Gray v. Doe et al
Filing
145
ORDER Denying 118 Motion for Summary Judgment. Signed by Judge Jeffrey T. Miller on 4/12/2012. (All non-registered users served via U.S. Mail Service)(knb)
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JM
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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ORDER DENYING MOTION FOR
SUMMARY JUDGMENT
Plaintiff,
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Case No. 8-cv-1147-JM-WVG
GREGORY LEE GRAY,
vs.
Docket No. 118
ROBERT HERNANDEZ et al.,
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Defendants.
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In June 2008, Plaintiff Gregory Lee Gray filed a complaint under 42 U.S.C. § 1983
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against Defendants Sterling, Peterson, and Marrero arising from events that occurred at R.J.
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Donovan Correctional Facility. Several of the claims have been dismissed, and Defendants now
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move for summary judgment on Plaintiff’s First Amendment retaliation claim. For the reasons
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stated below, the motion is DENIED.1
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I. BACKGROUND
Plaintiff’s first amended complaint (“FAC”) alleges that in January 2007, Plaintiff
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filed a small claims suit against Defendant Marrero, Captain of Facility 3 Yard, and Defendants
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Sterling and Peterson, employees of the prison library (the “librarians”). Thereafter, Plaintiff
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While the Magistrate Judge filed a thorough report and recommendation recommending the
motion be granted, the court declines to accept its conclusion.
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made a written settlement offer to the librarians informing them that they had been sued for
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$1,666.20 for denying Plaintiff access to the law library. The offer stated that Plaintiff was
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“willing to Settle if you pay me the sum of $200 dollars, and ‘no’ Restitution is taken out of my
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Account.” Defendants claim that they interpreted this as an extortion attempt and that they
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feared for their safety, so they filed Rules Violation Reports (“RVRs”) against Plaintiff. Plaintiff
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was charged with extortion and placed in Administrative Segregation (“Ad Seg”) by Defendant
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Marrero on June 18, 2007. He was found not guilty of the extortion charge, and then released
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from Ad Seg on August 22, 2007. Plaintiff was transferred to Mule Creek State Prison in
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October 2007, and shortly thereafter was transferred to High Desert State Prison. Based on his
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punishments, Plaintiff filed this lawsuit stating several causes of action. Defendants now move
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for summary judgment on Plaintiff’s First Amendment retaliation claim, the only cause of action
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that has survived Defendants’ motions to dismiss.
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II. LEGAL STANDARD AND DISCUSSION
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A. Summary Judgment Standard
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When a party moves for summary judgment under Fed. R. Civ. P. 56(b), the motion
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should only be granted if “under the governing law, there can be but one reasonable conclusion
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as to the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court should
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look to “whether the evidence presents a sufficient disagreement to require submission to a jury
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or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.
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“Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a
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summary judgment motion may properly be made in reliance solely on the pleadings,
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depositions, answers to interrogatories, and admissions on file.” Celotex Corp. v. Catrett, 477
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U.S. 317, 323 (1986). “To rebut the motion for summary judgment successfully, the plaintiffs
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must point to some facts in the record that demonstrate a genuine issue of material fact and, with
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all reasonable inferences made in the plaintiff’s favor, could convince a reasonable jury to find
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for the plaintiffs.” Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000).
At summary judgment, generally “a nonmoving party plaintiff has no obligation to
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produce anything until the moving party defendant has carried its initial burden of production.”
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Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1107 (9th Cir.
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2000). In many cases, the moving party has not sufficiently demonstrated the lack of a triable
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issue, so no defense is required. Id. at 1105 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,
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161 (1970)). However, the moving party may also succeed by showing that the nonmoving party
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does not have sufficient evidence to carry the ultimate burden of persuasion at trial. Nissan at
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1106.
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B. Retaliation Claim
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1. The Five-Factor Rhodes Test
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The parties agree that district courts must analyze five elements when addressing a First
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Amendment retaliation claim, as explained in Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir.
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2005). The Rhodes court stated that
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[w]ithin the prison context, a viable claim of First Amendment retaliation entails
five basic elements: (1) An assertion that a state actor took some adverse action
against an inmate; (2) because of (3) that prisoner’s protected conduct, and that
such action (4) chilled the inmate’s exercise of his First Amendment rights, and
(5) the action did not reasonably advance a legitimate correctional goal.
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In McCollum v. Cal. Dept. of Corrections & Rehabilitation, 647 F.3d 870, 882 (9th Cir.
