Opinion
CV 07-4486 GW (AS)
06-24-2022
CHRISTOPHER HARBRIDGE, Plaintiff, v. ARNOLD SCHWARZENEGGER, et al., Defendants.
FINAL REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE
ALKA SAGAR UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
INTRODUCTION
Effective July 11, 2007, pro se plaintiff Christopher Harbridge (“Plaintiff”) filed a complaint pursuant to 42 U.S.C. § 1983 (“Complaint”), raising numerous claims against multiple defendants, including, as relevant here, a retaliation claim (“Claim 14”) against Defendant S.L. Reed (“Reed”), who was at all relevant times employed as a Correctional Captain at California State Prison, Los Angeles County, in Lancaster, California (“CSP-LAC”). (Dkt. No. 10).
On August 19, 2008, the Court dismissed Plaintiff's claims involving conduct occurring at Pleasant Valley State Prison without leave to amend and dismissed the remainder of Plaintiff's claims, including Claim 14, with leave to amend. (Dkt. Nos. 19-20). Plaintiff subsequently filed a First Amended Complaint (“FAC”), which was ordered served on multiple defendants, including Reed, who waived service of summons. (Dkt. Nos. 31, 33, 52). With regard to Claim 14, the FAC stated “CLAIM 14: Dismissed by District Court.” (FAC, ¶ 51). Plaintiff thereafter filed a Second Amended Complaint (“SAC”) and a Third Amendment Complaint (“TAC”) (Dkt. Nos. 109, 132), both of which included the same statement regarding Claim 14. (SAC, ¶ 51; TAC, ¶ 52). Ultimately, all Plaintiff's claims were resolved against him, either through dismissal or on summary judgment. (See Dkt. Nos. 19-20, 101, 106, 146, 153, 243, 248-49).
Plaintiff appealed the Court's Judgment to the Ninth Circuit Court of Appeals which, on October 3, 2018, reversed and remanded “for further proceedings” as to Claim 14 “against Reed only.” (Dkt. No. 254). The Ninth Circuit's mandate issued on October 25, 2018. (Dkt. No. 255).
Plaintiff named two other correctional officers - Nungary and Porter - as defendants in Claim 14; however, the Ninth Circuit concluded that the Complaint was properly dismissed as to these defendants. (See Complaint, ¶¶ 15-16, 74-76; Dkt. No. 254 at 5).
On March 13, 2019, the Court ordered Reed to file a responsive pleading. (Dkt. No. 258). On May 13, 2019, Reed filed a combined Motion for Summary Judgment based on Plaintiff's Failure to Exhaust Administrative Remedies and Motion to Dismiss the Complaint. (Dkt. No. 263). On August 3, 2020, the Court denied the combined Motions and ordered Reed to file an Answer to the Complaint. (Dkt. Nos. 273, 276). Reed filed an Answer on August 31, 2020. (Dkt. No. 279).
On September 20, 2021, Reed filed a Notice of Motion and Motion for Summary Judgment with a Memorandum of Points and Authorities (“Mot. Mem.”), Defendant's Statement of Uncontroverted Facts and Conclusions of Law, the Declaration of Kandice Jung (“Jung Decl.”) with exhibit, the Declaration of J. Garcia (“Garcia Decl.”) with exhibits, the Declaration of S.L. Reed (“Reed Decl.”) with exhibits, a Rand notice,and a proposed Judgment. (Dkt. No. 285). That same day, Reed also filed a Request for Judicial Notice (“RJN”). (Dkt. No. 286).
Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc).
In her RJN, Reed requests the Court take judicial notice of portions of the California Code of Regulations (“C.C.R.”) addressing various custody provisions. The RJN is granted. See Harrison v. Kernan, 971 F.3d 1069, 1071 n.2 (9th Cir. 2020) (taking judicial notice of regulatory history of prison regulation); Navajo Nation v. Dep't of the Interior, 876 F.3d 1144, 1153 n.3 (9th Cir. 2017) (“The Court may take judicial notice of . . . regulations not included in the plaintiff's complaint.”); Mangiaracina v. Penzone, 849 F.3d 1191, 1193 n.1 (9th Cir. 2017) (taking judicial notice of jail's rules and regulations for inmates); United States v. Thornton, 511 F.3d 1221, 1229 n.5 (9th Cir. 2008) (taking judicial notice of a Bureau of Prisons' policy statement).
On September 22, 2021, the Court provided Plaintiff with a Rand notice. (Dkt. No. 287).
On January 10, 2022, Plaintiff filed an Opposition to the Summary Judgment Motion (“Opp.”), a Response to Defendant's Statement of Uncontroverted Facts and Conclusions of Law (“Plaintiff's Response”), and the Declaration of Christopher Harbridge to Authenticate Documents (“Harbridge Decl.”) with Exhibits. (Dkt. Nos. 292-94).
On March 4, 2022, Reed filed a Reply and a Response to Plaintiff's Response. (Dkt. Nos. 299-300).
On March 30, 2022, the Court issued a Report and Recommendation recommending the action be dismissed with prejudice. (Dkt. No. 302). On May 23, 2022, Plaintiff filed Objections to the Report and Recommendation. (Dkt. No. 305). On June 8, 2022, Reed filed a Response to Plaintiff's Objections. (Dkt. No. 308). The Court now issues this Final Report and Recommendation, which considers Plaintiff's Objections and Reed's Response and addresses certain of the arguments they make, but “continues to find no merit to [Claim 14] and to recommend . . . dismissal of the action.” McElvain v. Lewis, 283 F.Supp.2d 1104, 1112 (C.D. Cal. 2003).
II.
SUMMARY OF FACTS
Plaintiff's remaining claim involves a retaliatory threat Reed allegedly made to Plaintiff on October 21, 2003. Many of the facts underlying this claim are undisputed. For instance, the parties agree that at all relevant times, Plaintiff, an inmate detained by the California Department of Corrections and Rehabilitation (“CDCR”), was housed at CSP-LAC Facility C and Reed was the Facility C Captain. (Reed Decl., ¶ 4; Jung Decl., ¶ 6, Exh. A (Deposition of Christopher Charles Harbridge (“Harbridge Depo.”), p. 39)); Complaint, ¶¶ 4, 12, 38; Plaintiff's Response, ¶¶ 1-2).
Plaintiff has also attached a copy of his deposition as Exhibit D to his Declaration to Authenticate Documents. (See Harbridge Depo., ¶ 4, Exh. D).
Since Plaintiff verified “under penalty of perjury” that the relevant allegations in his Complaint and the statements in his Response are “true and correct,” 28 U.S.C. § 1746; Schroeder v. McDonald, 55 F.3d 454, 460 & n.10 (9th Cir. 1995), the Court must consider them in addressing the pending summary judgment motion. Shepard v. Quillen, 840 F.3d 686, 687 n.1 (9th Cir. 2016); see also King v. Cnty. of Los Angeles, 885 F.3d 548, 553 (9th Cir. 2018) (“Because King was pro se, we consider as evidence all factual statements made in motions and pleadings that were based on his personal knowledge, admissible in evidence, and attested to under penalty of perjury.”); Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc) (“A plaintiff's verified complaint may be considered as an affidavit in opposition to summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence.”).
