ORDER

DALE A. DROZD, Magistrate Judge.

Plaintiff Anthony E. Roberts is a state prisoner incarcerated at Valley State Prison in Chowchilla, California. Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983, in which he asserts First and Eighth Amendment claims against the sole defendant in this action, Jesse Hernandez, based on conduct that allegedly occurred during plaintiff's incarceration at Mule Creek State Prison (MCSP). Specifically, plaintiff alleges that defendant Hernandez, a supervising cook at MCSP, sexually harassed plaintiff and then retaliated against him when plaintiff filed an administrative grievance.

Currently pending before the court is defendant's motion for summary judgment brought pursuant to Rule 56, Federal Rules of Civil Procedure. For the reasons set forth below, the undersigned grants defendant Hernandez's motion for summary judgment.

BACKGROUND

This action proceeds on plaintiff's original complaint, filed July 28, 2011. (ECF No. 1.) Therein, plaintiff alleges in full:

(ECF No. 1 at 3.) Plaintiff seeks "an injunction from being retaliated upon, via harassment," transfer to another prison, the removal of allegedly false disciplinary chronos from his central file, and monetary damages to compensate him for his allegedly resulting mental anguish. (ECF No. 1 at 3-4.) However, plaintiff was transferred from MCSP to Valley State Prison on February 4, 2013 (see ECF No. 19), rendering moot his claim for injunctive relief and request for an institutional transfer.

On November 15, 2013, counsel for defendant Hernandez filed the pending motion for summary judgment. (ECF No. 29.) After obtaining extensions of time, and by application of the mailbox rule,3 plaintiff timely filed his opposition on March 3, 2014. (ECF No. 37; see also ECF Nos. 34, 36.) On March 12, 2014, defendant filed his reply. (ECF No. 38.) Thereafter, plaintiff filed a "response" (ECF No. 39), properly characterized as an unauthorized surreply.4

LEGAL STANDARDS

I. Summary Judgment Standards Under Rule 56

Summary judgment is appropriate when the moving party "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). Under summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by "citing to particular parts of materials in the record, including depositions, documents, electronically store information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admission, interrogatory answers, or other materials" or by showing that such materials "do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, "the moving party need only prove that there is an absence of evidence to support the nonmoving party's case." Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325). See also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who 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. See Celotex, 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, . . ., is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (citations omitted).

"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

II. Civil Rights Act Pursuant to 42 U.S.C. § 1983

The Civil Rights Act under which this action was filed provides as follows:

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person `subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made."5 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

PARTIES' EVIDENCE AND ARGUMENTS

Defendant moves for summary judgment on the grounds that: (1) plaintiff has failed to present sufficient evidence in support of his claims to survive summary judgment; (2) even under plaintiff's version of the facts, he fails to state actionable claims; and (3) alternatively, under the undisputed facts of the case, defendant is entitled to qualified immunity. (Def.'s Mem. of Ps & As in Supp. of MSJ (ECF No. 29-1).)

I. Defendant's Evidence and Arguments

In moving for summary judgment in his favor, defendant Hernandez has submitted a Statement of Undisputed Facts supported by his declaration signed under penalty of perjury and by the declaration of his counsel, Deputy Attorney General Diana Esquivel, as well as the exhibits attached thereto. Defendant's Statement is also supported by citations to the transcript of plaintiff's deposition. The evidence and arguments submitted by defendant establish the following.6

Plaintiff was incarcerated at MCSP from July 2005 to February 2013. (Roberts Dep. 43:9-16 (Lodged Doc., ECF No. 31) (see also Esquivel Decl., Ex. E).) In January 2011, plaintiff worked as a linebacker in the Facility C satellite kitchen, for which he was compensated. As a linebacker, his duties included setting up and replenishing the serving line and putting out the bread. However, it was not uncommon for workers to perform various tasks outside their assigned positions depending on the needs of the kitchen. (Hernandez Decl. ¶¶ 3, 8; Roberts Dep. 43:9-16, 51:24-52:2, 52:20-28, 56:19-22, 62:2-18; Pl.'s Inmate Work Supervisor's Time Log (Work Log) (Esquivel Decl., Ex. A, ECF No. 29-4 at 4).)

In January 2011, defendant Hernandez was a Supervising Cook at MCSP. Although assigned to the main kitchen, he occasionally worked in the satellite kitchens, where he supervised the inmate workers who prepared and served the meals on each yard. (Hernandez Decl. ¶¶ 1-2.)

