Washington v. Sandoval et al

Filing 227

ORDER RE: RETALIATORY ACTS. Signed by Judge Lucy H. Koh on July 25, 2013. (lhklc1, COURT STAFF) (Filed on 7/25/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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JESSE WASHINGTON,

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Plaintiff,
v.
D. SANDOVAL,
Defendant.

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Case No.: 10-CV-250-LHK
ORDER RE: RETALIATORY ACTS

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Before the Court is the issue of whether Plaintiff should be permitted to claim during trial
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that, in addition to Defendant’s issuance of a Rule Violation Report against Plaintiff (“RVR”),
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Defendant’s retaliatory acts include Defendant’s failure to: (1) provide a new mattress; (2) have the
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toilet and sink leak in Plaintiff’s cell repaired; and (3) provide religious vegetarian meals to
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Plaintiff. For the reasons set forth below, the Court finds that Plaintiff’s retaliation claim is limited
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to the issuance of the RVR.
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On March 22, 2012, this Court found that Defendant was entitled to qualified immunity as
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to Plaintiff’s Eighth Amendment deliberate indifference claim because it was not clearly
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established that prison officials’ conduct in responding to the toilet leak in Plaintiff’s cell created a
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sufficiently serious deprivation of a human need so as to violate the Eighth Amendment. ECF No.
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67 at 11-13. The Court denied summary judgment as to Plaintiff’s First Amendment retaliation
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claim. Id. at 15-17. After an unsuccessful mediation pursuant to the Court’s Pro Se Prisoner
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Case No.: 10-CV-250-LHK
ORDER RE: RETALIATORY ACTS

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Settlement Program, the Court appointed counsel to represent Plaintiff on October 2, 2012. See

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ECF No. 85.

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Plaintiff filed a First Amended Complaint on December 10, 2012. ECF No. 95. Then, on

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January 9, 2013, Plaintiff filed a Second Amended Complaint (“SAC”). Plaintiff’s SAC states that

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the SAC was “filed in accordance with the December 31, 2012 stipulation between the parties

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(Dkt. No. 97).” SAC ¶ 7. The SAC further states that “[t]he stipulation provided that Plaintiff’s

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Second Amended Complaint ‘will include only the lone remaining cause of action: Plaintiff’s

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retaliation claim against Defendant Sandoval regarding the issuance of a rules violation report on

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July 1, 2008, who will remain as the lone named Defendant.’” Id. (quoting ECF No. 97) (emphasis

United States District Court
For the Northern District of California

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added). Notably, Plaintiff does not describe the remaining claim as being predicated upon

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Defendant’s failures to: (1) provide a new mattress; (2) have the toilet and sink leak in Plaintiff’s

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cell repaired; and (3) provide religious vegetarian meals to Plaintiff.

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The SAC’s Prayer for Relief also states that the retaliation was Defendant’s issuance of the

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RVR. See id., Prayer for Relief, ¶ 1 (“A judgment in favor of Plaintiff finding that Defendant

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violated Plaintiff’s rights under the 1st Amendment of the United States to be able to petition the

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government without fear of reprisal by issuing an unwarranted Rules Violation Report in reprisal

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for Plaintiff’s requests for accommodation of his disability.”) (emphasis added). On the other

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hand, the SAC’s Prayer for Relief does not represent that the following constitute retaliatory acts:

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(1) Defendant’s failure to provide a new mattress; (2) Defendant’s failure to have the toilet and

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sink leak in Plaintiff’s cell repaired; and (3) Defendant’s failure to provide religious vegetarian

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meals to Plaintiff.

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Moreover, the Court observes that, “a viable claim of First Amendment retaliation entails

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five basic elements: (1) An assertion that a state actor took some adverse action against an inmate

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(2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citation omitted).

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Plaintiff’s SAC alleges each of these elements to establish a First Amendment retaliation claim

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based on the issuance of the RVR. For example, for the first through third elements, that a state
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Case No.: 10-CV-250-LHK
ORDER RE: RETALIATORY ACTS

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actor took some adverse action against an inmate because of the inmate’s protected conduct, the

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SAC states that “Defendant Sandoval issued the RVR in reprisal for Plaintiff’s multiple requests

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for accommodation . . . .” SAC ¶ 26. For the fourth element, that the adverse action chilled the

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inmate’s exercise of his First Amendment rights, the SAC states: “As a result of Defendant

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Sandoval’s filing of the RVR, Plaintiff’s exercise of his 1st Amendment rights have been chilled.”

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Id. ¶ 29. For the fifth element, that the adverse action did not reasonably advance a legitimate

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correctional goal, the SAC states: “Defendant Sandoval’s filing of the RVR did not reasonably

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advance a legitimate correctional goal.” Id. ¶ 27. By contrast, the SAC does not allege these

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elements with respect to Defendant’s failures to: (1) provide a new mattress; (2) have the toilet and

United States District Court
For the Northern District of California

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sink leak in Plaintiff’s cell repaired; and (3) provide religious vegetarian meals to Plaintiff.
Plaintiff has not previously articulated Plaintiff’s theory that Defendant’s failure to respond

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to these requests constituted the retaliatory acts of Plaintiff’s First Amendment retaliation claim.

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Indeed, the first time the Court was advised of this theory was the July 19, 2013 Pre-Trial

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Conference. Given that the parties engaged in discovery and prepared for trial based on the

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understanding that the retaliatory act at issue is Defendant’s issuance of the RVR, permitting

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Plaintiff to change the theory of Plaintiff’s claim this close to trial, which will begin on July 29,

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2013, would be prejudicial to Defendant.

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The Court therefore precludes Plaintiff from arguing that Defendant’s failures to: (1)

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provide a new mattress; (2) have the toilet and sink leak in Plaintiff’s cell repaired; and (3) provide

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religious vegetarian meals to Plaintiff constitute retaliation. Plaintiff is also prohibited from

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seeking damages from injuries relating to the aforementioned failures. However, evidence of

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Plaintiff’s repeated requests that Defendant correct the aforementioned living conditions and

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Defendant’s failure to do so until Plaintiff was injured is relevant and admissible for the purpose of

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showing that Defendant’s issuance of the RVR was for retaliatory reasons. For example,

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Defendant’s failure to repair the toilet and seat leak in Plaintiff’s cell until Plaintiff was injured is

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probative of Defendant’s attitude towards Plaintiff and Plaintiff’s requests for improvements to his

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living conditions.

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Case No.: 10-CV-250-LHK
ORDER RE: RETALIATORY ACTS

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IT IS SO ORDERED.

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Dated: July 25, 2013

_________________________________
LUCY H. KOH
United States District Judge

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United States District Court
For the Northern District of California

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Case No.: 10-CV-250-LHK
ORDER RE: RETALIATORY ACTS