The parties also agree that in October 2003, possible inmate transfers were discussed at Unit Classification Committee (“UCC”) and Institutional Classification Committee (“ICC”) hearings. (Reed Decl., ¶ 6; Plaintiff's Response, ¶¶ 3-4; see also Garcia Decl., ¶ 5). A UCC hearing reviews “each inmate's case at least annually to consider the accuracy of the inmate's classification score, custody designation, program, work and privilege group, and facility placement, including recommendation for transfer.” (Reed Decl., ¶ 6; Plaintiff's Response, ¶ 3; 15 C.C.R. § 3376(d)(2)(A) (2003)). At an ICC hearing, “various issues are reviewed, including an inmate's administrative segregation placement, the identification of an inmate as a management concern, and the term for confinement in a Secured Housing Unit.” (Reed Decl., ¶ 6; Plaintiff's Response, ¶ 4; 15 C.C.R. §§ 3335(c), 3341.5(c)(2), 3377.2(a)(1)(2003)). In either case, the inmate is present at, and provided advanced notice of, the hearing, and the hearing is noted on a Form “‘CDC 262' (Custody Classification - Assignments[,]” which “reflects the date of a committee [hearing], type of committee, custody, class score, assignment, work group, privilege level, and committee action.” (Garcia Decl., ¶ 10; Reed Decl., ¶ 6; Plaintiff's Response, ¶ 5; 15 C.C.R. § 3375(e-f) (2003)). Every classification committee decision is documented on a Form “128-G Classification Chrono[,]” which “reflects information regarding a committee hearing, including the reason or purpose for the committee hearing, the action taken, the name, title, and signature of the committee's chairperson, the name [and] titles of staff who participated in the decision, the name, title, and signature of the committee's recorder, and the date of the action.” (Garcia Decl., ¶ 7; Reed Decl., ¶ 6; 15 C.C.R. § 3375(g)(2003)).
There are many reasons that inmates can be transferred to different institutions, including disciplinary issues, changes to classification score, potential enemy concerns, mission changes at an institution, hardships, or because of an inmate's medical condition. (Reed Decl., ¶ 21; Harbridge Depo., pp. 40-41; Plaintiff's Response, ¶ 63).
Moreover, inmates receive annual reviews, which can be conducted by an ICC or UCC. (Garcia Decl., ¶ 5). When a committee conducts an annual review, the committee completes a Form 128-G as well as a “CDC 840 Reclassification Score Sheet[,]” which “reflects information including the relevant period of dates, favorable and unfavorable behavior since the last review, computation of score, and placement.” (Garcia Decl., ¶¶ 6, 8; Plaintiff's Response, ¶ 6).
As a Facility C Captain, Reed often attended ICC and UCC hearings, including for Plaintiff. (Reed Decl., ¶ 7; Plaintiff's Response, ¶ 8). For example, on October 31, 2002, Reed participated in an ICC hearing for Plaintiff in which the ICC decided to release Plaintiff from the Administrative Segregation Unit (“ASU”) after he had been placed in the ASU for allegedly inciting a riot. (Garcia Decl., ¶ 11, Exh. B; Reed Decl., ¶¶ 9-10, Exh. G; Plaintiff's Response, ¶ 9).
Plaintiff disputes that he incited a riot and instead states he was placed in the ASU “for an investigation into orchestrating a demonstration” - a charge that was dismissed for lack of evidence, which led to Plaintiff's release from the ASU. (Plaintiff's Response, ¶ 9(a)). This dispute is not material to Plaintiff's claim.
Thereafter, on November 13, 2002, Reed chaired a UCC hearing for Plaintiff in which the UCC decreased Plaintiff's placement score by six points to 60 because he had two qualifying periods with no serious Rules Violations Reports and one qualifying period of “‘average/above average work/school performance.'” (Reed Decl., ¶ 11, Exh. H; Plaintiff's Response, ¶ 10).
Generally, an inmate is assigned to a facility with a security level that corresponds to the inmate's placement score so that an inmate with a placement score of 0-18 is placed at a Level I facility, an inmate with a placement score of 19-27 is placed at a Level II facility, an inmate with a placement score of 28-51 is placed at a Level III facility, and an inmate with a placement score of 52 or greater is placed at a Level IV facility. 15 C.C.R. § 3375.1(a) (2003). Thus, despite the reduction, Plaintiff's placement score still reflected that assignment to a Level IV facility was warranted.
On May 2, 2003, Reed chaired a UCC hearing for Plaintiff which resulted in Plaintiff being removed from his work/training program and assigned to C-Status due to multiple Rules Violation Reports. (Reed Decl., ¶ 12, Exh. I; Plaintiff's Response, ¶ 11).
An inmate placed on C-Status has less privileges than inmates on A- or B-Status. 15 C.C.R. § 3044(c-f) (2003).
On July 4, 2003, Plaintiff was placed in disciplinary detention in the ASU; however, on July 7, 2003, Reed conducted an administrative review of this decision and released Plaintiff from the ASU. (Garcia Decl., ¶¶ 12-13, Exhs. C-D; Reed Decl., ¶ 13; Harbridge Decl., ¶ 7, Exh. G).
It is also undisputed that no committee meeting involving Plaintiff occurred on October 21, 2003 - the date of the alleged threat. (Garcia Decl., ¶ 15; Reed Decl., ¶ 8; Plaintiff's Response, ¶¶ 12, 30; Harbridge Depo., pp. 28, 34). However, on November 5, 2003, Plaintiff had an annual review, which resulted in no changes to Plaintiff's vocational or educational programs. (Garcia Decl., ¶ 14, Exhs. E-F; Plaintiff's Response, ¶ 16).
Plaintiff described his pre-October 21, 2003 interactions with Reed as “pretty normal” in that “for instance, if she's chairing a UCC hearing that she would perform a normal role, it might have been negative from [Plaintiff's] perspective because [he] might not [have] agree[d] with everything that the committee decide[d], but nothing contentious.” (Harbridge Depo., pp. 66-67; Plaintiff's Response, ¶¶ 13-14). Furthermore, Reed never threatened to transfer Plaintiff at any prior committee hearings. (Plaintiff's Response, ¶ 12).
On January 21, 2004, Reed chaired a UCC hearing for Plaintiff, in which a program review was conducted. (Reed Decl., ¶ 14; Plaintiff's Response, ¶ 61). Plaintiff was not transferred based on this hearing. (Reed Decl., ¶ 14; Plaintiff's Response, ¶ 61). Indeed, Plaintiff was not transferred from CSP-LAC until 2005, when he was sent to Pleasant Valley State Prison because the CSP-LAC yard in which he had been housed was converted to a reception yard and all the prisoners from that yard were transferred. (Harbridge Depo., pp. 39, 76; Plaintiff's Response, ¶¶ 60, 62).
All of this is undisputed. However, the parties do dispute what, if anything, occurred on October 21, 2003. In particular, Plaintiff claims that on October 21, 2003, he was summoned into the Captain's Office in CSP-LAC Facility C, where Reed was waiting with two other correctional officers, Nungary and Porter. (Complaint, ¶ 75; Plaintiff's Response, ¶ 17; Harbridge Depo., pp. 31, 33). Reed told Plaintiff that he “must not be very happy there since [he kept] writing letters complaining, and therefore she [was] going to put [Plaintiff] up for transfer to another prison.” (Complaint, ¶¶ 74-75; Plaintiff's Response, ¶¶ 18-19; Harbridge Depo., pp. 27, 34, 37, 42, 46-47). Plaintiff responded that he is in prison and not entitled to be happy, but he is entitled to be free from retaliation for filing complaints and writing letters. (Harbridge Depo., pp. 37-38, 42, 49; Plaintiff's Response, ¶ 24). Reed then said she was “‘not retaliating[,]'” but otherwise provided no explanation for her statement. (Harbridge Depo., pp. 38, 42-43; Plaintiff's Response, ¶¶ 25-26). Plaintiff answered that “‘If you . . . transfer me it would be retaliation because I did not request to be transferred.'” (Harbridge Depo., p. 38; Plaintiff's Response, ¶ 27). This conversation was “very brief” and Plaintiff was not in the Captain's Office for long. (Harbridge Depo., p. 41; Plaintiff's Response, ¶ 28).
Reed referenced letters and complaints without identifying any specific letters or complaints. (Harbridge Depo., pp. 55-57, 63-64; Plaintiff's Response, ¶¶ 20-22).
Plaintiff asserts that Reed wanted to transfer him because of his complaints, Reed's statement was made for intimidation purposes in that she was saying that if Plaintiff did not stop writing letters and complaints, he would not see his family, and Reed had the ability to put him up for a transfer, even over Plaintiff's objection. (Harbridge Depo., pp. 28, 70-71; Plaintiff's Response, ¶¶ 23, 59-59(c), 65). Plaintiff believes that Reed's statement was made “not for a legitimate penological goal, but to . . . silence [Plaintiff] in order to keep hidden from the public and government officials the misconduct, crimes, incompetence, mismanagement, fraud, corruption, etc., of prison staff.” (Complaint, ¶ 74).