Inmate workers in the Facility C satellite kitchen reported to work around 12:00 p.m. to begin setting up for the evening meal. The satellite kitchens started serving the evening meal around 4:00 or 4:30 p.m., and dinner ended around 6:00 p.m. (Hernandez Decl. ¶¶ 3-4; Roberts Dep. 65:15-19.) In January 2011, the Facility C satellite kitchen prepared over 1,000 meals a day. Due to the large number of inmates, and need to systematically release and feed inmates from the various housing units, it was important to maintain an efficient system for serving the meals. The quantity of food prepared in the main and satellite kitchens was based on the number of inmates housed on each yard. Although a certain amount of food was prepared above the needed quantity to account for mishaps or other unexpected circumstances, satellite-kitchen workers had to serve specific portions to avoid a shortfall. (Hernandez Decl. ¶¶ 5-7.)

On January 2, 2011, plaintiff reported to work as a linebacker at the Facility C satellite kitchen around 11:45 a.m.; however, he was required to start work as a server. Plaintiff was responsible for serving the main entrée, which was spaghetti sauce, on the trays. Around 4:00 p.m., the Facility C kitchen started feeding the gym inmates. Defendant noticed that plaintiff was placing heaping scoops of spaghetti sauce on the trays that exceeded the allotted portions, despite being instructed to provide level servings. (Hernandez Decl. ¶ 9; Roberts Dep. 56:27-57:4, 62:24-63:1.) Defendant Hernandez twice informed plaintiff that he was serving too much spaghetti sauce and that plaintiff needed to adhere to the specified portion. After the third warning, Hernandez removed plaintiff from the serving line. Plaintiff was upset and started complaining about the staff and other workers. Plaintiff's comments were disrupting and slowing down the service line. Defendant Hernandez told plaintiff to leave the kitchen and had the correctional officer assigned to the kitchen remove plaintiff from the area. (Hernandez Decl. ¶¶ 10, 11; Roberts Dep. 73:25-74:13.) Plaintiff was escorted out of the kitchen around 4:30 p.m. on January 2, 2011. Defendant Hernandez nonetheless signed off on plaintiff's time sheet, and plaintiff was paid for an entire work shift. Defendant states that he signed off on plaintiff's time sheet because he felt sorry for him and believed that he was just having a bad day. (Hernandez Decl. ¶ 12; Work Log (ECF No. 29-4 at 4).)

The next day, on January 3, 2011, plaintiff again reported to work at the Facility C satellite kitchen, where defendant Hernandez was again also assigned. Defendant Hernandez allowed plaintiff to work because he believed in giving workers a second chance and felt that plaintiff could be an efficient worker with guidance and counseling. (Hernandez Decl. ¶ 14.) From the beginning of the shift, plaintiff moved slowly and fell behind in his duties as a linebacker. He refused to do what defendant Hernandez told him to do, and was generally not receptive to defendant Hernandez's instructions. Defendant Hernandez put another worker in plaintiff's position when inmates started arriving for dinner. Around 4:30 p.m., defendant Hernandez once again told plaintiff to leave and had the kitchen correctional officer escort plaintiff out of the area. (Id. ¶ 15.) Despite plaintiff working only half a shift on January 3, 2011, defendant Hernandez again signed off on plaintiff's time sheet as though plaintiff had worked a full shift. Defendant Hernandez did this because he felt sympathy for plaintiff. (Id. ¶ 17; Work Log (ECF No. 29-4 at 4).)

On January 5, 2011, defendant Hernandez again worked in the Facility C satellite kitchen. Defendant did not want to deal with plaintiff and his disruptive behavior, so he informed the kitchen officer that plaintiff was not needed that day. Defendant Hernandez had no contact with plaintiff, and plaintiff did not work on January 5, 2011. (Hernandez Decl. ¶ 18; Work Log (ECF No. 29-4 at 4).)

On January 9, 2011, defendant Hernandez was again assigned to the Facility C satellite kitchen, and again informed the kitchen officer that plaintiff was not needed that day. Defendant Hernandez had no contact with plaintiff, and plaintiff did not work on that day. (Hernandez Decl. ¶ 19; Work Log (ECF No. 29-4 at 4).)

On January 5 and 9, defendant Hernandez indicated on plaintiff's time sheet that he was "not needed" (designated "S"). (Hernandez Decl. ¶¶ 18, 19; Work Log (ECF No. 29-4 at 4).)

