Burghardt v. Franz, et al
Filing
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ORDER GRANTING IN PART AND DENYING IN PART 98 PARTIAL MOTION FOR SUMMARY JUDGMENT by Judge Beth Labson Freeman. (blflc2, COURT STAFF) (Filed on 6/16/2022)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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DARRYL BURGHARDT,
Plaintiff,
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v.
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J. FRANZ, et al.,
United States District Court
Northern District of California
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Case No. 17-cv-00339-BLF
Defendants.
ORDER GRANTING IN PART AND
DENYING IN PART PARTIAL
MOTION FOR SUMMARY
JUDGMENT
[Re: ECF No. 98]
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In this case, Plaintiff Darryl Burghardt brings three claims under 42 U.S.C. § 1983 for
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alleged violations of his First and Eighth Amendment rights during his incarceration at Pelican
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Bay State Prison. This order resolves a motion for partial summary judgment brought by
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Defendants J. Franz, G. Kelley, and K. Bragger. See ECF No. 98 (“MSJ”); see also ECF No. 105
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(“Reply”). Burghardt partially opposes the motion. See ECF No. 103 (“Opp.”). The Court held a
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hearing on this motion on June 16, 2022. For the reasons stated below, the Court GRANTS IN
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PART AND DENIES IN PART the motion for partial summary judgment.
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“A party is entitled to summary judgment if the ‘movant shows that there is no genuine
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dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of
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Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. P.
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56(a)). A fact is “material” if it “might affect the outcome of the suit under the governing law,”
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and a dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable trier
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of fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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248 (1986). The party moving for summary judgment bears the initial burden of “produc[ing]
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evidence negating an essential element of the nonmoving party’s claim or defense or show[ing]
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that the nonmoving party does not have enough evidence of an essential element to carry its
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ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d
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1099, 1102 (9th Cir. 2000).
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nonmoving party to produce evidence supporting its claims or defenses. Id. at 1103. If the
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nonmoving party does not produce evidence to show a genuine issue of material fact, the moving
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party is entitled to summary judgment. Celotex, 477 U.S. at 323. “The court must view the
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evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the
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nonmovant’s favor.” City of Pomona, 750 F.3d at 1049. In judging evidence at the summary
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judgment stage, the Court “does not assess credibility or weigh the evidence, but simply
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determines whether there is a genuine factual issue for trial.” House v. Bell, 547 U.S. 518, 559-60
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(2006).
As an initial matter, Burghardt does not oppose Defendants’ motion for summary judgment
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United States District Court
Northern District of California
If the moving party meets its initial burden, the burden shifts to the
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as to (1) claims 1 and 2 against Defendant Kelley, and (2) claim 3 as to Defendant Bragger. See
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Opp. at 1 n.2. Accordingly, Defendants’ motion for partial summary judgment will be
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GRANTED on those claims as to those Defendants, and Defendants Kelley and Bragger will be
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DISMISSED from the case.
The only remaining issue is whether Officer Franz is entitled to summary judgment on
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claim 1 regarding an incident on August 27, 2012.1 On that date, Burghardt requested that Officer
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Franz provide him with a grievance form. ECF No. 103-2 (“Burghardt Dep.”) 17:6–11; ECF No.
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98-3 (“Franz Decl.”) ¶ 3. After Officer Franz informed him that he did not have any forms,
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Burghardt asked to speak to Officer Franz’s supervisor, but Officer Franz refused. Burghardt Dep.
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17:12–21; Franz Decl. ¶ 3. To get the attention of a supervisor, Burghardt refused to relinquish
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his food tray. Burghardt Dep. 17:22–23, 21:18–20. After Burghardt refused to give up his food
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tray, Burghardt says that Officer Franz said words to the effect of, “You’re asking for the form.
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You’re lucky you’re eating.” or, “You’re lucky if you eat tomorrow.” Id. 23:12–19. Burghardt
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interpreted these statements as threats that he would not be allowed to eat if he sought to file a
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Officer Franz does not move for summary judgment on claims 1 or 2 regarding an incident on
September 14, 2012 in which Officer Franz closed a food port on Burghardt’s hand. See Opp. at 1
n.1.