A transfer would have moved Plaintiff further away from his family. (Complaint, ¶ 74). Moreover, based on conversations with Plaintiff, Porter knew Plaintiff's father lived nearby, had health issues and could not travel long distances, and Plaintiff suggests Porter would have conveyed this information to Reed; however, Plaintiff has no personal knowledge that Reed was aware of his conversations with Porter, Plaintiff's father's health issues, or that Plaintiff had family members living nearby CSP-LAC. (Harbridge Depo., pp. 31, 70-72; Plaintiff's Response, ¶¶ 64, 66).
Plaintiff states that, before the threat, he wrote an anonymous report called “California's Prison Scandal,” which was mailed to high-ranking state officials and “exposed a lot of the misconduct and problems that were occurring in [CSP-LAC] at that time.” (Harbridge Depo., pp. 49-50, 53; Plaintiff's Response, ¶¶ 34, 37). Plaintiff does not believe Reed was mailed a copy of the report and he has no specific knowledge that Reed was aware of the report, but believes that she was based on her position as the highest-ranking officer at Facility C, which was the facility the report was about. (Harbridge Depo., pp. 51-52; Plaintiff's Response, ¶¶ 36, 40). Plaintiff also does not know whether Reed knew Plaintiff wrote the report, but he “was definitely on the suspect list.” (Harbridge Depo., p. 52; Plaintiff's Response, ¶ 41). Reed was not specifically mentioned in the report. (Harbridge Depo., pp. 54-55; Plaintiff's Response, ¶ 35).
Plaintiff states that Reed's threat made him not want to publish anything and caused him a lot of stress and anxiety because he thought he might get transferred. (Harbridge Depo., pp. 77, 92; Plaintiff's Response, ¶¶ 57-57(a)). He also suggests he might have lost income because of the chilling effect of Reed's action, even though he had never earned income for his writing or tried to publish any articles prior to the threat. (Harbridge Depo., p. 83; Plaintiff's Response, ¶¶ 52, 54-55(a)). Nevertheless, Plaintiff continued to write 602s. (Harbridge Depo., pp. 79, 92; Plaintiff's Response, ¶¶ 50-50(a)). Plaintiff also acknowledges that no one has specifically tried to stop him from publishing anything since October 21, 2003. (Harbridge Depo., p. 86).
During his deposition, Plaintiff noted that before his imprisonment, he had experience as a journalist at Moorpark College, and “due to [his] experience as a journalist, chilling [his] free speech is much more significant [than] chilling [the] free speech of your average prisoner who is illiterate and uneducated.” (Harbridge Depo., pp. 16-17, 20-21). Plaintiff further asserted that:
There's a lot I can accomplish as a writer in prison. I have access to all the stories that journalism in the free world wish they had access to, but they can't get inside the prison to get these stories. . . . [¶] For Defendant Reed to chill my free speech has a much greater impact on me and me trying to rehabilitate my reputation, me trying to rehabilitate my career, and I probably could have made hundreds of thousands of dollars over the years just putting my articles online and soliciting donations could have given me a lot more than what I'm asking for in this settlement offer over the years.(Harbridge Depo., p. 18).
“Form 602 is entitled ‘Inmate/Parolee Appeal Form' and is used by prisoners to file a grievance with prison staff.” Davies v. Valdes, 462 F.Supp.2d 1084, 1088 n.5 (C.D. Cal. 2006).
Reed denies that the alleged October 21, 2003 meeting occurred and states she never threatened to transfer Plaintiff to another institution or tried to intimidate Plaintiff. (Reed Decl., ¶¶ 5, 8, 19-20). Reed acknowledges that in her “capacity as Facility Captain, [she] responded to certain 602s that Plaintiff filed and at least one letter Plaintiff wrote to the Warden's office[,]” but she never referenced any of Plaintiff's 602s, complaint letters, or any anonymous report Plaintiff claims to have written during any meeting with Plaintiff. (Reed Decl., ¶¶ 16-17; see also Plaintiff's Response, ¶¶ 44-47; Harbridge Decl., ¶¶ 5, 15, 18, Exhs. E, O, R). Indeed, Reed was unaware that Plaintiff had written “California's Prison Scandal.” (Reed Decl., ¶ 15). Nor does Reed recall ever wanting to transfer Plaintiff to another prison or knowing anything about Plaintiff's father's health condition. (Reed Decl., ¶¶ 18-19). Reed states that inmates often file 602s and make complaints against correctional staff, but she has never used such complaints as the basis for transfer decisions, has never threatened to transfer any inmate because the inmate filed 602s or complaint letters, and has never held a meeting pretending it was a committee hearing to intimidate or threaten an inmate. (Reed Decl., ¶¶ 20, 23-24).
III.
STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure authorizes the granting of summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The standard for granting a motion for summary judgment is essentially the same as for granting a directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Judgment must be entered “if, under the governing law, there can be but one reasonable conclusion as to the verdict.” Id. at 250.
The moving party has the initial burden of identifying relevant portions of the record demonstrating the absence of a fact or facts necessary for one or more essential elements of each cause of action upon which the moving party seeks judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Material facts are those which may affect the outcome of the case.” Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); In re Caneva, 550 F.3d 755, 760 (9th Cir. 2008). “A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party.” Long, 442 F.3d at 1185; Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). If the moving party does not bear the burden of proof at trial, the moving party may discharge its burden by showing “there is an absence of evidence to support the nonmoving party's case.” Celotex Corp., 477 U.S. at 325; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc).
If the moving party sustains its burden, the burden then shifts to the nonmovant to cite to “particular parts of materials in the record” demonstrating a material fact is “genuinely disputed.” Fed.R.Civ.P. 56(c)(1); Celotex Corp., 477 U.S. at 324; Anderson, 477 U.S. at 256. Summary judgment must be granted for the moving party if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322; see also Anderson, 477 U.S. at 252 (parties bear the same substantive burden of proof as would apply at a trial on the merits).
“[I]n ruling on a motion for summary judgment, the nonmoving party's evidence ‘is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); Groh v. Ramirez, 540 U.S. 551, 562 (2004). However, summary judgment cannot be avoided by relying solely on “conclusory allegations [in] an affidavit.” Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (more than a “metaphysical doubt” is required to establish a genuine dispute of material fact). “The mere existence of a scintilla of evidence in support of the plaintiff's position” is insufficient to survive summary judgment; “there must be evidence on which the [fact finder] could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
IV.
DISCUSSION
A “corrections officer may not retaliate against a prisoner for exercising his First Amendment right to report staff misconduct.” Shepard v. Quillen, 840 F.3d 686, 688 (9th Cir. 2016); see also Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (“Prisoners have a First Amendment right to file grievances against prison officials and to be free from retaliation for doing so.”). When a prisoner claims retaliation, he is required “to show that (1) ‘a state actor took some adverse action . . . (2) because of (3) [the] prisoner's protected conduct, . . . that such action (4) chilled [his] exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.'” Shepard, 840 F.3d at 688 (quoting Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)); Entler v. Gregoire, 872 F.3d 1031, 1040 (9th Cir. 2017).
