JEFFREY T. MILLER, District Judge.
In June 2008, Plaintiff Gregory Lee Gray filed a complaint under 42 U.S.C. § 1983 against Defendants Sterling, Peterson, and Marrero arising from events that occurred at R.J. Donovan Correctional Facility. Several of the claims have been dismissed, and Defendants now move for summary judgment on Plaintiff's First Amendment retaliation claim. For the reasons stated below, the motion is DENIED.
Plaintiff's first amended complaint ("FAC") alleges that in January 2007, Plaintiff filed a small claims suit against Defendant Marrero, Captain of Facility 3 Yard, and Defendants Sterling and Peterson, employees of the prison library (the "librarians"). Thereafter, Plaintiff made a written settlement offer to the librarians informing them that they had been sued for $1,666.20 for denying Plaintiff access to the law library. The offer stated that Plaintiff was "willing to Settle if you pay me the sum of $200 dollars, and `no' Restitution is taken out of my Account." Defendants claim that they interpreted this as an extortion attempt and that they feared for their safety, so they filed Rules Violation Reports ("RVRs") against Plaintiff. Plaintiff was charged with extortion and placed in Administrative Segregation ("Ad Seg") by Defendant Marrero on June 18, 2007. He was found not guilty of the extortion charge, and then released from Ad Seg on August 22, 2007. Plaintiff was transferred to Mule Creek State Prison in October 2007, and shortly thereafter was transferred to High Desert State Prison. Based on his punishments, Plaintiff filed this lawsuit stating several causes of action. Defendants now move for summary judgment on Plaintiff's First Amendment retaliation claim, the only cause of action that has survived Defendants' motions to dismiss.
When a party moves for summary judgment under Fed. R. Civ. P. 56(b), the motion should only be granted if "under the governing law, there can be but one reasonable conclusion as to the verdict."
At summary judgment, generally "a nonmoving party plaintiff has no obligation to produce anything until the moving party defendant has carried its initial burden of production."
The parties agree that district courts must analyze five elements when addressing a First Amendment retaliation claim, as explained in
In
Defendants argue that their actions cannot constitute adverse action because they were merely complying with the law. However, they cite no law in support of their theory that good faith punishments cannot be adverse actions. The Ninth Circuit has explained that even a threat of retaliation can be an adverse action, since it could have a chilling effect on speech.
Defendants claim that the "uncontroverted evidence" demonstrates that the librarians filed the RVRs because of a perceived rules violation rather than because of any retaliatory motive. Similarly, Defendant Marrero states that he was required to place Plaintiff in Ad Seg because of the charges against him. Defendants urge that "[w]hen an obvious alternative explanation for conduct is offered, the Court should adopt that explanation in place of a mere inference of retaliation." Def. SJ Mtn. at 6 (citing
While Defendants have shown that the law compels filing of an RVR after a rules violation and that the inmate should be placed in Ad Seg if he presents a security threat, the existence of those rules does not establish Defendants' contention that they believed the settlement offer was a rules violation and created a security threat. Indeed, at the summary judgment stage the court cannot say that the letter Plaintiff wrote would "obviously" cause the librarians to feel concerned for their safety and file RVRs that persuaded Defendant Marrero to place Plaintiff in Ad Seg for over two months. Certainly retaliatory motive has not been established, but it is for the trier of fact to determine whether such adverse action was motivated by Plaintiff's protected conduct.
As noted previously, Defendants also contend that Plaintiff cannot avoid summary judgment since their declarations as to their motive are "uncontroverted." It is true here—as it is with many legal claims that turn on an actor's motive—
that Plaintiff has not presented direct evidence tending to establish that Defendants took disciplinary action with a retaliatory motive. However, Defendants ignore Ninth Circuit law establishing that circumstantial evidence can create an inference sufficient to defeat a motion for summary judgment.
Generally, plaintiffs in a retaliation suit can point to proximity in time as circumstantial evidence of retaliatory motive. This case differs from the typical suit because the punishment was admittedly the result of action related to Plaintiff's protected First Amendment activity. Due to this fact, some inference of retaliatory motive is already present. Thus, while proximity of time could be used as circumstantial evidence here, it need not be relied upon in order to raise the required inference. Furthermore, Defendants' lack of support for their claims of fearfulness could lead a factfinder to reasonably conclude that such alternative explanations are pretextual.
In sum, while it is true that Plaintiff has put forth no direct evidence to controvert Defendants' declarations, the circumstantial evidence is strong enough to create a reasonable disagreement as to whether Plaintiff's punishment was the result of retaliatory motives.
Defendants argue that Plaintiff's punishment caused no chilling effect, asserting that his small claims suit was dismissed because of a failure to appear rather than because of any punishment. However, the court is not to look to the success of an individual case in order to determine whether a chilling effect existed. Instead, it must assess "whether an official's acts would chill
Defendants also tack on a very short separate argument summarily asserting that in order to succeed, Plaintiff must "show that [Defendants] acted intentionally to harm him." Def. SJ Mtn. at 10 (citing
Alternatively, Defendants argue that they are protected by qualified immunity. In determining whether qualified immunity is available, the court should first decide whether a constitutional right has been violated, and next look to whether the right was clearly established.
As discussed above, Plaintiff's First Amendment right has been violated if his allegations are true. Defendants argue that even if a constitutional violation has been established, qualified immunity nevertheless protects them because "Plaintiff has not shown under the specific facts of this case that he had a `clearly established' right to avoid the actions that were taken in compliance with prison regulations, even if the charges against him were later found to be mistaken." Def. SJ Mtn. at 11. Further, Defendants argue that Plaintiff has not shown that "he had a `clearly established' right to expect Defendants not to comply with their required duties under the applicable law and regulations."
Defendants correctly state that there is no clearly established right to avoid legitimate punishment. However, the question is whether, assuming that the constitutional right has been violated, it would have been clear to a reasonable prison official that his conduct was unlawful at the time it occurred. Defendants have once again failed to make any argument corresponding to the proper standard: whether it would have been clear to a reasonable prison official that punishment motivated by retaliation for filing the lawsuit would be unlawful. Here, it would have been clear to Defendants that punishing Plaintiff in retaliation for filing his small claims lawsuit would violate the law.
Defendants have not successfully established the absence of a genuine issue of material fact as to whether Plaintiff's punishment was motivated by retaliatory motive. Similarly, Defendants cannot establish qualified immunity at the summary judgment stage—if the facts occurred as alleged in the complaint, Defendants' actions clearly violated a constitutional right. The motion for summary judgment is DENIED.