Larson v. Cate et al

Filing 52

ORDER by Judge Lucy H. Koh denying 36 Motion for Summary Judgment; denying 50 Motion to set trial date (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 2/25/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RICHARD TERRY LARSON,

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Plaintiff,
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v.

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M. CREAMER-TODD, et al.,
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Defendants.
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No. C 12-3773 LHK (PR)
ORDER DENYING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT;
REFERRING CASE TO
SETTLEMENT PROCEEDINGS
(Docket No. 36, 50)

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42
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U.S.C. § 1983 alleging that prison officials at Central Training Facility in Soledad retaliated
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against him, in violation of the First Amendment. Defendants have moved for summary
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judgment. Although given an opportunity, plaintiff has not filed an opposition.1 Having

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carefully considered the papers submitted, the court DENIES defendants’ motion for summary
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judgment, for the reasons set forth below.
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BACKGROUND
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The following facts are taken in the light most favorable to plaintiff, and are undisputed
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unless otherwise indicated.
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On February 7, 2014, plaintiff filed a request to be updated as to the status of the case,
and also to move for a trial date. On February 10, 2014, before the court was aware of plaintiff’s
filing, the court issued an order directing plaintiff to file a notice of intent to prosecute. Based on
the plaintiff’s February 7, 2014, pleading, it is clear that plaintiff wishes to prosecute this action.
Plaintiff’s motion to set a trial date is DENIED without prejudice.
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In February 2008, plaintiff arrived at Pleasant Valley State Prison. (Am. Compl. at 10.)

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Upon his arrival, Correctional Counselor L. Webb (“Webb”) told plaintiff that Webb intended to

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affix an administrative determinate for violence and arson into plaintiff’s records even though

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plaintiff had never been arrested for a violent crime or a crime involving arson, as defined under

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the California Penal Code. (Id. at 10-11.) Webb stated that because plaintiff had been convicted

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of threats and arrested for possession of a destructive device, i.e., tracer ammunition, and the

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California Department of Corrections and Rehabilitation had wide latitude in interpreting the

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laws, Webb could impose the administrative determinates. (Id. at 10-11.)

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Plaintiff filed an administrative grievance, arguing that the determinate labels of violence

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and arson were false. (Id. at 12.) Because of the labeling, defendant Counselor Creamer-Todd

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(“Creamer-Todd”) told plaintiff that plaintiff was no longer eligible for the “milestones” time-

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credit program, which would have allowed plaintiff to earn sentencing credits. (Id. at 13.)

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Plaintiff filed another administrative appeal, CTF-S-11-01393, in which plaintiff

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requested a transfer to a counselor other than Creamer-Todd because plaintiff felt that Creamer-

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Todd was incorrect in his response to plaintiff’s previous grievance. (Id. at 14.) In that appeal,

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plaintiff called Creamer-Todd’s response “bizarre and bovine.” (Id.) Because of plaintiff’s use

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of the words “bizarre and bovine,” plaintiff was issued a disciplinary rules violation report for

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being disrespectful to staff. (Id. at 15, Ex. 3 at 49-52.) After a hearing on the rules violation

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report, plaintiff was found guilty of using disrespectful language toward staff, and was issued a

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punishment of a 20-day forfeiture of time-credit. (Id. at 16.) Ultimately, plaintiff’s 20-days of

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time-credit were restored. (Creamer-Todd Decl. at ¶¶ 6-8.)

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ANALYSIS
A.

Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits demonstrate

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that there is “no genuine issue as to any material fact and that the moving party is entitled to

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judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect

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the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute

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as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a
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verdict for the nonmoving party. Id.

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The party moving 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

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only point out “that there is an absence of evidence to support the nonmoving party’s case.” Id.

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at 325.

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Once the moving party meets its initial burden, the nonmoving party must go beyond the

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pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a

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genuine issue for trial.” Fed. R. Civ. P. 56(e). The court is only concerned with disputes over

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material facts and “factual disputes that are irrelevant or unnecessary will not be counted.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is not the task of the court to scour

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the record in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th

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Cir. 1996). The nonmoving party has the burden of identifying, with reasonable particularity,

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the evidence that precludes summary judgment. Id. If the nonmoving party fails to make this

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showing, “the moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S.

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at 323.

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At the summary judgment stage, the court must view the evidence in the light most

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favorable to the nonmoving party: if evidence produced by the moving party conflicts with

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evidence produced by the nonmoving party, the judge must assume the truth of the evidence set

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forth by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA, 198 F.3d 1152,

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1158 (9th Cir. 1999).

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B.

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Plaintiff’s Claim
Liberally construed, plaintiff claims that defendants retaliated against him for using

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protected language, i.e., calling Creamer-Todd’s responses bovine and bizarre, by: (1) charging

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plaintiff with a rules violation; (2) finding plaintiff guilty of disrespecting staff; and (3) warning
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plaintiff to stop using protected language. Defendants argue that plaintiff cannot demonstrate

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that any adverse action was taken against him because plaintiff’s 20-days loss of credit was

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temporary and not significant enough to establish a First Amendment retaliation claim.

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Alternatively, defendants argue that they are entitled to qualified immunity.

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

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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

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

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(footnote omitted)
Defendants argue that the “adverse action” taken against plaintiff was the temporary 20-

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day loss of credits. However, plaintiff has also alleged that defendants warned plaintiff that

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plaintiff’s use of disrespectful words was unacceptable and would not be tolerated. (Am. Compl.