Here, the parties dispute whether the October 21, 2003 meeting occurred. Plaintiff contends he was summoned into Reed's office where she threatened him in an attempt to stop him from filing grievances and writing complaint letters by telling him that he “must not be very happy there since [he kept] writing letters complaining, and therefore she [was] going to put [Plaintiff] up for transfer to another prison.” (Complaint, ¶¶ 74-75; Plaintiff's Response, ¶¶ 18-19; Harbridge Depo., pp. 27, 34, 37, 42, 46-47). Reed, however, denies that this meeting occurred and states she never threatened to transfer Plaintiff to another institution or tried to intimidate Plaintiff. (Reed Decl., ¶¶ 5, 8, 18-20, 23-24). Obviously, one party's version of these events is incorrect, but credibility determinations are for the jury, not a court ruling on a summary judgment motion. Anderson, 477 U.S. at 255; Estate of Lopez by and through Lopez v. Gelhaus, 871 F.3d 998, 1009 n.10 (9th Cir. 2017); see also Fuller v. Idaho Dep't of Corrs., 865 F.3d 1154, 1161 (9th Cir. 2017) (“In assessing whether a genuine issue of material fact exists for trial, we do not weigh the evidence, nor make factual or credibility determinations.”); Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017) (discounting of inmate's evidence “constitutes the sort of credibility finding properly left for a jury”); Nelson v. Davis, 571 F.3d 924, 929 (9th Cir. 2009) (“A judge must not grant summary judgment based on his determination that one set of facts is more believable than another.”). Therefore, whether the meeting occurred and, more importantly, whether Reed made the statement Plaintiff attributes to her, are genuine issues of material fact inappropriate for resolution on summary judgment. See Fuller, 865 F.3d at 1161 (“‘[W]here evidence is genuinely disputed on a particular issue - such as by conflicting testimony - that issue is inappropriate for resolution on summary judgment.” (quoting Zetwick v. Cnty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017))).
Nevertheless, Reed contends summary judgment is appropriate because “[e]ven if Plaintiff engaged in protected conduct by filing inmate grievances and writing letters and an anonymous report critical of CDCR, Plaintiff cannot establish the other elements of a retaliation claim and cannot create a dispute of fact as to the remaining elements.” (Mot. Mem. at 11). More particular, Reed argues that: (a) she did not take an adverse action against Plaintiff; (b) there are legitimate penological goals in telling an inmate he may be transferred to another institution; and (c) the alleged threat would not have chilled a person of ordinary firmness. (Id. at 11-18). Additionally, Reed asserts that she is entitled to qualified immunity. (Id. at 20-24).
“The filing of an inmate grievance is protected conduct.” Watison, 668 F.3d at 1114; Shepard, 840 F.3d at 689.
A. Adverse Action
Even though an “adverse action need not be an independent constitutional violation” and the “‘mere threat of harm can be an adverse action[,]'” Watison, 668 F.3d at 1114 (quoting Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (italics omitted); Shepard, 840 F.3d at 689, Reed contends Plaintiff cannot establish adverse action. (Mot. Mem. at 11-12). Instead, according to Reed, under Plaintiff's version of events, “Reed did not threaten to transfer Plaintiff if he did not stop filing grievances and complaining. Rather she commented that she would transfer him because he seemed unhappy and referenced his complaints and letters in reference to his unhappiness.” (Id. at 12). Reed asserts that “[w]ithout more, the comment attributed to Defendant Reed is not a threat and not actionable in a retaliation case.” (Id.).
While Reed asserts that “Plaintiff cannot produce any evidence that the alleged comments rose to the level of a threat[,]” (Mot. Mem. at 12), this argument ignores Reed's alleged statement itself as well as Plaintiff's perception of it. (See, e.g., Complaint, ¶¶ 74-76; Plaintiff's Response, ¶¶ 18, 57; Harbridge Depo. at 37, 56-57).
Reed's argument requires the Court to not consider the context in which the alleged statement was made or the possible implicit meaning of the words uttered. Reed asserts that the statement attributed to her can only be interpreted as an expression of concern for Plaintiff's well being and not as an implied threat, but she cites no relevant authority supporting this contention. Unsurprisingly, Plaintiff disagrees with Reed's argument and has presented evidence demonstrating he believes - and has always believed - Reed's statement was a threat.(See, e.g., Complaint, ¶¶ 74-76; see also Plaintiff's Response, ¶ 57(a) (“Defendant Reed did not comment on transferring Plaintiff, she threatened to transfer Plaintiff due to his legitimate First Amendment [a]ctivities.”)). Thus, unless the Court concludes that no reasonable jury could interpret Reed's statement as an implied threat to transfer Plaintiff if he continued to exercise his First Amendment rights, Reed's contention is without merit.
Reed presents no evidence stating that this was her intention. Instead, she denies meeting with Plaintiff on October 21, 2003, or ever threatening to transfer or trying to intimidate Plaintiff. (Reed Decl., ¶ 5).
Among other things, the day after the alleged threat was made, Plaintiff filed a 602 against Reed (as well as Porter and Nungary), reciting Reed's alleged statement to Plaintiff and complaining that Reed and the other officers had retaliated against him by attempting to intimidate him to get him to stop writing letters and complaints. (Harbridge Decl., ¶ 1, Exh. A).
Based on the content and context of the statement allegedly made - including Plaintiff's awareness of Reed's ability to put him up for a transfer if she decided to do so (see Harbridge Depo., pp. 28, 72-73; Plaintiff's Response, ¶¶ 59(a-c); see also Reed Decl., ¶¶ 6-7) - a reasonable jury could conclude that Reed's alleged statement was an implied threat to transfer Plaintiff if he continued writing complaints and filing grievances. Indeed, the Ninth Circuit described Plaintiff's verified Complaint as alleging “Reed threatened him with a prison transfer if he continued to write letters of complaint, which is sufficiently adverse to state a retaliation claim even if the threat was never carried out.” Harbridge v. Schwarzenegger, 752 Fed.Appx. 395, 398 (9th Cir. 2018). And even if this was not the case, the Court concludes that there is a genuine issue of material fact as to whether Reed's statement constitutes an implied threat. See Brodheim, 584 F.3d at 1270-71 (defendant's warning that plaintiff should be “careful” about what he writes in grievances raised “a genuine issue of material fact” as to whether the warning was an implicit “threat of transfer or disciplinary action if he was not ‘careful' as to what he wrote in his grievances”).
Plaintiff's awareness of Reed's ability to have him transferred is one factor a jury might consider in assessing whether Plaintiff reasonably interpreted Reed's alleged statement as threatening. As one court has explained in a different context,
whether we view a statement as threatening may turn on what we know about the speaker. Suppose that someone looks you in the eye and says: “I'm going to take care of you.” In assessing the threat level we should ascribe to this statement, it helps to know whether the speaker is Florence Nightingale or Tony Soprano. Beyond the identity of the speaker, though, there are countless, unseen things that inform how our brains come to perceive a situation as threatening. In other words, an otherwise-innocuous statement might be reasonably perceived as threatening only because of the “tone of the [speaker's] voice when he convey[s] the threats,” or because of the speaker's affect, or because of something the speaker is holding . . . or doing. . . .United States v. Hussaini, 2022 WL 138474, *8 (S.D. Fla. 2022) (citations omitted; italics in original).
Plaintiff's description of the statement Reed allegedly made has remained constant from his first verified Complaint, which the Ninth Circuit considered on appeal (and which is part of Plaintiff's evidence in opposition to summary judgment), see Harbridge, 752 Fed.Appx. at 398 (“The district court dismissed Harbridge's retaliation claim against Reed in its initial screening order before any response by the defendants. . . .”), through his deposition and the evidence he presented in opposing summary judgment. (See, e.g., Complaint, ¶ 75; Harbridge Depo. at 27, 34, 37, 42, 46-47; Plaintiff's Response, ¶ 18-19).
Alternately, Reed might be arguing that her statement cannot be considered a threat because she did not explicitly state she would transfer Plaintiff if he continued to file grievances and letters, and only explicit threats can constitute an adverse action in the retaliation context. (Mot. Mem. at 11-12). If so, she is incorrect. Plaintiff “need not need establish that [Reed's] statement contained an explicit, specific threat of discipline or transfer if he failed to comply.” Brodheim, 584 F.3d at 1270. Rather, an adverse action is established when “‘the record, taken in the light most favorable to the plaintiff, reveals statements by the defendant that a reasonable factfinder could . . . interpret as intimating that some form of punishment or adverse regulatory action would follow.'” Id. (citation omitted). Here, taking the evidence in the light most favorable to Plaintiff, a reasonable factfinder could interpret Reed's statement as a threat to transfer Plaintiff if he continued filing complaints, as the Ninth Circuit previously concluded. Harbridge, 752 Fed.Appx. at 398; see also Brodheim, 584 F.3d at 1270 (“By its very nature, a statement that ‘warns' a person to stop doing something carries the implication of some consequence of a failure to heed that warning.”). Accordingly, the record is “sufficient to establish a genuine issue of material fact as to whether [Reed's statement] constituted an adverse action.” Brodheim, 584 F.3d at 1270.
