr.
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Gay’s history of substance use and his involvement in selling narcotics is a relevant factor in his
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risk for future violence.” Id.
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Negative Relationships and Violent Attitude: During his interview with defendants,
plaintiff “noted that his father was involved in organized crime and acknowledged that his father
extorted money from businesses in their area.” Id. He also explained that his father “instilled early
in him that he should not accept the police’s authority, the government, or the rule of law.” Id. At
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a young age, plaintiff sought out negative peers, became a gang member, pursued a criminal
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lifestyle and engaged in ongoing violence. Plaintiff also made a targeted attack on a police officer
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with the intent to commit murder. As a result, defendants concluded that plaintiff’s “history of
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negative relationships and violent attitude, each present as highly significant factors in his risk for
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future violence.” Id.
History of Employment Problems: The report also noted that plaintiff did not have a
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consistent work history as an adult in the community. Plaintiff “chose to forgo legitimate
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employment and instead engaged in gang warfare and criminal behavior for financial gain.” Id.
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And during his incarceration, plaintiff’s work history had not been especially strong. In 2013,
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plaintiff received “Counseling Chronos” for “failure to report to work and not performing his
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assigned task,” and in 2012, he was written up by correctional staff who suspected he was faking
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an injury in order to avoid his work assignment. Id. According to defendants, plaintiff’s “choice
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to forgo legitimate employment for criminal behavior and his history of employment problems
while in prison present as highly relevant risk factors for future violence.” Id.
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Defendants’ report also recounted that plaintiff, who attributed his behavior as a young
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adult to his father’s teachings, was now a devout Muslim, “and has accepted Islamic law as his
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moral compass, guiding his beliefs and actions.” Id. at 14. But according to defendants, plaintiff
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did not “appear to have insight as to why he wholly embraced his father’s value system, Islamic
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law, or any other system he chooses to embrace in the future.” Id. They added that plaintiff’s
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“total commitment to whatever cause he sees fit in the future, and his lack of insight as to why he
totally commits himself to that cause as he did on the day he committed the life crime, is a highly
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significant factor in Mr. Gay’s future risk for violence.” Id.
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In the final section of the report, defendants concluded that “based upon an analysis of the
presence and relevance of empirically supported risk factors, case formulation of risk, and
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United States District Court
Northern District of California
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consideration of the inmate’s anticipated risk management needs if granted parole supervision
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(i.e., intervention, monitoring), Mr. Gay represents a High risk for violence.” Id. at 16 (emphasis
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in original). They noted that plaintiff had not programmed well during his incarceration and added
the following observation:
Overall, Mr. Gay has not spent a great deal of time while
incarcerated attending self-help programming and his level of
understanding of his antisocial personality characteristics which
predispose him to violence is lacking. Furthermore, Mr. Gay’s
continued oppositional attitude toward authority does not appear to
be well contained and continues to be a highly relevant factor in his
risk for future violence at this time. Lastly, Mr. Gay has not
communicated an understanding of his total commitment to a
particular belief system such as that of his father, his Islamic faith,
or any other system he may adopt in the future. And this lack of
understanding makes his susceptibility to possible negative
influences unpredictable.
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Id.
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/
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DISCUSSION
A.
Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits show that there
is “no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of
the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material
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fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the
nonmoving party. Id.
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The moving party for summary judgment bears the initial burden of identifying those
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portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine
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issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving
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party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no
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reasonable trier of fact could find other than for the moving party. But on an issue for which the
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opposing party will have the burden of proof at trial, [as is the case here,] the moving party need
only point out “that there is an absence of evidence to support the nonmoving party’s case.” Id.
Once the moving party meets its initial burden, the nonmoving party must go beyond the
pleadings to demonstrate the existence of a genuine dispute of material fact by “citing to specific
parts of materials in the record” or “showing that the materials cited do not establish the absence
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United States District Court
Northern District of California
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or presence of a genuine dispute.” Fed. R. Civ. P. 56(c). A triable dispute of material fact exists
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only if there is sufficient evidence favoring the nonmoving party to allow a jury to return a verdict
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for that party. Anderson, 477 U.S. at 249. If the nonmoving party fails to make this showing, “the
moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323.
There is no genuine issue for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 249. If the
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evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
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Id. at 249-50.
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B.