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at 22-23.) Further, plaintiff has provided evidence of a subsequent filing of a rules violation

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report for using disrespectful words. (Id. at 23.) In Brodheim v. Cry, the Ninth Circuit noted

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that the prisoner submitted an administrative grievance, complaining about the conduct of one of

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the prison guards. 584 F.3d 1262, 1265 (9th Cir. 2009). In response, one of the appeals

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coordinators recategorized the inmate’s appeal as a staff complaint, and then rejected it as

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untimely. Id. The inmate filed a request for an interview with that appeals coordinator, using

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what could be interpreted as challenging or disrespectful language, and the appeals coordinator

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responded that the rejection of the inmate’s appeal was correct. Id. The appeals coordinator

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further added, “I’d also like to warn you to be careful what you write, req[u]est on this form.”

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Id. at 1265-66. The Ninth Circuit concluded that the record was sufficient to establish a genuine

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issue of material fact as to whether the warning was an adverse action. Id. at 1270. “By its very

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nature, a statement that warns a person to stop doing something carries the implication of some

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consequence of a failure to heed that warning.” Id.

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Similarly here, plaintiff’s use of “disrespectful” language in his administrative grievance
was admonished in a response to one of plaintiff’s appeals. Further, plaintiff was subsequently
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written up for a rules violation for using that “disrespectful” language, and found guilty of

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violating the prison rule. Based on Brodheim, the court finds that there is a genuine issue of

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material fact whether defendants took some adverse action against plaintiff.

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Defendants also suggest that plaintiff’s filing of the underlying federal complaint cuts

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against plaintiff’s argument that he has been “chilled” from exercising his First Amendment right

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to seek redress. However, Brodheim squarely rejects this argument. “[A] plaintiff does not have

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to show that his speech was actually inhibited or suppressed, but rather that the adverse action at

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issue would chill or silence a person of ordinary firmness from future First Amendment

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activities.” Id. at 1271 (quoting Rhodes, 408 F.3d at 568-69). As in Brodheim, this court finds

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that a reasonable person may have been chilled by defendants’ warning, as well as by the filing

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of a rules violation report.

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Thus, defendants are not entitled to summary judgment on the merits.

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Alternatively, defendants argue that they are entitled to qualified immunity. Specifically,

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defendants argue that the law was not clear regarding whether inmates could be punished for

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using hostile or abusive language in a written grievance.

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The defense of qualified immunity protects “government officials . . . from liability for

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civil damages insofar as their conduct does not violate clearly established statutory or

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constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

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457 U.S. 800, 818 (1982). A court considering a claim of qualified immunity must determine:

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(1) whether the plaintiff has alleged the deprivation of an actual constitutional right, and (2)

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whether such right was clearly established such that it would be clear to a reasonable officer that

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his conduct was unlawful in the situation he confronted. See Pearson v. Callahan, 129 S. Ct.

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808, 818 (2009).

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In Bradley v. Hall, 64 F.3d 1276, 1281-82 (9th Cir. 1995), the Ninth Circuit invalidated

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an Oregon Department of Corrections’ prison regulation, and held that “prison officials may not

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punish an inmate merely for using hostile, sexual, abusive or threatening language in a written

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grievance.” In 2001, the United States Supreme Court explicitly disapproved of the Ninth

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Circuit’s “balancing” method used in Bradley in analyzing whether such a prison regulation
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reasonably advanced a legitimate penological interest. Shaw v. Murphy, 532 U.S. 223, 228

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(2001) (reaffirming that the factors set forth in Turner v. Safley, 482 U.S. 78 (1987) were the

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only factors that the Ninth Circuit should have considered).

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Subsequently, in Brodheim, the Ninth Circuit acknowledged both Bradley and Shaw, and,

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applying the Turner standards, reached the same result as the Bradley court. That is, in

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Brodheim, the Ninth Circuit found that the threat or warning from the prison official to the

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prisoner was “insufficiently related to legitimate penological interests.” Brodheim, 584 F.3d at

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1273.

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Accordingly, because Broheim was decided in 2009, and the allegations against

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defendants took place in 2011-2012, the law was clearly established at the time of the underlying

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events that punishing an inmate for hostile or abusive language is not constitutionally

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permissible. Defendants are not entitled to qualified immunity.

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C.

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Referral to Pro Se Prisoner Settlement Program
Prior to setting this matter for trial and appointing pro bono counsel to represent plaintiff

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for that purpose, the court finds good cause to refer this matter to Judge Vadas pursuant to the

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Pro Se Prisoner Settlement Program for settlement proceedings on the claim set forth above.

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The proceedings will consist of one or more conferences as determined by Judge Vadas. The

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conferences shall be conducted with defendants, or their representatives, attending by

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videoconferencing if they so choose. If these settlement proceedings do not resolve this matter,

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the court will then set this matter for trial and consider a motion from plaintiff for appointment of

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counsel.

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CONCLUSION

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1.

Defendants’ motion for summary judgment is DENIED.

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2.

The instant case is REFERRED to Judge Vadas pursuant to the Pro Se Prisoner

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Settlement Program for settlement proceedings on the remaining claim in this action, as

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described above. The proceedings shall take place within one-hundred twenty (120) days of

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the filing date of this order. Judge Vadas shall coordinate a time and date for a settlement

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conference with all interested parties or their representatives and, within ten (10) days after the
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conclusion of the settlement proceedings, file with the court a report regarding the prisoner

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settlement proceedings. If these settlement proceedings do not resolve this matter, plaintiff can

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file a renewed motion for appointment of counsel, and the court will then set this matter for trial.

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3.

The clerk of the court shall mail a copy of this order to Judge Vadas in Eureka,

California.
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The instant case is STAYED pending the settlement conference proceedings. The

clerk shall ADMINISTRATIVELY CLOSE this action until further order of the court.
IT IS SO ORDERED.
2/24/14
DATED: _________________
LUCY H. KOH
United States District Judge

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Order Denying Defendants’ Motion for Summary Judgment; Referring Case to Settlement Proceedings
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