B. Legitimate Penological Reasons
“A viable claim for retaliation requires, in part, that an inmate demonstrate that the prison officials' adverse action does not reasonably advance a legitimate correctional goal.” Nevada Dep't of Corrs. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011); see also Brodheim, 584 F.3d at 1271 (“To prevail on a retaliation claim, a prisoner must show that the challenged action ‘did not reasonably advance a legitimate correctional goal.'”); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (A “successful retaliation claim requires a finding that ‘the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals.'” (citation omitted)). “The plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains.” Pratt, 65 F.3d at 806; Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003).
Here, Reed contends that even if she “made a comment that Plaintiff would be transferred because he seemed unhappy at the institution, such comment would have advanced legitimate penological goals” because “there are legitimate penological reasons for telling an inmate he may be transferred to another institution.” (Mot. Mem. at 12-13). Although it is undoubtedly true, as the parties agree, that inmates can be transferred to other institutions for various reasons (Reed Decl., ¶ 21; Harbridge Depo., pp. 40-41; Plaintiff's Response, ¶ 63), it is also undisputed that Plaintiff was not transferred from CSP-LAC until the yard he was on was converted to a reception yard in 2005. (Harbridge Depo., pp. 39, 76; Plaintiff's Response, ¶¶ 60, 62). Therefore, as Plaintiff argues, there does not seem to be a legitimate penological purpose for telling Plaintiff on October 21, 2003 that he would be transferred. (See Opp. at 15). In any event, “prison officials may not defeat a retaliation claim on summary judgment simply by articulating a general justification . . . when there is a genuine issue of material fact as to whether the action was taken in retaliation for the exercise of a constitutional right.” Bruce, 351 F.3d at 1289; Shepard, 840 F.3d at 692. Yet, that is exactly what Reed attempts to do here. Since there is a genuine issue of material fact as to whether Reed threatened to transfer Plaintiff to another prison in retaliation for Plaintiff exercising his First Amendment rights, Reed cannot rely on her “general justification” regarding legitimate reasons to transfer an inmate - as well as to inform that inmate of the transfer - to defeat Plaintiff's retaliation claim. Shepard, 840 F.3d at 692; Bruce, 351 F.3d at 1289. Accordingly, Plaintiff has “raised a jury issue that the stated penological goals were not legitimate, [and] summary judgment [in favor of Reed is] not appropriate [based on this aspect of Plaintiff's] retaliation claim.” Bruce, 351 F.3d at 1289-90; Shepard, 840 F.3d at 691-93; see also Bryant v. Romero, 2017 WL 3023574, *26 (E.D. Cal. 2017) (summary judgment was improper on legitimate correctional purpose prong of retaliation claim when parties presented conflicting evidence as to whether defendant acted with a legitimate penological purpose in recommending plaintiff's transfer or whether defendant threatened plaintiff in retaliation for filing inmate appeals).
C. Chilling Effect
An adverse action has a chilling effect on an inmate's First Amendment rights if “the ‘official's acts would chill or silence a person of ordinary firmness from future First Amendment activities.'” Watison, 668 F.3d at 1114 (quoting Rhodes, 408 F.3d at 568-69); Brodheim, 584 F.3d at 1271. This is an objective standard that does not require a plaintiff to show his speech was actually inhibited or suppressed. Brodheim, 584 F.3d at 1271; see also Rhodes, 408 F.3d at 569 (“Because ‘it would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity,' Rhodes does not have to demonstrate that his speech was ‘actually inhibited or suppressed.'” (citation omitted)).
Reed contends that it “is undisputed that a person of ordinary firmness would not have been chilled from further protected conduct by the comment attributed” to her. (Mot. Mem. at 14-18). The Court disagrees. As discussed above, Plaintiff has presented evidence that Reed threatened him with transfer to a different prison if he continued to file grievances or write letters of complaint. “A jury could certainly find that [Reed's] threat . . . would chill a ‘person of ordinary firmness'” from exercising his First Amendment rights. Shepard, 840 F.3d at 691 (quoting Rhodes, 408 F.3d at 569); see also Brodheim, 584 F.3d at 1270-71 (Brodheim met the “objective standard” governing the chilling inquiry when evidence was presented that Cry's “warning was a threat of transfer or disciplinary action[,]” and a “reasonable person may have been chilled by Cry's warning”); Klein v. Williams, 714 Fed.Appx. 631, 636 (9th Cir. 2017) (“[W]e have held that a threat of transfer was sufficient to satisfy the ‘objective standard govern[ing] the chilling inquiry[.]'” (citing Brodheim, 584 F.3d at 1270).
Reed bases her contention on the assertion that her “alleged comment was entirely innocuous” since she “merely stated that [Plaintiff] seemed unhappy at the prison and that she would transfer him.” (Id. at 16). However, as discussed above, there is a genuine issue of material fact as to whether Reed's statement constitutes an implied threat to transfer Plaintiff if he continued to exercise his First Amendment rights.
Reed disagrees, arguing that Plaintiff did not suffer any - or certainly no more than de minimis - injury as a result of his conversation with Reed since Plaintiff was not transferred, and it is undisputed that he was not going to be transferred as a result of the meeting. (Mot. Mem. at 14-16). Reed is correct that there is no dispute that Plaintiff was not transferred as a result of the alleged meeting. But this does not mean that Plaintiff could not have been transferred based on his meeting with Reed since Reed had the power to recommend Plaintiff's transfer if she chose to do so. (See, e.g., Harbridge Depo., pp. 28, 70-71; Plaintiff's Response, ¶¶ 23, 59-59(c), 65; see also Reed Decl., ¶¶ 6-7, 9-14, 21-22). Furthermore, as noted above, there is a genuine issue of material fact as to whether Reed's statement - if made - had a chilling effect on Plaintiff. As the Ninth Circuit has explained, as long as there is a chilling effect, a plaintiff need not show further harm to succeed on a First Amendment retaliation claim since “the mere threat of harm can be an adverse action, regardless of whether it is carried out because the threat itself can have a chilling effect.” Brodheim, 584 F.3d at 1270 (italics in original); see also id. at 1271 (“The power of a threat lies not in any negative actions eventually taken, but in the apprehension it creates in the recipient of the threat.”).
As noted above, there is a genuine issue of material fact as to whether the meeting occurred.
D. Causal Connection
“To establish causation, [Plaintiff] must ‘put forth evidence of retaliatory motive, that, taken in the light most favorable to him, presents a genuine issue of material fact as to [Reed's] intent'” in threatening Plaintiff. Shepard, 840 F.3d at 689 (citations omitted); Brodheim, 584 F.3d at 1271; see also Hartman v. Moore, 547 U.S. 250, 259 (2006) (A Section 1983 “plaintiff must show a causal connection between a defendant's retaliatory animus and subsequent injury in any sort of retaliation action[.]”). “To raise a triable issue as to motive, [Plaintiff] must offer ‘either direct evidence of retaliatory motive or at least one of three general types of circumstantial evidence [of that motive].'” McCollum v. Cal. Dep't of Corr. & Rehab., 647 F.3d 870, 882 (9th Cir. 2011) (quoting Allen v. Iranon, 283 F.3d 1070, 1077 (9th Cir. 2002)). “The three types of circumstantial evidence are: (1) proximity in time between the protected speech and the alleged retaliation; (2) the [defendant's] expressed opposition to the speech; and (3) other evidence that the reasons proffered by the [defendant] for the adverse . . . action were false and pretextual.” Allen, 283 F.3d at 1077; McCollum, 647 F.3d at 882.