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Analysis
Defendants argue that they are entitled to summary judgment and qualified immunity on
plaintiff’s claims that defendants’ assessment of plaintiff as high risk for future violence amounted
to denial of equal protection and to retaliation. Under Saucier v. Katz, 533 U.S. 194 (2001), the
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court must undertake a two-step analysis when a defendant asserts qualified immunity in a motion
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for summary judgment. The court first faces “this threshold question: Taken in the light most
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favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated
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a constitutional right?” 533 U.S. at 201. If the court determines that the conduct did not violate a
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constitutional right, the inquiry is over and the officer is entitled to qualified immunity.
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If the court determines that the conduct did violate a constitutional right, it then moves to
the second step and asks “whether the right was clearly established” such that “it would be clear to
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a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 201-02.
Even if the violated right was clearly established, qualified immunity shields an officer from suit
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when he makes a decision that, even if constitutionally deficient, reasonably misapprehends the
law governing the circumstances he confronted. Brosseau v. Haugen, 543 U.S. 194, 198 (2004);
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Saucier, 533 U.S. at 205-06. If “the officer’s mistake as to what the law requires is reasonable . . .
the officer is entitled to the immunity defense.” Id. at 205.1
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1.
“The Equal Protection Clause of the Fourteenth Amendment commands that no
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Equal Protection
State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is
essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216
(1982)). “Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment
from invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974)
(citation omitted). They also are protected under the Equal Protection Clause from invidious
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United States District Court
Northern District of California
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discrimination based on being an adherent of a minority religion. See Cruz v. Beto, 405 U.S. 319,
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322 (1972).
To state a claim under § 1983 for violation of the Equal Protection Clause, a prisoner
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plaintiff must show that the defendants acted with an intent or purpose to discriminate against him
based upon his membership in a protected class. Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th
Cir. 2013); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003). “Intentional discrimination
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means that a defendant acted at least in part because of a plaintiff’s protected status.” Maynard v.
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City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) (emphasis in original) (citation omitted). To
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avoid summary judgment, a prisoner plaintiff must produce evidence sufficient to permit a
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reasonable trier of fact to find by a preponderance of the evidence that the decision at issue was
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motivated at least in part by his membership in a protected class. Serrano, 345 F.3d at 1082.
Defendants argue that the September 2015 risk assessment report shows that plaintiff’s
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status as an African-American Muslim did not impact their decision that plaintiff posed a high risk
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for violence. They note that the report makes clear that they found plaintiff to be a high risk for
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violence because plaintiff has a history of violence and antisocial behavior, and continues to
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exhibit antisocial personality characteristics that predispose him to violence. Defendants did note
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in the report that plaintiff’s father was a “‘Black Nationalist’ who considered himself a Muslim,”
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Comp. Ex. B at 2, and that plaintiff reported that “he acted so violently because he devoted
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Although the Saucier sequence is often appropriate and beneficial, it is not mandatory. A court
may exercise its discretion in deciding which prong to address first, in light of the particular
circumstances of each case. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
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himself completely to the internalized belief system instilled in him by his father,” id. at 14. But
defendants’ expressed concern was not with plaintiff’s status as an African-American Muslim, but
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rather with the fact that plaintiff “has not communicated an understanding of his total commitment
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to a particular belief system such as that of his father, his Islamic faith, or any other system he may
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adopt in the future. And this lack of understanding makes his susceptibility to possible negative
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influences unpredictable.” Id. at 16.
Under the facts presented in the September 2015 risk assessment report, no reasonable jury
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could find that defendants’ decision that plaintiff posed a high risk for violence was motivated by
plaintiff’s status as an African-American Muslim. See Anderson, 477 U.S. at 249. But plaintiff’s
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detailed description of the psychological diagnostic evaluation and process that led to defendants’
decision is very different from that provided in the report.
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In his sworn and verified complaint,2 plaintiff alleges that during the psychological
United States District Court
Northern District of California
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diagnostic evaluation with defendants he “explained in detail his earliest childhood benefits,
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introduction, and positive experiences and beliefs from his father’s Black Nationalistic and Pseudo
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Islamic belief system.” Compl. ¶ 16.
Plaintiff actually elaborated to Defendants, when asked, how
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Plaintiff’s father was a member of a pro-Black Nationalist
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organization having Pseudo-Islamic beliefs and practiced the social
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and economic upliftment [sic] of African Americans through ‘Black
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free enterprise, the establishment of Black-owned, Black-operated
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businesses in the African American communities to the full
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exclusion of the Jewish business monopoly in the African American
communities at that time in the nineteen fifties and nineteen sixties.