On January 10, 2011, defendant Hernandez issued an Informational Chrono (Form CDC 128-B) stating that, when he (Hernandez) was assigned to the Facility C satellite kitchen, he would not work with plaintiff and plaintiff would not be allowed to report to work.7 Defendant Hernandez provided plaintiff with a copy of this chrono on the same day. (Hernandez Decl. ¶ 21.)

Meanwhile, on January 8, 2011, plaintiff submitted an inmate grievance (Form CDC 602) (Log No. MCSP-C-11-0069A) alleging in part that defendant Hernandez "tried engaging me into sexual playful chatter . . . which I declined," and that defendant refused to let plaintiff work on January 3 and 5, 2011, "[b]ecause I kindly asked him (as I did in the past), on 1/2/11 not to play with me. . . ." (Esquivel Decl., Ex. C (Pl.'s Form CDC 602) (ECF No. 29-4 at 9-14).) Defendant Hernandez states that he did not learn of plaintiff's inmate grievance until mid-to-late June 2011, when he was interviewed in connection with plaintiff's complaint. (Hernandez Decl. ¶ 26.)

Defendant Hernandez avers that, when he refused to allow plaintiff to work on January 9, 2011, and when he prepared the Informational Chrono on January 10, 2011, defendant was unaware that plaintiff had submitted a grievance against him on January 8, 2011. Defendant Hernandez maintains that he did not allow plaintiff to work in the kitchen with him any longer because he did not want to deal with plaintiff's disruptive behavior and inability to accept his instructions. Nevertheless, defendant Hernandez states that he would have taken the same action even if he'd known about plaintiff's filing of the inmate grievance. (Hernandez Decl. ¶¶ 20-22, 24.)

Because of the seriousness of plaintiff's allegations against defendant Hernandez, his inmate grievance was referred to the Office of Internal Affairs for investigation. On November 9, 2011, defendant Hernandez received notice that the investigation was completed and that plaintiff's allegations were "not sustained." Defendant Hernandez was never disciplined, reprimanded, or counseled for his alleged misconduct as asserted in plaintiff's grievance. (Hernandez Decl. ¶¶ 27, 28; Esquivel Decl., Ex. D (OIA Memorandum, dated Nov. 9, 2011) ECF No. 29-4 at 21.) Defendant Hernandez avers that he never sexually harassed plaintiff or any other inmate; that he never made any sexual comment or innuendo toward plaintiff or any other inmate; and that he did not sexually touch plaintiff or have physical contact with him at any time. (Hernandez Decl. ¶¶ 13, 16, 23.)

II. Plaintiff's Evidence and Arguments

Plaintiff's opposition to the pending motion is supported by his verified complaint, sworn deposition testimony, and exhibits attached to his opposition. Plaintiff's relevant administrative grievance is set forth in the exhibits submitted by both plaintiff and defendant.

Plaintiff asserts that defendant Hernandez had a reputation for engaging inmates in sexual banter and games. (Compl. (ECF No. 7) at 3; Roberts Dep. 46:19-22, 57:12-15, 58:20, 59:23-28, 60:5-9, 61:19-27, 69:14-23, 98:18-100:8.) For example, plaintiff states that he witnessed defendant "grope another inmate in his scrotum," and that this inmate (Edwards) "testified to Lieutenant Perez during 602 2d Level of Review." (Roberts Dep. 59:23-4, 93:3-95:26; Roberts Decl. (Opp'n., Ex. B) ECF No. 37 at 13.)

At his deposition in this case, plaintiff testified that about a month before the incidents he alleged took place in January 2011, defendant Hernandez had commented to plaintiff that "Jamaicans have big heuvos." (Roberts Dep. 58:24-59:23.)8 Thereafter, on January 2, 2011, when plaintiff was preparing bread for the evening meal service, defendant Hernandez allegedly walked up to plaintiff, placed his hand on plaintiff's shoulder, and said, "Hey, Roberts, are you gay? Jamaicans have big heuvos." (Id. at 58:24-59:23, 66:27-67:7, 69:9-12, 78:16-79:1, 80:5-82:7.) Plaintiff testified that he responded, "Look, you need to stay away from me," and "I don't play those games," and that defendant Hernandez walked away laughing. (Id. at 67:6-68:4, 70:2-4, 79:3-6, 79:16-20, 81:2-22.) Plaintiff also testified that defendant Hernandez "rested" his hand on plaintiff's shoulder and that, while the touch was not inherently sexual, plaintiff knew that "you're not supposed to touch an inmate," and "the only thing that was flashing in my mind is when he groped that inmate," and "I had to make a stand." (Id. at 79:7-82:11.) This was the only time that defendant Hernandez touched him, according to plaintiff. (Id. at 78:16-7.)