Plaintiff has also raised a genuine issue of material fact as to this retaliation factor since Reed's threat, construed in the light most favorable to Plaintiff, provides sufficient evidence of a retaliatory motive to withstand summary judgment - i.e., Plaintiff was threatened with a prison transfer because of his First Amendment activities. Brodheim, 584 F.3d at 1271; Bruce, 351 F.3d at 1288-89; see also Watison, 668 F.3d at 1115-16 (adequate causal connection when defendant threatened to take action against plaintiff because plaintiff filed a grievance against defendant); Richardson v. Pletting, 2020 WL 6065928, *12 (C.D. Cal.) (“Plaintiff testified and alleged in his verified Complaint that Captain LeMaster told him he was being transferred away from CIM at least in part because he was ‘kicking up dust' with correctional staff. Construed in the light most favorable to Plaintiff, the non-moving party, this is direct evidence of a retaliatory motive.”), report and recommendation accepted by, 2020 WL 6694341 (C.D. Cal. 2020).
Reed's argument to the contrary is based on her assertion that it is undisputed that she did not know that Plaintiff wrote the anonymous report and that Plaintiff's family lived close to CSP-LAC and therefore she was not motivated by these factors. (Mot. Mem. at 18-19). But that is beside the point. Reed's threat to Plaintiff was based on the grievances and complaint letters he had written, not on any anonymous report or where Plaintiff's family lived.
Accordingly, Reed is not entitled to summary judgment because Plaintiff “has established a genuine issue of material fact as to whether [Reed] retaliated against him.” Shepard, 840 F.3d at 694.
E. Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); Ortiz v. Jordan, 562 U.S. 180, 183 (2011). “Qualified immunity balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 555 U.S. at 231; see also V-1 Oil Co. v. Smith, 114 F.3d 854, 857 (9th Cir. 1997) (“Through the application of the qualified immunity doctrine, public servants avoid ‘the general costs of subjecting officials to the risks of trial - distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.'” (quoting Harlow, 457 U.S. at 816)). “The protection of qualified immunity applies regardless of whether the government official's error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.'” Pearson, 555 U.S. at 231 (citations omitted).
To determine whether a government official is entitled to qualified immunity, the court must ascertain: (1) whether, “[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the [official's] conduct violated a constitutional right”; and (2) “whether the right was clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001), modified by, Pearson v. Callahan, 555 U.S. 223 (2009). Courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236; Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam).
Defendant Reed asserts she is entitled to qualified immunity because no constitutional violation occurred and it was not clearly established in 2003 that threatening to transfer an inmate was a constitutional violation. (Mot. Mem. at 20-24).
In his Objections, Plaintiff suggests that the qualified immunity analysis should not be limited to Reed's alleged threat because Reed might have actually attempted to transfer Plaintiff, it is not possible for him to know whether this occurred, and this “fact” is in dispute. (Objections at 7-11). However, Plaintiff has not presented any evidence demonstrating Reed ever actually attempted to transfer him - as noted above, Plaintiff was not transferred until 2005, when all the prisoners from his yard were relocated to a new prison - and his speculation that Reed might have attempted to transfer him “is insufficient to defeat summary judgment.” Hill v. Walmart Inc., 32 F.4th 811, 818 (9th Cir. 2022); see also Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 856 (9th Cir. 2019) (“A party's own speculation is insufficient to create a genuine issue of material fact[.]”); Foster v. City of Indio, 908 F.3d 1204, 1217-18 (9th Cir. 2018) (A “bare allegation alone, without any evidence in the record, is insufficient” to support a denial of summary judgment on the basis of qualified immunity (italics in original)); Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016) (“‘[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment.'” (quoting Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996))).
“To evaluate whether there is a constitutional violation, [the Court applies] the current law.” Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir. 2022); Sandoval v. Cnty. of San Diego, 985 F.3d 657, 678 (9th Cir.), cert. denied, 142 S.Ct. 711 (2021). Here, as detailed above, Plaintiff has “raised a genuine dispute of material fact as to whether [his] constitutional right was violated and [has] satisfied [this] part of the qualified immunity inquiry.” Ballentine, 28 F.4th at 64; see also Tolan, 572 U.S. at 656 (In addressing qualified immunity on summary judgment, “courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment.”). Thus, the Court must address whether the right Plaintiff asserts was clearly established.
“A right is clearly established when it is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'” Rivas-Villegas v. Cortesluna, 142 S.Ct. 4, 7 (2021) (per curiam) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (citation omitted); Taylor v. Barkes, 575 U.S. 822, 825 (2015) (per curiam). “In other words ‘existing precedent must have placed the statutory or constitutional question beyond debate.'” Carroll v. Carman, 574 U.S. 13, 16-17 (2014) (per curiam) (citation omitted); Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (per curiam). The “rule must be settled law, which means it is dictated by controlling authority or a robust consensus of cases of persuasive authority[.]” District of Columbia v. Wesby, 138 S.Ct. 577, 589-90 (2018) (citations and internal quotation marks omitted); see also Gordon v. Cnty. of Orange, 6 F.4th 961, 969 (9th Cir. 2021) (“Ultimately, the prior precedent must be controlling - from the Ninth Circuit or Supreme Court - or otherwise be embraced by a consensus of courts outside the relevant jurisdiction.” (citation and internal quotation marks omitted)). “It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply. Otherwise, the rule is not one that ‘every reasonable official' would know.” Wesby, 138 S.Ct. at 590 (citations omitted). Plaintiff “‘bears the burden of showing that the rights allegedly violated were clearly established.'” Gordon, 6 F.4th at 969 (quoting Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017)); Emmons v. City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019) (per curiam); see also Davis v. Scherer, 468 U.S. 183, 197 (1984) (“A plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue.”).
The Court begins the “inquiry into whether th[e] constitutional violation was clearly established by defining the law at issue in a concrete, particularized manner.” Shafer, 868 F.3d at 1117; Felarca v. Birgeneau, 891 F.3d 809, 822 (9th Cir. 2018); see also Rivas-Villegas, 142 S.Ct. at 8 (The clearly established “inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.'” (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)); White v. Pauly, 137 S.Ct. 548, 552 (“[T]he longstanding principle [is] that ‘clearly established law' should not be defined ‘at a high level of generality[,]'” but “must be ‘particularized' to the facts of the case.” (citations omitted)); Wilson v. Layne, 526 U.S. 603, 615 (1999) (“[T]he right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.”). “In evaluating whether a right is clearly established, [the Court] look[s] to the state of the law at the time of the incident in question.” C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 986 (9th Cir. 2011); see also Tolan, 572 U.S. at 656 (“‘The salient question'” in determining whether a right is clearly established “‘is whether the state of the law' at the time of an incident provided ‘fair warning' to the defendants ‘that their alleged [conduct] was unconstitutional.'” (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). Cases post-dating the conduct in question “could not have given fair notice to [the defendant] and are of no use in the clearly established inquiry.” Brosseau, 543 U.S. at 200 n.4; City of Tahlequah, Okla. v. Bond, 142 S.Ct. 9, 12 (2021) (per curiam); Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1039 (9th Cir. 2018); see also Estate of Aguirre v. Cnty. of Riverside, 29 F.4th 624, 629 (9th Cir. 2022) (“We emphasize that only cases that predate the incident are relevant to the ‘clearly established' inquiry.”).
“While courts generally don't consider post-incident cases in determining ‘whether the law was clearly established at the time of the incident[,] . . . post-incident cases that make a determination regarding the state of the law at the time of the incident are persuasive authority.'” Hernandez v. Town of Gilbert, 989 F.3d 739, 745 n.3 (9th Cir. 2021) (quoting Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996)).