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Id. ¶ 80. But defendants responded angrily to his description of his community members by
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referring to them as a “bunch of gorillas and thugs in suits and bow ties.” Id. ¶ 81. And in their
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risk assessment report, they stated that plaintiff had “noted that his father was involved in
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organized crime, and acknowledged that his father extorted money from businesses in their area.
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Mr. Gay also explained that his father instilled early in him that he should not accept the police’s
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A verified complaint may be treated as an opposing affidavit or declaration where, as here,
plaintiff states under penalty of perjury that the allegations are true and correct, and the allegations
are based on his personal knowledge. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn. 10-11
(9th Cir. 1995).
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authority, the government, or the rule of law.” Id. Ex. B at 2. Plaintiff refutes this by alleging that
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“at no time did Plaintiff report or acknowledge to said Defendants that Plaintiff’s father ‘was
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involved in organized crime and extortion.’” Id. ¶ 82. Defendants “prejudicially changed lawful
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economic ‘free enterprise’ by Black people into ‘organized crime’ and ‘extortion’ and ‘Black
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Muslims’ into being ‘organized criminals.’” Id. ¶ 83.
Plaintiff further alleges that defendants asked him “racially charged anti-Islamic” questions
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and called him “racially charged anti-Islamic” names. Id. ¶ 17. At one point during the
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evaluation, Defendant Parsons looked directly at plaintiff and said, “‘talk about radical Black
Islamic terrorist.’” Id. ¶¶ 20, 21. At another point during the evaluation, Defendant Goldstein said,
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“‘with everything going on in the world, at home with Moslems, we don’t know if you are just
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another radical Islamic terrorist.” Id. ¶ 14. Goldstein added, “‘Parsons and I are just trying to
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United States District Court
Northern District of California
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understand in your own words a little about your history as a Moslem, who are you today? What
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particular ideology do you follow? Malcolm X? Luis Farrakhan? Osama Bin Laden? Who are you
today?’” Id. ¶ 15. And when plaintiff noted that he had “self-esteem not conceit” in response to a
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question about whether he thought highly of himself, id. ¶ 23, Goldstein asked, “‘is that the sort of
teachings you learned from those criminals and Black Nationals growing up as a child?” id. ¶ 24.
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Plaintiff objected to the characterization of Black Nationalists as criminals, but Goldstein
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continued, “‘I bet they taught you a lot of that militant garbage and nonsense like Black Power,
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Black Pride, smashing up Jewish liquor stores, huh?” Id. ¶ 27.
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Viewing the evidence in the light most favorable to plaintiff as the nonmoving party,
plaintiff has alleged sufficient facts to permit a reasonable trier of fact to find by a preponderance
of the evidence that defendants’ decision that he posed a high risk for violence was motivated at
least in part by his status as an African-American Muslim. Although defendants point to various
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permissible findings and observations in support of their decision, the fact remains that plaintiff
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has alleged under penalty of perjury that defendants made specific, racially and anti-Islamic tinged
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remarks during the evaluation, and this is sufficient evidence of discriminatory intent to create a
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genuine issue of material fact as to whether defendants’ actions violated the Equal Protection
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Clause. See Serrano, 345 F.3d at 1082-83 (prisoner’s declaration that hearing officer made
specific racial comments at disciplinary hearing in response to prisoner’s own infusion of race into
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the hearing – specifically, hearing officer remarked that he “[didn’t] know how black people
think” and that “he was treating [prisoner] like all the rest . . . and that [prisoner] was ‘not O.J.
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Simpson or Johnnie Chocran’” – was enough to create a triable issue of fact on prisoner’s § 1983
claim that decision not to allow live witness testimony at hearing was racially motivated).
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Defendants are not entitled to summary judgment on plaintiff’s equal protection claim.
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See id. at 1083. Nor are they entitled to qualified immunity at this stage in the proceedings.
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Whether defendants may be said to have made a “reasonable mistake” of fact or law entitling them
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to qualified immunity, Saucier v. Katz, 533 U.S. 194, 205 (2001), will depend on the resolution of
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disputed facts and the inferences that may be drawn therefrom. See Santos v. Gates, 287 F.3d
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846, 855 n.12 (9th Cir. 2002).
2.
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Retaliation
To prevail on a First Amendment retaliation claim, a prisoner must show: (1) that a
state actor took some adverse action against a prisoner (2) because of (3) that prisoner’s protected
conduct, and that such action (4) chilled the prisoner’s exercise of his First Amendment rights, and
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United States District Court
Northern District of California
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(5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408
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F.3d 559, 567-68 (9th Cir. 2005). The prisoner must prove all the elements of a retaliation claim,
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including the absence of legitimate correctional goals for the conduct of which he complains.
Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). Plaintiff does not.
Plaintiff claims that defendants decided that he posed a high risk for violence in retaliation
for his status as an African-American Muslim. But this is a reiteration of plaintiff’s equal
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protection claim rather than a stand-alone First Amendment retaliation claim. To be sure, it is well
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established in this circuit that the right to equal protection includes the right not to be retaliated
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against because of the protected status of the person to whom one offers assistance with the filing
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of a grievance or complaint. See Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)
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(noting that jury instructions correctly explained that right to equal protection of the laws includes
right not to be subjected to retaliation because one offers assistance to a Black person). In order to
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prove such an equal protection violation, a plaintiff must show that the individual defendants
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retaliated against him at least in part because of the protected status of the person to whom
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plaintiff offered assistance with the filing of a grievance or complaint. See id. at 1404-05 (jury
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verdict for white plaintiff on equal protection claim under § 1983 reversed where there was no
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evidence that defendants retaliated against plaintiff because he assisted Black job applicant who
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was passed over for job). But plaintiff makes no such claim, let alone such showing. Nor does
plaintiff set forth any evidence showing all the elements of a First Amendment retaliation claim.
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See Rhodes, 408 F.3d at 567-68; Pratt, 65 F.3d at 806.
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Defend
dants are enti
itled to summ
mary judgme and qual
ent
lified immun on plaint
nity
tiff’s
1
reta
aliation claim See Celo Corp., 477 U.S. at 3
m.
otex
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323; Saucier, 533 U.S. at 201.
,
t
2
3
/
/
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5
CONCLU
USION
For the foregoing re
easons, defendants’ mot
tion for summ
mary judgm (ECF No 22) is
ment
o.
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RANTED IN PART and DENIED IN PART. De
N
N
efendants ar entitled to summary ju
re
udgment and
d
GR
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qua
alified immu
unity on plaintiff’s retaliation claim, but are not entitled to su
ummary jud
dgment or
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United States District Court
Northern District of California
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qua
alified immu
unity on plaintiff’s equal protection c
l
claim at this stage in the proceeding
s
e
gs.
The cou finds that referral of this case to a magistrate judge for se
urt
t
t
ettlement pro
oceedings is
in order and he
o
ereby REFER this matter to Magist
RS
trate Judge Illman for settlement pro
oceedings.
All other proce
l
eedings are stayed.
s
A settle
ement confer
rence shall ta place wi
ake
ithin 90 days of the date of this orde or as soon
s
e
er,
n
12
the
ereafter as is convenient to Magistrat Judge Illm
te
man’s calend
dar. Magistr Judge Ill
rate
lman shall
13
coo
ordinate a tim and date for the conf
me
ference with all intereste parties and their rep
ed
d/or
presentatives
s
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and within ten (10) days after the conc
d,
n
clusion of th conference file a repo regarding the
he
e,
ort
g
con
nference.
The cle shall prov a copy of this order to Magistra Judge Illm
erk
vide
o
r
ate
man.
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IT IS SO ORDER
S
RED.
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Da
ated: May 4, 2018
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___
__________
___________
__________
________
CH
HARLES R. BREYER
Un
nited States D
District Judg
ge
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1
2
3
4
UNITED STATES D
D
DISTRICT C
COURT
5
NORTHER DISTRIC OF CALI
RN
CT
IFORNIA
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7
OMAR SHAR
O
RRIEFF GA
AY,
Case No. 3
3:16-cv-0599
98-CRB
Plaintiff,
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v.
CERTIFIC
CATE OF S
SERVICE
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AMY PARSO
A
ONS, et al.,
s.
Defendants
United States District Court
Northern District of California
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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
Dis
strict Court, Northern Di
istrict of Cal
lifornia.
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That on May 4, 201 I SERVE a true and correct cop
n
18,
ED
d
py(ies) of the attached, b placing
by
said copy(ies) in a postage paid envelo addressed to the pers
i
ope
d
son(s) herein
nafter listed, by
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.
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Om Sharrieff Gay ID: Emar
f
-22575
California Men Colony - West II
ns'
San Luis Obisp CA 9340
n
po,
09
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ated: May 4, 2018
Da
Su
usan Y. Soon
ng
Cl
lerk, United States Distr Court
d
rict
By
y:_________
___________
_______
La
ashanda Sco Deputy C
ott,
Clerk to the
H
Honorable CH
HARLES R. BREYER
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