Plaintiff claims that later on January 2, 2011, after the "first run" meal service, defendant Hernandez approached inmate Morales, pointed to a bald spot on Morales' head and, within earshot of plaintiff, commented that Morales needed "oil" on his head, which Roberts understood to mean semen. (Roberts Dep. 68:8-23, 71:14-20, 75:6-16, 76:23-5.) Plaintiff responded, "That's crazy." (Id. at 74:14-6.) Thereafter, defendant Hernandez removed plaintiff from the serving line between the first and second meal runs allegedly because plaintiff had been serving out too much food. (Id. at 74:2-13, 77:13-6.) Plaintiff responded by stating aloud, during the second meal run, that, "In main line, this wouldn't be tolerated. People would get hurt," and, "If this continues, I'm going to make a write-up." (Id. at 71:24-73:24, 77:5-9.)

Plaintiff testified that he was not permitted to work on January 3 or 5, 2011, but that nonetheless "somebody" filled out his time sheet for those days. Plaintiff stated that he worked on January 4, 2011. (Roberts Dep. 21:7-22:2, 83:21-84:5.) Plaintiff testified that, on January 3 and 5, "[i]t was announced via the intercom, `Roberts, do not report to work today.'" (Id. at 84:24-6.) Nevertheless, plaintiff said that he reported to work both days and was told by defendant Hernandez not to come in, and that he would be having "S time" whenever he worked. (Id. at 85:7-86:8.) Plaintiff testified that his regular days off (RDO) were Fridays and Saturdays (viz., January 7 and 8, 2011). (Id. at 86:26-7.) Plaintiff also testified that he didn't know what happened on January 9, 2011, but that defendant Hernandez "could have not allowed me to work that day and I did not document it." (Id. at 84:6-10.)

Plaintiff submitted an inmate grievance on January 8, 2011 (Log No. MCSP-C-11-0069A), which alleged in pertinent part:

(Esquivel Decl., Ex. C (Pl.'s Form CDC 602) (ECF No. 29-4 at 11, 13).) Plaintiff requested that he receive no reprisals for submitting this inmate grievance. (Id. at 11, 14.)

Plaintiff subsequently added to his inmate grievance the allegation that defendant Hernandez had retaliated against him for using the inmate appeals process by filing "an untrue 128B Chrono." (Id. at 15.) Plaintiff stated that, on January 10, 2011, defendant Hernandez "walked up to me (in the presence of my co-workers/other inmates) and threw an envelope towards me, which hit me in the face and fell to the ground. Inmate Adams picked it up (it was said 128B Chrono)." (Id.; Roberts Dep. 27:7-20.)

Plaintiff testified at deposition that he submitted his inmate grievance by putting it in the regular mail, and did not provide defendant Hernandez with a copy. (Roberts Dep. 90:25-91:5, 17-9.) Plaintiff also testified that defendant Hernandez knew about plaintiff's inmate grievance when defendant submitted the 128B Chrono because plaintiff had warned him on January 2 that he was going to write him up. (Id. at 91:5-6, 92:17-21.) Plaintiff speculated that "most likely some of the informers working in the environment working where I was working [] could have told him." (Id. at 91:26-8.) However, plaintiff conceded that nobody had told him that they had informed defendant Hernandez of plaintiff's inmate grievance. (Id. at 92:1-21.)

Plaintiff has submitted the sworn declaration of inmate Dominic Palacio, wherein Palacio states that, on the evening January 10, 2011, while working as a linebacker in the C-Facility satellite kitchen, he sat on a milk crate after helping complete a serving run. Mr. Palacio avers that "Correctional Supervising Cook (CDC) J. Hernandez passed by me, then came back and sat on my lap. I was in shock and speechless, as J. Hernandez got up and walked away (laughing)." (Opp'n., Ex. B (ECF No. 37 at 12); Pl.'s Form CDC 602 (ECF No. 29-4 at 15) ("[f]urthermore, Hernandez sat on Palacio's lap (a co-worker/inmate) on 2/11/11"); see also Robert Dep. 96:9-98:20).