Here, the incident in question allegedly occurred on October 21, 2003. At that time, “the prohibition against retaliatory punishment [was already] ‘clearly established law' in the Ninth Circuit, for qualified immunity purposes.” Pratt, 65 F.3d at 806 (citing Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995)); see also Vance v. Barrett, 345 F.3d 1083, 1094 (9th Cir. 2003) (“In 1995, we held that our law regarding retaliation against inmates was clearly established for qualified immunity purposes, and we do so again here.” (citation omitted)). However, this alone is insufficient to deny Reed qualified immunity in this matter since, as discussed above, “the clearly established law must be ‘particularized' to the facts of the case.” White, 137 S.Ct. at 552 (2017); see also City of Escondido, Cal. v. Emmons, 139 S.Ct. 500, 503 (2019) (per curiam) (“Under our cases, the clearly established right must be defined with specificity.”); Reichle v. Howards, 566 U.S. 658, 665 (2012) (rejecting as too general the “settled” rule that “the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for his speech” (citation and internal quotation marks omitted)); Shepard, 840 F.3d at 693 (While a “prisoner's general right against retaliatory punishment was clearly established well before Wise transferred Shepard to administrative segregation in 2008[,] . . . to overcome qualified immunity, Shepard must show that, as to the precise conduct at issue, ‘existing precedent . . . placed the . . . constitutional question beyond debate.'” (citations omitted)). Instead, the question the Court addresses is whether it was clearly established in 2003 that a correctional official's implicit threat to transfer an inmate for exercising his First Amendment rights constituted an adverse action sufficient to chill a person of ordinary firmness from pursuing future First Amendment activities.
As discussed above, the facts of this case do not suggest Plaintiff was ever punished in relation to the alleged October 21, 2003 meeting. Rather, construing the evidence presented in the light most favorable to Plaintiff, the evidence shows that in a “very brief” meeting on October 21, 2003, Reed told Plaintiff that he “must not be very happy there since [he kept] writing letters complaining, and therefore she [was] going to put [Plaintiff] up for transfer to another prison[,]” which Plaintiff interpreted as a threat to transfer him if he kept filing grievances and writing complaint letters. (Complaint, ¶¶ 74-76; Harbridge Depo. pp. 27, 34, 37, 41-42, 46-47; Plaintiff's Response, ¶¶ 18-19, 28, 57(a)). When Plaintiff answered that he was entitled to be free retaliation, Reed responded that she was “‘not retaliating[,]'” and, thereafter, Plaintiff was not transferred in response to this interaction even though Plaintiff had an annual review approximately two weeks later on November 5, 2003, and a program review that Reed chaired on January 12, 2004. (Garcia Decl., ¶ 14, Exhs. E-F; Reed Decl., ¶ 14; Harbridge Depo. pp. 37-38, 42-49; Plaintiff's Response, ¶¶ 16, 24-26, 61).
The Court is “not convinced that at the time of the threat ‘any reasonable official in [Reed's] shoes would have understood that [she was] violating [Plaintiff's First Amendment rights], meaning that existing precedent . . . placed the . . . constitutional question beyond debate.'” Entler, 872 F.3d at 1044 (quoting City & Cnty. Of San Francisco v. Sheehan, 575 U.S. 600, 611 (2015)). Plaintiff has not identified - and the Court has not found - any controlling case predating Reed's alleged threat sufficient to put a reasonable prison official on notice that such conduct could constitute an adverse action for purposes of a First Amendment retaliation claim. Indeed, it was not until Brodheim in 2009 that the Ninth Circuit held that an implicit threat could be sufficient to qualify as an adverse action for purposes of a First Amendment retaliation claim and an inmate “need not establish that [a prison official's] statement contained an explicit, specific threat of discipline or transfer if he failed to comply.” Brodheim, 584 F.3d at 1270; see also Penton v. Hubard, 2021 WL 3563375, *52 (E.D. Cal.) (“Here, it was not until 2009 that the Ninth Circuit found that in the retaliation context, a prisoner did not need to establish that the prison guard's statement contained an explicit threat of discipline or transfer, because ‘[b]y its very nature, a statement that “warns” a person to stop doing something carries the implication of some consequence of a failure to heed that warning.'” (quoting Brodheim, 584 F.3d at 1270), report and recommendation adopted by, 2021 WL 4480503 (E.D. Cal. 2021). Nor did a robust consensus of cases of persuasive authority clearly establish the right at issue. Wesby, 138 S.Ct. at 589-90; Gordon, 6 F.4th at 969. And despite Plaintiff's argument to the contrary (see Objections at 14), this is not “the rare ‘obvious case,' where the unlawfulness of the [defendant's] conduct is sufficiently clear even though existing precedent does not address similar circumstances.” Wesby, 138 S.Ct. at 590; Hope, 536 U.S. at 738. Accordingly, Plaintiff has not met his burden of establishing that the right in question was clearly established, and Reed is entitled to qualified immunity for Claim 14. See Penton, 2021 WL 3563375 at *52 (“Viewing the alleged statement in the light most favorable to plaintiff, taking his version of what defendant Lynch said as true, and construing, arguendo, defendant Lynch's statements to be a ‘threat' sufficient to constitute an adverse action, Brodheim was not decided until 2009. Thus, even if defendant Lynch's words constituted a threat of retaliation, it would not be clear to a reasonable prison official as of 2008 that such words would deter plaintiff's protected conduct and chill a person of ordinary firmness. Thus, defendant Lynch is entitled to qualified immunity on plaintiff's retaliation claim.”).
Plaintiff argues that in raising a qualified immunity argument, Reed is essentially asserting that the Ninth Circuit erred in relying on Brodheim to remand Claim 14 for further proceedings. (Opp. at 26). However, this is not true since the Ninth Circuit did not address qualified immunity in its decision, but instead relied on Brodheim to determine the Court's “initial screening order” was incorrect as to Claim 14. See Harbridge, 752 Fed.Appx. at 396-98. Plaintiff also cites the November 6, 2019 Report and Recommendation, which recommended rejecting Reed's qualified immunity argument. (Opp. at 26; see also Dkt. No. 273 at 30-32). However, while noting that an inmate's general right against retaliatory punishment was clearly established in 2003, the Court did not proceed further and instead recommended denying summary judgment at that “stage of the proceedings” given the entirely cursory nature of Reed's qualified immunity argument. (See Dkt. No. 273 at 31-32). In particular, Reed's motion argued only that Reed was entitled to qualified immunity because “Plaintiff [had] failed to plead facts to support a violation of any constitutional right against Defendant” and did not address the “clearly established” issue. (See Dkt. No. 263 at 32; see also Dkt. No. 271 at 17-18 (arguing in Reed's Reply brief that qualified immunity is appropriate because “[w]hile it is well-established that a threat to transfer an inmate could constitute retaliation in violation of the First Amendment, Plaintiff provides only conclusory and speculative allegations that Defendant was attempting to threaten him with a transfer.” (citing Brodheim, 584 F.3d at 1269)). In his Objections, Plaintiff argues that qualified immunity should be denied because Reed waived the issue by only cursorily addressing it in her 2019 summary judgment motion. (Objections at 16-17). Plaintiff cites no authority supporting this contention, which is without merit. “Qualified immunity is an affirmative defense that should be pled by the defendant.” Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980) (“Since qualified immunity is a defense, the burden of pleading it rests with the defendant.”). Here, Reed pled qualified immunity in both Answers she filed in this matter. (See Dkt. No. 150 at 13; Dkt. No. 279 at 8). Additionally, she argued that she is entitled to qualified immunity in her summary judgment motions as to Claim 14. (Mot. Mem. at 20-24; Dkt. No. 263 at 32). There was no waiver. Frudden v. Pilling, 877 F.3d 821, 831 (9th Cir. 2017); Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005).