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grievance against Officer Franz. Id. 23:7–9. Officer Franz says that after numerous verbal
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attempts to get the tray from Burghardt, he told Burghardt that he would be placed on paper-tray
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status and that he would not receive his evening meal unless he relinquished the tray. Franz Decl.
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¶ 3. After Officer Franz’s shift was over, Burghardt returned his food tray, and the next day he
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received and submitted a grievance form against Officer Franz for the threats. Burghardt Dep.
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26:22–27:16; ECF No. 98-9 at DEF000580 (complaint form). Officer Franz also wrote a Rules
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Violation Report on Burghardt for his failure to obey a direct order to relinquish his food tray.
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Franz Decl. ¶ 4. No food was withheld from Burghardt. Burghardt Dep. 23:20–25.
United States District Court
Northern District of California
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Officer Franz argues that he is entitled to qualified immunity for the course of conduct on
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August 12 because no reasonable jury could find that his statement amounted to a threat of
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retaliation. MSJ at 14–17; Reply at 2–3. Burghardt maintains that there is a genuine dispute of
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material fact as to whether the statement amounts to a threat of retaliation, so Officer Franz is not
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entitled to qualified immunity. See Opp. at 5–8.
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“The doctrine of qualified immunity protects government officials from liability for civil
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damages ‘unless a plaintiff pleads facts showing (1) that the official violated a statutory or
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constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged
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conduct.’” Wood v. Moss, 572 U.S. 744, 745 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,
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735 (2011)). On the first prong, the Court examines whether, “taken in the light most favorable to
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the party asserting the injury, [ ] the facts alleged show the officer's conduct violated a
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constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). On the second prong, the Court
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looks to whether the constitutional right was “clearly established”—that is, “whether it would be
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clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at
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202. “The clearly established right must be defined with specificity.” City of Escondido v.
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Emmons, 139 S. Ct. 500, 503 (2019). A court may exercise discretion in determining the order of
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analyzing the two prongs. Pearson v. Callahan, 555 U.S. 223, 241–42 (2009).
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The parties agree that at prong two, it was clearly established by 2012 that a mere threat of
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harm, regardless of whether it was carried out, can amount to an adverse action for a First
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Amendment retaliation claim. See Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (“[A]
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United States District Court
Northern District of California
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retaliation claim may assert an injury no more tangible than a chilling effect on First Amendment
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rights.”); Opp. at 8; Reply at 2. The dispute for this motion is at prong one—whether Officer
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Franz’s statement amounted to a threat of retaliation such that he violated Burghardt’s First
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Amendment rights. The Court finds that, taking the facts in the light most favorable to Burghardt,
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Officer Franz made statements “that a reasonable factfinder could . . . interpret as intimating that
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some form of punishment or adverse regulatory action would follow.” Brodheim, 584 F.3d at
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1270 (quoting Okwedy v. Molinari, 333 F.3d 339, 343 (2d Cir. 2003)). The statements, “You’re
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lucky you’re eating” and “You’re lucky if you eat tomorrow” (or words to that effect) could be
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reasonably interpreted as a threat that food would be withheld from Burghardt if he obtained and
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submitted a grievance form. A jury must resolve whether Officer Franz made those statements
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and whether such statements were reasonably interpreted as threats of harm in retaliation for
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seeking to file a grievance.
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For the foregoing reasons, the motion for partial summary judgment is GRANTED IN
PART AND DENIED IN PART as follows:
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Defendants’ unopposed motion for summary judgment on claims 1 and 2 as to
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Defendant Kelley and claim 3 as to Defendant Bragger is GRANTED, and
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Defendants Kelley and Bragger are DISMISSED from this case; and
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Defendants’ motion for summary judgment on claim 1 as to Defendant Franz
regarding the August 27, 2012 incident is DENIED.
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In light of this order, claim 1 as to Defendant Franz (based on both the August 27, 2012 and
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September 14, 2012 incidents) and claim 2 as to Defendant Franz (based on the September 14,
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2012 incident) will proceed.
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Dated: June 16, 2022
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BETH LABSON FREEMAN
United States District Judge
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