Plaintiff's inmate grievance was initially handled as a staff complaint. Correctional Lieutenant R. Perez interviewed plaintiff on June 20, 2011. At that time plaintiff reportedly stated that "he does not want `anything to happen' to the CSC [defendant Hernandez], he `just wants' cameras placed in the culinary so these `types of things' can be stopped." (Pl.'s Form CDC 602 (ECF No. 29-4 at 16). Three other inmates were also interviewed: Palacio, Adams (plaintiff's direct supervisor) and Edwards. (Id. at 18; see also Roberts Dep. 16:28, 63:2-4.) William Knipp, the MCSP Warden, referred the matter to the Office of Internal Affairs. (Pl.'s Form CDC 602 (ECF No. 29-4 at 16).) Due to this referral, plaintiff's inmate grievance was "granted in part" at the Second Level of review on August 22, 2011. (Id. at 10, 18.) On November 9, 2011, Warden Knipp sent a memorandum to defendant Hernandez, entitled "Internal Affairs Investigation Closure," which informed defendant Hernandez that plaintiff's allegations were not sustained by the investigation. (Esquivel Decl., Ex. D (OIA Memorandum, dated Nov. 9, 2011) ECF No. 29-4 at 21.) On February 7, 2012, plaintiff's inmate grievance was denied at the Third Level of review. (Pl.'s Form CDC 602 (ECF No. 29-4 at 10, 18-9).)

Plaintiff filed his complaint in this action on October 4, 2011.9

At his deposition in this case, plaintiff testified that, in addition to defendant's alleged retaliation by submitting the CDCD 128-B Chrono, plaintiff was retaliated against in the following ways:

(Roberts Dep. 28:4-20.) Asked if he "learn[ed] from any source. . . that Hernandez was behind any of those retaliatory acts," plaintiff responded that, the week after January 10, 2011, he heard defendant Hernandez say to a third party, "I will get him." Plaintiff added, "ever since he made that comment, that's when my problems really started and I got. . . thrown in the hole." (Id. at 28:25-29:27.) Plaintiff also testified that correctional officer Debbie Brown retaliated against him on behalf of defendant Hernandez, stating "she's the one that got me into Ad. Seg." (Id. at 34:17-22.) Plaintiff explained that officer Brown, who tried to "entice" plaintiff by rubbing against him, was a friend of Sergeant Peterson who requested a mental health evaluation for plaintiff, which was itself a retaliatory measure. (Id. at 34:11-36:7, 37:3-8, 37:24-41:11.) Plaintiff testified that Peterson requested the mental health evaluation a week before the issuance of the order placing plaintiff in administrative segregation for being a threat to the institution; and that these incidents took place in February and March 2012, more than a year after defendant Hernandez's alleged conduct. (Id. at 39:14-40:24.) Asked to clarify how these incidents were connected to defendant Hernandez, plaintiff testified that "Everything is connected." (Id. at 40:5-7.) Moreover, while plaintiff conceded that defendant Hernandez was not responsible for plaintiff's transfer to Valley State Prison, he said that the retaliation was continuing, "because people are retaliating that know about this and they're messing with my meals." (Id. at 102:11-6, 102:26-103:1.)

Plaintiff testified that he submitted two mental health request forms to obtain counseling for his mental anguish resulting from defendant Hernandez' alleged conduct, but his requests were ignored. (Roberts Dep. at 101:7-102:10.) Plaintiff said that he initiated this action in an effort to obtain damages and to have cameras placed in the dining hall, "for the safety of staff and inmates alike to prevent such circumstances from transpiring." (Id. at 100:18-25.) Plaintiff testified that he subsequently worked under defendant Hernandez's supervision but the defendant made no further inappropriate comments to plaintiff other than saying to another inmate that plaintiff didn't know how to cook. (Id. at. 104:4-12, 105:7-106:2.) Plaintiff stated that he had approached defendant Hernandez a couple of times to say, in part, "I would like to really find a way we can work together without the animosity," but that defendant only acted surprised and didn't respond. (Id. at 106:2-107:2.)

When asked at his deposition whether he had anything else to say about this action, plaintiff testified that he regretted filing this action but hoped that it could be resolved, noting that "I don't want to see anything happen to [Hernandez]. He has a family to feed, mouths to feed. I just — my focus was to have cameras there and Hernandez shape up and grow up." (Roberts Dep. 107:15-108:6.)

DISCUSSION

I. Sexual Harassment

Plaintiff alleges that defendant Hernandez sexually harassed him when he said to plaintiff, "Jamaicans have big huevos." Plaintiff alleges that defendant Hernandez made this statement on two occasions, one month apart, the second time in tandem with defendant resting his hand on plaintiff's shoulder and asking, "Are you gay?" Plaintiff also alleges, in his complaint, that when defendant asked plaintiff if he was gay, defendant Hernandez stated, "Jamaicans has small penis" (sic). (Compl., ECF No. 7 at 3.)10 Finally, plaintiff avers that when he rebuffed defendant Hernandez, the defendant refused to allow plaintiff to work on two separate days in January 2011.