In his Objections, Plaintiff argues that Gomez v. Vernon, 255 F.3d 1118 (9th Cir. 2001), “is directly on point with the instant case, and it predates 2003.” (Objections at 5-7). However, Gomez involved retaliatory action - repeated attempts to have an inmate transferred leading to the inmate resigning his law library job to avoid the transfer - and not the single implicit threat at issue here. See Gomez, 255 F.3d at 1123, 1127-28. Plaintiff is not similarly situated to the inmate in Gomez, and Gomez did not clearly establish that Reed's alleged statement constituted an adverse action sufficient to chill a person of ordinary firmness from pursuing future First Amendment activities. Likewise, all the other Ninth Circuit cases discussed herein that predate Reed's alleged threat involved retaliatory actions against a prison inmate. See, e.g., Vance, 345 F.3d at 1093 (retaliatory termination of prison employment); Pratt, 65 F.3d at 805 (retaliatory prison transfer and double-celling) & 806 n.4 (“That retaliatory actions by prison officials are cognizable under § 1983 has also been widely accepted in other circuits.” (emphasis added; citations omitted)); Schroeder, 55 F.3d at 461 (retaliatory prison transfer); see also Hines v. Gomez, 108 F.3d 265, 269 (9th Cri. 1997) (filing false charges against inmate in retaliation for use of the prison grievance system); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam) (affirming summary judgment denying inmate's claim he was reclassified in retaliation for filing civil rights actions against prison officials); Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (retaliating against plaintiff for filing grievances by telling other inmates that plaintiff was a snitch, which subjected plaintiff to retaliation from the other inmates); Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985) (retaliatory reassignment out of a vocational training course and subsequent prison transfer). Moreover, while Bruce was decided several months after Reed's alleged threat in this matter, it too involved actions taken by prison officials. See Bruce, 351 F.3d at 1288 (validating plaintiff as a gang member in retaliation for plaintiff filing several grievances). In addition to the cases discussed herein, Plaintiff cites Rhodes and Brodheim in arguing the right in question was clearly established. (See Opp. at 25). Even though Rhodes was decided in 2005, Rhodes is relevant to the extent it addressed qualified immunity and the events in Rhodes predated Reed's alleged threat. See Rhodes, 408 F.3d at 563-70. However, Rhodes does not benefit Plaintiff since, like the other cases discussed herein, it involved actions taken against an inmate - the arbitrary, confiscation, withholding and destruction of Rhodes's property; a “scheduled transfer” only thwarted by an intervening medical decision; and a physical assault on Rhodes by three correctional officers - and did not clearly establish the rule the Court addresses herein. See id. Finally, Brodheim did not address qualified immunity, see Brodheim, 584 F.3d at 1264-74, apparently because Brodheim only sought declaratory and injunctive relief. See Brodheim v. Cry, 2010 WL 3943558, *1 (E.D. Cal. 2010).
In his Objections, Plaintiff argues that state regulations clearly established that prison officials were barred from retaliating against inmates for filing grievances. (Objections at 3-4). However, the regulations Plaintiff cites are no more particularized than the general prohibition against retaliatory punishment, which, as set forth above, is insufficient to constitute clearly established law for purposes of Plaintiff's retaliation claim. (See Objections at 3 (citing 15 Cal. Code of Regs. (“C.C.R.”) § 3084.1(d) (2003) (“No reprisal shall be taken against an inmate or parolee for filing an appeal.”) & 15 C.C.R. § 3130 (2003) (“The department encourages correspondence between inmates and persons outside the correctional facilities.”))). In any event, Plaintiff's argument fails because “an official's clear violation of a state administrative regulation does not allow a § 1983 plaintiff to overcome the official's qualified immunity.” Elder v. Holloway, 510 U.S. 510, 515 (1994); see also Davis v. Scherer, 468 U.S. 183, 194 (1984) (“Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision.”); Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (“[T]he remaining defendants are entitled to qualified immunity from the federal claims because state departmental regulations do not establish a federal constitutional violation.” (italics in original)).
In Burgess v. Moore, 39 F.3d 216 (8th Cir. 1994), the Eighth Circuit concluded that “a threat of retaliation is sufficient injury if made in retaliation for an inmate's use of prison grievance procedures.” Id. at 218. In his Objections, Plaintiff cites Burgess in support of his contention that Reed is not entitled to qualified immunity. (Objections at 4-5). However, a single opinion “cannot form the basis for a ‘robust consensus[,]'” Rico v. Ducart, 980 F.3d 1292, 1301 (9th Cir. 2020) (quoting Wesby, 138 S.Ct. at 589-90); see also Dunham v. Cnty. of Monterey, 2020 WL 9395224, *11 (N.D. Cal. 2020) (A “single case[] is obviously not a robust consensus of cases.”), and other cases demonstrate that no robust consensus existed even after Reed allegedly threatened Plaintiff. See, e.g., Wilson v. Zielke, 382 Fed.Appx. 151, 152-53 (3d Cir. 2010) (“Some of our sister circuits have held that verbal threats alone can support a claim for retaliation. [citing Brodheim and Burgess]. However, neither the United States Supreme Court nor this Circuit has defined with specificity the contours of when a threat constitutes an adverse action in the official-detainee setting. Thus, the law as it existed at the time of this incident [in March 2005] would not have put a reasonable person in Zielke's position on notice that she was violating a clearly established right. Accordingly, Zielke is entitled to qualified immunity on Wilson's First Amendment retaliation claim.”); Bell v. Woods, 382 Fed.Appx. 391, 393 (5th Cir. 2010) (per curiam) (“Bell has not stated a retaliation claim because he has alleged only a threat, but no retaliatory adverse act.”); Hill v. Chalanor, 128 Fed.Appx. 187, 189 (2d Cir. 2005) (“The alleged threats made by defendant Oliver, without any allegation that the latter carried through on those threats, did not constitute adverse action.”). Indeed, while in the Ninth Circuit, Brodheim “clearly established [in 2009] that a ‘mere threat of harm' may be enough to demonstrate retaliation[,]” Augborne v. Filson, 2020 WL 5539800, *11 (D. Nev.), report and recommendation accepted by, 2020 WL 3868868 (D. Nev. 2020), a district court in another circuit recently noted that “no consensus has emerged among the federal courts as to whether a verbal threat alone, even one threatening death or violence, constitutes an adverse action that violates an inmate's First Amendment rights when uttered in retaliation for engaging in protected conduct.” Stow v. McGrath, 2021 WL 1178303, *17 (D. N.H. 2021).
The Ninth Circuit remanded this matter to consider Claim 14 “against Reed only.” Harbridge, 752 Fed.Appx. at 398. As discussed above, Claim 14 was set forth in Plaintiff's initial Complaint, which sought not only damages but also declaratory and injunctive relief as well. (See Complaint at 56-57). This is potentially important since “qualified immunity applies only to liability for money damages - not injunctive or declaratory relief.” Daniels Sharpsmart, Inc. v. Smith, 889 F.3d 608, 616 (9th Cir. 2018); Ministerio Roca Solida v. McKelvey, 820 F.3d 1090, 1096 n.6 (9th Cir. 2016). Despite this, the parties have not addressed this issue and have proceeded as if Claim 14 only sought damages from Reed. Nevertheless, to remove any potential doubt, the Court notes that most of Plaintiff's requests for injunctive relief do not appear to relate to Claim 14 and, to the extent they do, they are inappropriate for the single incident alleged in Claim 14. (See Complaint at 56-57). In any event, to the extent Plaintiff might still be seeking declaratory and injunctive relief as to Claim 14, such relief is moot since Plaintiff has been transferred to another prison and Reed has retired. (See, e.g., Plaintiff's Response at 1; Reed Decl., ¶ 1); Brown v. Ore. Dep't of Corrs., 751 F.3d 983, 990 (9th Cir. 2014); see also Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (“[W]hen a prisoner is moved from a prison, his action will usually become moot as to conditions at that particular facility.”); Rios v. Gipson, 599 Fed.Appx. 294, 295 (9th Cir. 2015) (“The district court also properly dismissed Rios' claims for injunctive and declaratory relief because these claims were rendered moot when Rios was transferred to another prison.”); Voth v. Mills, 473 Fed.Appx. 646, 646 (9th Cir. 2012) (“The district court properly determined that Voth's claims for declaratory and injunctive relief were moot because Voth was no longer housed in the prison where the allegedly unconstitutional events occurred.”).
V.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the District Court issue an Order: (1) accepting this Final Report and Recommendation; (2) granting Defendant Reed's Request for Judicial Notice (Dkt. No. 286); (3) granting Defendant Reed's Motion for Summary Judgment (Docket No. 285); and (4) entering Judgment dismissing this action with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.