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2011), the court explained that “[t]o raise a triable issue as to motive, [a plaintiff seeking to
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defeat summary judgment on a retaliation claim] must offer either direct evidence of retaliatory
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motive or at least one of three general types of circumstantial evidence.” (internal quotation
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marks omitted). Circumstantial evidence of motive most often includes: (1) proximity in time
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between the speech and the retaliation; (2) “that the defendant expressed opposition to the
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speech;” or (3) other evidence calling into doubt the reasons defendants provide for taking the
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adverse action. Id.
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a. Adverse Action
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Defendants argue that their actions cannot constitute adverse action because they were
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merely complying with the law. However, they cite no law in support of their theory that good
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faith punishments cannot be adverse actions. The Ninth Circuit has explained that even a threat
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of retaliation can be an adverse action, since it could have a chilling effect on speech. Brodheim
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v. Vry, 584 F.3d 1262, 1270 (9th Cir. 2009). See also Hearn v. Arpaio, 2007 WL 1381616 at *4
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(D. Ariz. 2007) (unreported case) (finding that placement in administrative segregation was
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adverse action even though it was in furtherance of a legitimate correctional goal).
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b. Because of the Prisoner’s Protected Conduct/Advancement of Legitimate Correctional Goal
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Defendants claim that the “uncontroverted evidence” demonstrates that the librarians
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filed the RVRs because of a perceived rules violation rather than because of any retaliatory
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motive. Similarly, Defendant Marrero states that he was required to place Plaintiff in Ad Seg
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because of the charges against him. Defendants urge that “[w]hen an obvious alternative
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explanation for conduct is offered, the Court should adopt that explanation in place of a mere
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inference of retaliation.” Def. SJ Mtn. at 6 (citing Cafasso, U.S. ex rel. v. General Dynamics C4
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Systems, Inc., 637 F.3d 1047, 1056 (9th Cir. 2011).
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While Defendants have shown that the law compels filing of an RVR after a rules
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violation and that the inmate should be placed in Ad Seg if he presents a security threat, the
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existence of those rules does not establish Defendants’ contention that they believed the
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settlement offer was a rules violation and created a security threat. Indeed, at the summary
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judgment stage the court cannot say that the letter Plaintiff wrote would “obviously” cause the
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librarians to feel concerned for their safety and file RVRs that persuaded Defendant Marrero to
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place Plaintiff in Ad Seg for over two months. Certainly retaliatory motive has not been
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established, but it is for the trier of fact to determine whether such adverse action was motivated
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by Plaintiff’s protected conduct.
As noted previously, Defendants also contend that Plaintiff cannot avoid summary
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judgment since their declarations as to their motive are “uncontroverted.” It is true here—as it is
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with many legal claims that turn on an actor’s motive—
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that Plaintiff has not presented direct evidence tending to establish that Defendants took
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disciplinary action with a retaliatory motive. However, Defendants ignore Ninth Circuit law
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establishing that circumstantial evidence can create an inference sufficient to defeat a motion for
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summary judgment. McCollum, 647 F.3d at 882.
Generally, plaintiffs in a retaliation suit can point to proximity in time as
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circumstantial evidence of retaliatory motive. This case differs from the typical suit because the
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punishment was admittedly the result of action related to Plaintiff’s protected First Amendment
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activity. Due to this fact, some inference of retaliatory motive is already present. Thus, while
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proximity of time could be used as circumstantial evidence here, it need not be relied upon in
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order to raise the required inference. Furthermore, Defendants’ lack of support for their claims
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of fearfulness could lead a factfinder to reasonably conclude that such alternative explanations
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are pretextual.2
In sum, while it is true that Plaintiff has put forth no direct evidence to controvert
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Defendants’ declarations, the circumstantial evidence is strong enough to create a reasonable
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disagreement as to whether Plaintiff’s punishment was the result of retaliatory motives.
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The analysis in this section also applies the final Rhodes factor, which examines whether
Defendants acted in an effort to advance a legitimate correctional goal. While institutional security is a
legitimate correctional goal, Morrison v. Hall, 261 F.3d 896, 907 (9th Cir. 2001), the parties dispute
whether Plaintiff’s punishment was a genuine attempt to advance that goal.
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c. Chilling Effect
Defendants argue that Plaintiff’s punishment caused no chilling effect, asserting that
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his small claims suit was dismissed because of a failure to appear rather than because of any
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punishment. However, the court is not to look to the success of an individual case in order to
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determine whether a chilling effect existed. Instead, it must assess “whether an official’s acts
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would chill or silence a person of ordinary firmness from future First Amendment activities.”