A. Legal Standards

"The Eighth Amendment prohibits cruel and unusual punishment in penal institutions. Whether a specific act constitutes cruel and unusual punishment is measured by `the evolving standards of decency that mark the progress of a maturing society.'" Wood v. Beauclair, 692 F.3d 1041, 1045-46 (9th Cir. 2012) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). Sexual harassment that includes physical assault is a clear violation of the Eighth Amendment. Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). However, "the Eighth Amendment's protections do not necessarily extend to mere verbal sexual harassment." Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004) (citations omitted). Moreover, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson, 503 U.S. at 9. "In evaluating a prisoner's claim, courts must consider whether `the officials act [ed] with a sufficiently culpable state of mind' and if the alleged wrongdoing was objectively `harmful enough' to establish a constitutional violation." Hudson, 503 U.S. at 8 (citation and internal quotation marks omitted); accord, Wood, 692 F.3d at 1046.

The court has previously recounted the standards applicable to an Eighth Amendment verbal harassment claim in the prison context:

Leinweber v. Moore, Case No. 2:06-cv-1068 MCE DAD P, 2006 WL 3489359, *3 (E.D. Cal. 2006) (allegation that defendant made two sexual comments about the plaintiff's mother, a former correctional officer, failed to state a cognizable claim on initial screening of complaint pursuant of 28 U.S.C. § 1915A).

B. Analysis

Viewing the evidence before the court on summary judgment in the light most favorable to plaintiff, the court must initially determine whether defendant Hernandez's alleged statements to plaintiff and brief touch were "objectively harmful enough to establish a constitutional violation" and, if so, whether the record supports a reasonable inference that defendant Hernandez acted with a "sufficiently culpable state of mind." Hudson, 503 U.S. at 8 (citation and internal quotation marks omitted). "[T]he objective component of an Eighth Amendment claim is . . . contextual." Id. See also Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (the "inmate must objectively show that he was deprived of something sufficiently serious") (citation and internal quotation marks omitted); Wood, 692 F.3d at 1046 (alleged wrongdoing must be "objectively harmful enough to establish a constitutional violation") (citation and internal quotation marks omitted). For the reasons set forth below, the court finds that plaintiff's evidence of two or three inappropriate remarks and a single brief nonsexual touch on a given day, preceded by a similar comment one month before, even if true, do not, objectively, establish conduct sufficiently harmful to establish a constitutional violation.

As noted above, more egregious allegations than these have been found nonactionable. See Leinweber, 2006 WL 3489359 at*3 (cited cases); see also Austin, 367 F.3d at 1169 (upholding summary judgment in favor of the defendant correctional officer on Eighth Amendment claim that the defendant, "[w]hile still in the control booth . . . allegedly unzipped his pants, exposed his penis to [plaintiff], who is black, and said `come suck this white dick, boy,' while shaking his exposed penis") (citing Blueford v. Prunty, 108 F.3d 251, 254-55 (9th Cir.1997) (according qualified immunity to prison guard who allegedly engaged in "vulgar same-sex trash talk" with inmates); and Somers v. Thurman, 109 F.3d 614, 624 (9th Cir.1997) (according qualified immunity to female correctional officers who allegedly gawked and made improper statements about plaintiff, a male inmate, when he showered).

Nor does evidence of defendant Hernandez's touching of plaintiff, even if true, elevate his conduct to a cognizable Eighth Amendment claim. In this regard, the Ninth Circuit has found more blatant sexual touching to be nonactionable. In Watison, 668 F.3d at 1112-14, the Ninth Circuit affirmed the district court's dismissal of an Eighth Amendment sexual harassment claim against a correctional officer who allegedly entered plaintiff's cell while he was on the toilet, rubbed against plaintiff's thigh while smiling in a sexual manner, then left plaintiff's cell laughing. The Ninth Circuit concluded that the humiliation plaintiff allegedly suffered from this incident did "not rise to the level of severe psychological pain required to state an Eighth Amendment claim," id. at 1113, and that defendant's "alleged wrongdoing was not objectively harmful enough to establish a constitutional violation," id. at 1114 (citations and internal quotation marks omitted).11

For these reasons, evidence of defendant Hernandez's statements to and brief touching of plaintiff cannot be said to be sufficient to establish a constitutional violation. Evidence of defendant's pattern and reputation of engaging in sexual chatter, "games" or inappropriate contact with other inmates are irrelevant to plaintiff's Eighth Amendment claim, even if those other acts were witnessed by plaintiff. Liability under § 1983 requires a clear link between the defendant's challenged conduct and the alleged constitutional deprivation experienced by plaintiff. Johnson, 588 F.2d at 743 (liability under § 1983 requires that the defendant "does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made").

Finally, the parties' factual disputes as to dates and reasons defendant Hernandez refused to permit plaintiff to work two days in January 2011 are not material to plaintiff's Eighth Amendment claim. "The Constitution does not create a property or liberty interest in prison employment." Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986) (cited with approval in Walker v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004). Plaintiff's assignment to, and temporary removal from, his linebacker job in the Facility C satellite kitchen was a matter within the discretion of prison officials.

In short, drawing all reasonable inferences from the evidence before the court on summary judgment in plaintiff's favor, the court finds that defendant Hernandez's statements to plaintiff and brief touch were not "objectively harmful enough to establish a constitutional violation" under the Eighth Amendment. Hudson, 503 U.S. at 8 (citation and internal quotation marks omitted). Under governing case law, no rational trier of fact could find otherwise. See Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000) ("A scintilla of evidence or evidence that is merely colorable . . . does not present a genuine issue of material fact" but rather there "must be enough doubt for a `reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion."); Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993) ("When the non-moving party relies on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact.") Thus, the court need not determine whether the evidence on summary judgment supports a reasonable inference that defendant Hernandez engaged in the challenged conduct with a "sufficiently culpable state of mind." Id. Accordingly, summary judgment will be granted in favor of defendant Hernandez with respect to plaintiff's Eighth Amendment claim.

II. Retaliation

Plaintiff contends that defendant Hernandez retaliated against him for submitting an administrative inmate grievance challenging defendant's alleged sexual harassment of plaintiff. Plaintiff alleges that defendant Hernandez retaliated against him in the following ways: (1) on January 10, 2011, by submitting an untrue Chrono 128-B stating that plaintiff was unable to perform his job in the prison kitchen on January 2, 2011, and that defendant Hernandez would not work with plaintiff in the future; (2) throwing a copy of that chrono in plaintiff's face on the same day; and (3) thereafter, by miscellaneous cell searches, confiscation of property, attacks by other inmates, a mental health evaluation resulting in plaintiff's placement in ad seg, and plaintiff's meals being "messed with."

A. Legal Standards

To state a First Amendment retaliation claim, plaintiff must allege plausible facts that support the following five 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." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Direct and tangible harm will support a First Amendment retaliation claim even without demonstration of a chilling effect on the further exercise of a prisoner's First Amendment rights. Id. at 568 n.11; see also Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

The alleged retaliatory action need not, in itself, amount to a constitutional violation. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (to prevail on a retaliation claim, plaintiff need not "establish an independent constitutional interest" was violated); see also Hines v. Gomez, 108 F.3d 265, 268 (9th Cir. 1997) (upholding jury determination of retaliation based on filing of a false rules violation report); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (transfer of prisoner to a different prison constituted adverse action for purposes of retaliation claim). Rather, the interest asserted in a retaliation claim is the right to be free of conditions that would not have been imposed but for the alleged retaliatory conduct.

Filing administrative grievances and initiating litigation are constitutionally protected activities, and it is impermissible for prison officials to retaliate against prisoners for engaging in those activities. Rhodes, 408 F.3d at 567-68; 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.") (citing Brodheim, 584 F.3d at 1269); Austin, 367 F.3d at 1171 (prisoner's allegation that he was "punished for filing a grievance" against a correctional officer stated a First Amendment retaliation claim).

B. Analysis

Plaintiff's contention that defendant Hernandez submitted a false Chrono 128-B against him on January 10, 2011, in retaliation for plaintiff's submission of his administrative inmate grievance on January 8, 2009, states a prima facie claim under the First Amendment, as may plaintiff's contention that defendant threw the chrono in plaintiff's face.