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Rhodes, 408 F.3d at 568 (emphasis in original) (citations omitted). Thus, while confinement in
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Ad Seg may not prevent a prisoner from engaging in protected conduct, its punitive nature
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clearly could create a chilling effect. See Hines v. Gomez, 108 F.3d 265, 269 (finding that ten
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day confinement and television loss was sufficient for retaliation claim). While it is true that
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Plaintiff has once again failed to present direct evidence of a chilling effect, Defendants’
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arguments concerning Plaintiff’s ability to file the small claims suit do not address the proper
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standard—they focus on Plaintiff’s actual filing of the lawsuit and its subsequent dismissal rather
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than the question of whether two months of Ad Seg would discourage an ordinary person from
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exercising his First Amendment rights. Therefore, Defendants’ motion fails to sufficiently
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demonstrate the lack of a triable issue of fact, and Plaintiff need not present evidence in order to
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survive summary judgment. See Nissan Fire, 210 F.3d at 1105 (explaining that if a moving party
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fails to negate essential element of claim, nonmoving party is not required to present evidence in
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support of opposition).
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2. Intent to Harm
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Defendants also tack on a very short separate argument summarily asserting that in
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order to succeed, Plaintiff must “show that [Defendants] acted intentionally to harm him.” Def.
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SJ Mtn. at 10 (citing County of Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998); Toguchi v.
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Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)). Defendants’ objective in making this argument is
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unclear. In any event, they have failed to establish that if the court finds under Rhodes that
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Defendants have taken an adverse action because of Plaintiff’s protected conduct, Plaintiff must
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make an additional showing of intentional harm. To the extent that it is possible that Defendants
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negligently or recklessly punished Plaintiff because of his engagement in protected conduct, the
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court finds that there is a triable issue of fact as to whether their actions intentionally caused
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harm.
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3. Qualified Immunity
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Alternatively, Defendants argue that they are protected by qualified immunity. In
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determining whether qualified immunity is available, the court should first decide whether a
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constitutional right has been violated, and next look to whether the right was clearly established.
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Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007). The answer to the second inquiry depends
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on whether a reasonable official in Defendants’ situation would understand that his actions
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would violate a constitutional right. Id. The Ninth Circuit has held that prisoners cannot legally
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be punished for exercise of their right to engage in federal civil rights litigation, and that “the
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prohibition against retaliatory punishment is ‘clearly established law’ . . . for qualified immunity
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purposes.” Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (citations omitted).
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As discussed above, Plaintiff’s First Amendment right has been violated if his
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allegations are true. Defendants argue that even if a constitutional violation has been established,
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qualified immunity nevertheless protects them because “Plaintiff has not shown under the
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specific facts of this case that he had a ‘clearly established’ right to avoid the actions that were
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taken in compliance with prison regulations, even if the charges against him were later found to
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be mistaken.” Def. SJ Mtn. at 11. Further, Defendants argue that Plaintiff has not shown that
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“he had a ‘clearly established’ right to expect Defendants not to comply with their required
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duties under the applicable law and regulations.” Id. This argument fails because it assumes that
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Defendants’ declarations as to motive can be automatically taken as true. If that were the case,
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summary judgment would be appropriate under Rhodes and the qualified immunity inquiry
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would be unnecessary. Instead, there is a factual dispute over whether Plaintiff was punished
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based on a rules violation or in retaliation for his small claims suit.
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Defendants correctly state that there is no clearly established right to avoid legitimate
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punishment. However, the question is whether, assuming that the constitutional right has been
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violated, it would have been clear to a reasonable prison official that his conduct was unlawful at
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the time it occurred. Defendants have once again failed to make any argument corresponding to
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the proper standard: whether it would have been clear to a reasonable prison official that
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punishment motivated by retaliation for filing the lawsuit would be unlawful. Here, it would
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have been clear to Defendants that punishing Plaintiff in retaliation for filing his small claims
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lawsuit would violate the law. See Pratt, 65 F.3d at 806.
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III. CONCLUSION
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Defendants have not successfully established the absence of a genuine issue of
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material fact as to whether Plaintiff’s punishment was motivated by retaliatory motive.
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Similarly, Defendants cannot establish qualified immunity at the summary judgment stage—if
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the facts occurred as alleged in the complaint, Defendants’ actions clearly violated a
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constitutional right. The motion for summary judgment is DENIED.
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IT IS SO ORDERED.
Dated: April 12, 2012
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______________________________
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Jeffrey T. Miller
Jeffr
Je frey Miller
iller
United States District Judge
United
es
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