The court initially notes that plaintiff's further claims of retaliation by defendant — cell searches, confiscation of property, attacks by other inmates, a mental health evaluation leading to ad seg placement (including the alleged actions of correctional officers Brown and Peterson), and plaintiff's meals being "messed with" — are far too vague and attenuated to reasonably support any inferred link between defendant's challenged conduct and the alleged retaliatory acts. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) ("The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation."). Plaintiff's deposition testimony that he heard defendant Hernandez say to a third party, the week after January 10, 2011, that defendant would "get him" (Roberts Dep. 29:1-22), also lacks the requisite specificity and linkage. While "[t]he requisite causal connection can be established . . . by setting in motion a series of acts by others," Starr v. Baca, 652 F.3d 1202, 1218 (9th Cir. 2011), plaintiff has presented no evidence upon which the finder of fact could reasonably infer that defendant Hernandez set in motion any series of acts resulting in retaliatory conduct toward plaintiff after January 10, 2011. Accordingly, below, the court's analysis is limited to plaintiff's claims concerning defendant Hernandez's allegedly retaliatory submission of the subject 128-B Chrono on January 10, 2011 and the throwing of that chrono at plaintiff.

Defendant Hernandez contends that the evidence before the court on summary judgment d demonstrates that he had no knowledge of plaintiff's filing of an inmate grievance against him when he submitted the Chrono 128-B, or gave plaintiff a copy of it, and therefore that plaintiff has simply presented no evidence of retaliatory motive on his part. In fact, plaintiff's own deposition testimony supports the defendant's position in this regard. There, plaintiff testified that he submitted his inmate grievance by putting it in the regular mail on January 8, 2011, and did not provide defendant Hernandez with a copy. (Roberts Dep. 90:25-91:5, 17-9.) Plaintiff merely speculated during his deposition that defendant Hernandez may have known about plaintiff's inmate grievance when defendant Hernandez submitted the 128B Chrono on January 10, 2011, because plaintiff had warned defendant back on January 2 that he was going to "write him up" (id. at 91:5-6, 92:17-21); and because "most likely some of the informers working in the environment working where I was working [] could have told him" (id. at 91:26-8). However, plaintiff conceded at his deposition that no one told him they had informed defendant Hernandez of plaintiff's filing of an inmate grievance prior to January 10, 2011. (Id. at 92:1-21).

Review of the evidence before the court on summary judgment also supports defendant's argument on this point. Plaintiff's inmate grievance, signed and mailed by plaintiff on January 8, 2011, is marked received on January 12, 2011. (Pl.'s Form CDC 602 (ECF No. 29-4 at 11).) Simply put, plaintiff has presented no evidence on summary judgment that defendant Hernandez knew about plaintiff's filing of an inmate grievance against him when he submitted the Chrono 128-B, and gave plaintiff a copy of it, on January 10, 2011.

Plaintiff's failure to come forward with any evidence of retaliatory motive on summary judgment fatally undermines his prima facie claims. Speculation, such as that relied upon by plaintiff, will not suffice at this stage of the litigation. Moreover, defendant Hernandez had a legitimate correctional purpose in completing and submitting the informational chrono — to maintain efficient meal service at the Facility C satellite kitchen. In addition, the impact of the issuance of the chrono in question on plaintiff was di minimis. The chrono was informational only; it did not result in disciplinary action against plaintiff. Rather, it merely prevented him from working in the kitchen when defendant Hernandez was assigned to supervise the Facility C satellite kitchen. Even this restriction was short lived, based on plaintiff's own deposition testimony that he subsequently worked under defendant Hernandez's supervision without incident, other than defendant allegedly telling another inmate only that plaintiff didn't know how to cook. (Roberts Dep. 104:4-12, 105:7-106:2.)

The absence of evidence at summary judgment demonstrating retaliatory motive also undermines plaintiff's claim based on defendant Hernandez allegedly throwing a copy of the subject chrono in plaintiff's face. Even if proven, such conduct fails to demonstrate "direct and tangible harm" sufficient to sustain a retaliation claim. As previously noted, an alleged wrongdoing must be "objectively `harmful enough' to establish a constitutional violation" Hudson, 503 U.S. at 8.

For these reasons, the court finds that plaintiff has not come forward with sufficient evidence to sustain a reasonable inference that defendant Hernandez retaliated against plaintiff for exercising his right to submit an inmate. Accordingly, summary judgment will be granted in favor of defendant Hernandez with respect to plaintiff's First Amendment retaliation claim as well.

CONCLUSION

For all of the reasons set forth above, the court finds no material issue of fact precluding the grant of summary judgment. Viewing the evidence submitted to the court in the light most favorable to plaintiff, the court also finds that defendant Hernandez is entitled to summary judgment in his favor with respect to both of plaintiff's claims. Accordingly, IT IS HEREBY ORDERD that: