1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHRISTIAN OWENS, Case No. 21-cv-02917-HSG

8 Plaintiff, ORDER DENYING DEFENDANT FUGATE'S MOTION FOR SUMMARY 9 v. JUDGMENT; REFERRING CASE TO

PRO SE PRISONER MEDIATION

10 D. FUGATE, PROGRAM; STAYING ACTION;

DIRECTIONS TO CLERK

11 Defendant. Re: Dkt. No. 20 12

13 14 Plaintiff, an inmate at Pelican Bay State Prison (“PBSP”), has filed a pro se action 15 pursuant to 42 U.S.C. § 1983, alleging that PBSP officer C. Fugate retaliated against him in 16 violation of the First Amendment. Defendant Fugate has filed a summary judgment motion. Dkt. 17 No. 20. Plaintiff has not filed an opposition and defendant Fugate has not filed a reply, and the 18 deadline to file both pleadings has passed. For the reasons set forth below, the Court DENIES 19 defendant Fugate’s motion for summary judgment. 20 DISCUSSION 21 I. Factual Background 22 A. Complaint 23 Plaintiff makes the following relevant allegations in his complaint. On October 23, 2019, 24 Plaintiff filed a grievance against PBSP correctional officer Bellinger for misconduct and abuse of 25 authority (“Bellinger Grievance”). In response, Officer Bellinger told Plaintiff that Plaintiff did 26 not realize how difficult his prison time would be as long as he stayed in 7 Building on B Yard 27 (also referred to B7 Building). Dkt. No. 1 at 5. PBSP correctional officers retaliated against 1 November 21, November 22, and December 2, 2019. Plaintiff was prevented from timely filing a 2 grievance regarding the excessive cell searches because correctional officers would repeatedly 3 claim that there were no grievance forms in the office. Dkt. No. 1 at 5-6. 4 Defendant Fugate retaliated against Plaintiff in the following ways. 5 Each time Plaintiff tried to obtain a grievance form from the office, defendant Fugate claim 6 would claim that there were no grievance forms available and would threaten to write Plaintiff up 7 for holding up the program. Dkt. No. 1 at 6. 8 Defendant Fugate told Plaintiff that he would go out of his way to create a reason to write 9 Plaintiff up for a disciplinary violation. Dkt. No. 1 at 6. 10 On or about January 11, 2020, other inmates told Plaintiff that defendant Fugate had been 11 campaigning to get Plaintiff removed from B7 Building since December 25, 2019 because of 12 Plaintiff’s grievance activity, including the Bellinger Grievance. Specifically, inmates Jones and 13 Drew reported that when they requested cell moves, defendant Fugate told them that he would 14 only accommodate cell move requests from the Black inmates if inmates Jones and Drew could 15 get Plaintiff to move out of B7 Building. Dkt. No. 1 at 6-8. 16 On January 20, 2020, Plaintiff filed a grievance against defendant Fugate regarding his 17 retaliatory behavior. The following day, defendant Fugate called Plaintiff to the B7 Building 18 rotunda, claiming that the lieutenant wanted to see Plaintiff. When Plaintiff arrived at the rotunda, 19 there was no lieutenant, correctional officer, or counselor in the rotunda. Defendant Fugate closed 20 the B7/C-Section main door and began to interrogate Plaintiff about the grievance that he had 21 filed. Plaintiff quickly ended the situation by explaining that he did not want to speak to 22 defendant Fugate about the grievance, did not want to speak to defendant Fugate at all, wanted 23 defendant Fugate to stop harassing him, and wanted defendant Fugate to let him go back to his cell 24 so that he could get to computer class. Dkt. No. 1 at 9-10. Plaintiff states that defendant Fugate 25 had previously stated that he would look for any reason to issue a disciplinary violation to Plaintiff 26 so Plaintiff was worried that he would be issued a disciplinary violation for holding up the 27 program. Plaintiff further states that defendant Fugate told him that he and the other B7 Building 1 was constantly filing grievances against correctional staff. Dkt. No. 1 at 10. 2 B. Additional Background 3 Plaintiff was able to obtain grievance forms from the library even when unable to obtain 4 the forms from the rotunda/office. However, Plaintiff says he cannot just walk to the law library 5 and grab legal materials or forms. To go to the law library, Plaintiff is required to have a reason to 6 be in that area, such as going to school or class. Dkt. No. 20-2 at 22. Plaintiff passed near the law 7 library when he went to computer class, which was at least once a week. Dkt. No. 20-2 at 10, 22. 8 Plaintiff was not moved out of Building B7. As of October 1, 2021, when Plaintiff sat for 9 his deposition, Plaintiff was still housed in Building B7. Dkt. No. 20-2 at 21. Neither inmates 10 Jones or Drew, or another inmate Karl, took any action to get Plaintiff to move out of Building B7. 11 Dkt. No. 20-2 at 13-14. 12 Defendant Fugate never issued a disciplinary writeup. Defendant Fugate would play 13 “minor games” with Plaintiff to harass him, such as trying to close the main door before Plaintiff 14 could get out and repeatedly telling him that things were now personal between them and that he 15 would look for any little reason to write Plaintiff up for a disciplinary violation. Dkt. No. 20-2 at 16 11-12, 15. 17 II. Motion for Summary Judgment 18 A. Summary Judgment Standard 19 Summary judgment is proper where the pleadings, discovery and affidavits show there is 20 “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 21 law.” See Fed. R. Civ. P. 56(a) (2014). Material facts are those that may affect the outcome of the 22 case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material 23 fact is genuine if the evidence is such that a reasonable jury could return a verdict for the 24 nonmoving party. See id. 25 A court shall grant summary judgment “against a party who fails to make a showing 26 sufficient to establish the existence of an element essential to that party’s case, and on which that 27 party will bear the burden of proof at trial [,] . . . since a complete failure of proof concerning an 1 See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial 2 burden of identifying those portions of the record that demonstrate the absence of a genuine issue 3 of material fact. Id. at 323. The burden then shifts to the nonmoving party to “go beyond the 4 pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and 5 admissions on file, ‘designate ‘specific facts showing that there is a genuine issue for trial.’” See 6 id. at 324 (citing Fed. R. Civ. P. 56(e)). 7 For purposes of summary judgment, the court must view the evidence in the light most 8 favorable to the nonmoving party; if the evidence produced by the moving party conflicts with 9 evidence produced by the nonmoving party, the court must assume the truth of the evidence 10 submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). 11 The court’s function on a summary judgment motion is not to make credibility determinations or 12 weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc., v. 13 Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 14 B. Legal Standard for First Amendment Retaliation 15 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 16 elements: (1) An assertion that a state actor took some adverse action against an inmate 17 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 18 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 19 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (footnote omitted). 20 Prisoners may not be retaliated against for exercising their right of access to the courts. See 21 Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995). 22 A prisoner must at least allege that he suffered harm, since harm that is more than minimal 23 will almost always have a chilling effect. Rhodes, 408 F.3d at 567-68 n.11; see Gomez v. Vernon, 24 255 F.3d 1118, 1127-28 (9th Cir. 2001) (prisoner alleged injury by claiming he had to quit his law 25 library job in the face of repeated threats by defendants to transfer him because of his complaints 26 about the administration of the library). The adverse action in the first element of a retaliation 27 claim need not independently deprive the plaintiff (prisoner or not) of a constitutional right. See, 1 defeat claim for retaliatory firing for First Amendment expression); see also Vignolo v. Miller, 120 2 F.3d 1075, 1078 (9th Cir. 1997) (discharge from prison job for refusal to waive constitutional right 3 states claim despite no constitutional right to prison job). Harm that “would chill a ‘person of 4 ordinary firmness’ from complaining” is sufficient. Shepard v. Quillen, 840 F.3d 686, 691 (9th 5 Cir. 2016) (quoting Rhodes, 408 F.3d at 569) (placement in administrative segregation or even 6 threat to do so on its own amounts to adverse action satisfying the first element). The threat of 7 harm can be a sufficiently adverse action to support a retaliation claim. Id. at 688-89; Brodheim v. 8 Cry, 584 F.3d at 1270. The prisoner need not demonstrate a total chilling of his First Amendment 9 rights to establish a retaliation claim. See Rhodes, 408 F.3d at 568-69 (rejecting argument that 10 inmate did not state claim for relief because he had been able to file inmate grievances and 11 lawsuit). That a prisoner’s First Amendment rights were chilled, though not necessarily silenced, 12 is enough. Id. at 569 (destruction of inmate’s property and assaults on inmate enough to chill 13 inmate’s First Amendment rights and state retaliation claim, even if inmate filed grievances and 14 lawsuit). 15 C. Analysis 16 Defendant Fugate does not address, or otherwise dispute, elements two, three, four and five 17 of the First Amendment retaliation claim. He focuses solely on the first element – whether he 18 took adverse action against Plaintiff. Defendant Fugate argues that he is entitled to summary 19 judgment because the harms alleged – refusal to give Plaintiff grievance forms, an alleged 20 campaign to remove Plaintiff from Building B7, alleged threats to write up Plaintiff for a 21 disciplinary violation, and an allegedly threatening conversation in the rotunda – are de minimis, 22 non-actionable harms that fail to state a First Amendment retaliation claim. Specifically, 23 defendant Fugate makes the following arguments. First, forcing Plaintiff to get grievance forms 24 from the law library, rather than the rotunda office, was a trivial inconvenience that would have 25 had no material impact on Plaintiff’s ability to file grievances. Second, the denial of other 26 inmates’ cell move requests constituted adverse action against those inmates, not against Plaintiff; 27 and were a de minimis harm because none of these inmates took adverse action against Plaintiff. 1 trivial in nature in that he threatened Plaintiff with only “minor” infractions and only played 2 “minor” games; and because defendant Fugate did not follow through on these threats. Fourth, the 3 conversation in the rotunda was not actionable because threatening a minor disciplinary write-up 4 is a de minimis harm, defendant Fugate did not physically touch Plaintiff or attempt to do so and 5 could not have done so because they were separated by a concrete wall with a small peephole, and 6 Plaintiff was not trapped in some sort of hidden room. Dkt. No. 20 at 10-12. 7 Defendant Fugate is not entitled to summary judgment. Defendant Fugate has incorrectly 8 characterized the governing law, and misleadingly ignored the cumulative effect of the actions 9 alleged. 10 Defendant Fugate argues that the alleged threats constitute, at most, de minimis harm and 11 not an adverse action because defendant Fugate did not carry out any of his threats and there was 12 no physical harm. Ninth Circuit law states the opposite. The Ninth Circuit has clearly held that a 13 prisoner need not show harm to succeed on a First Amendment retaliation claim, as long as there 14 is a chilling effect, and held that “the mere threat of harm can be an adverse action, regardless of 15 whether it is carried out because the threat itself can have a chilling effect.” Brodheim, 584 F.3d 16 at 1270. The threat of harm need not be explicit or specific to constitute an adverse action. Id. 17 “The power of a threat lies not in any negative actions eventually taken, but in the apprehension it 18 creates in the recipient of the threat.” Id. at 1271. 19 A First Amendment retaliation claim does not require that the prison official carry out his 20 threats or cause physical harm. Defendant Fugate’s threats constituted an adverse action in 21 violation of the First Amendment because, making all reasonable inferences in Plaintiff’s favor at 22 this stage, they caused him to feel apprehensive. Defendant Fugate threatened to have Plaintiff 23 written up for disciplinary violations and urged other inmates to convince Plaintiff to move away 24 from Building B7. If defendant Fugate had followed through on these threats, there would have 25 been a significant negative effect on Plaintiff. A write up for a minor disciplinary violation can 26 result in various kinds of punishment, including a loss of good-time credit; suspension of 27 privileges such as receiving packages, canteen purchases, dayroom time, or receiving visitors; or 1 inmate’s parole hearing date and/or release from prison. Given the restrictive nature of prison life, 2 the suspension of privileges or confinement to quarters can drastically alter the quality of an 3 inmate’s life. If other inmates had been convinced to help move Plaintiff away from the building, 4 they might attempt to persuade Plaintiff by attacking him or intimidating him. Dkt. No. 20-2 at 5 13. A jury could reasonably conclude that living under the constant threat of having his parole 6 hearing date or release date pushed back, living a more restrictive life without privileges, and 7 being attacked by other inmates would have a chilling effect on Plaintiff. 8 Finally, defendant Fugate’s actions should not be viewed separately and in isolation. 9 Plaintiff has described defendant Fugate repeatedly informing him that he wanted to retaliate 10 against Plaintiff for filing grievances against prison staff; repeatedly telling other inmates that they 11 would suffer, i.e. have their cell move requests denied, unless they convinced Plaintiff to move; 12 and saying that he would find any reason to issue Plaintiff a disciplinary violation. Crediting 13 Plaintiff’s version of the facts, as the Court must at this stage, there is a triable issue of fact as to 14 whether the threats reasonably caused Plaintiff to feel apprehensive because defendant Fugate 15 interfered with and threatened various aspects of his life (i.e., his ability to easily file grievances, 16 his ability to attend programming, his ability to retain good-time credits or privileges, and his 17 ability to coexist peacefully with other inmates). The repeated and pervasive nature of these 18 threats also could reasonably cause Plaintiff to believe that sooner or later defendant Fugate would 19 carry out one or more of his threats or otherwise negatively affect Plaintiff’s life. A jury could 20 reasonably conclude that these actions had a chilling effect on Plaintiff. 21 Nor is defendant Fugate entitled to qualified immunity. Qualified immunity is an 22 entitlement, provided to government officials in the exercise of their duties, not to stand trial or 23 face the other burdens of litigation. Saucier v. Katz, 533 U.S. 194, 200 (2001). The doctrine of 24 qualified immunity attempts to balance two important and sometimes competing interests — “the 25 need to hold public officials accountable when they exercise power irresponsibly and the need to 26 shield officials from harassment, distraction, and liability when they perform their duties 27 reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks and 1 officials in order to allow them to act “‘swiftly and firmly’” in situations where the rules 2 governing their actions are often “‘voluminous, ambiguous, and contradictory.’” Mueller v. 3 Auker, 576 F.3d 979, 993 (9th Cir. 2009) (citing Davis v. Scherer, 468 U.S. 183, 196 (1984)). 4 “The purpose of this doctrine is to recognize that holding officials liable for reasonable mistakes 5 might unnecessarily paralyze their ability to make difficult decisions in challenging situations, 6 thus disrupting the effective performance of their public duties.” Id. To determine whether an 7 officer is entitled to qualified immunity, the Court must consider whether (1) the officer’s conduct 8 violated a constitutional right, and (2) that right was clearly established at the time of the incident. 9 Pearson, 555 U.S. at 232. Courts are not required to address the two qualified immunity issues in 10 any particular order, and instead may “exercise their sound discretion in deciding which of the two 11 prongs of the qualified immunity analysis should be addressed first in light of the circumstances in 12 the particular case at hand.” Id. at 236. To the extent there are factual disputes regarding what the 13 defendant actually did, at the summary judgment stage the Court must resolve those disputes in 14 plaintiff’s favor in assessing whether defendant’s conduct violated a clearly established right. See 15 Tolan v. Cotton, 572 U.S. 650, 655-56 (2014) (first prong of qualified immunity inquiry askes 16 “whether the facts, ‘[t]aken in the light most favorable to the party asserting the injury, . . . show 17 the officer’s conduct violated a [federal] right[.]’” (citing to Saucier v. Katz, 533 U.S. 194, 201 18 (2001)) (alterations in original). 19 At the time that Fugate acted in 2019, Shepard and Brodheim clearly established that the 20 threat of harm can satisfy the adverse action element of First Amendment retaliation claim. 21 Shepard, 840 F.3d at 691 (“A jury could certainly find that the threat of administrative segregation 22 would chill a ‘person of ordinary firmness’ from complaining about offer misconduct.”) (quoting 23 Rhodes, 408 F.3d at 569); Brodheim, 584 F.3d at 1270 (“Thus, the mere threat of harm can be an 24 adverse action, regardless of whether it is carried out because the threat itself can have a chilling 25 effect.”) (emphasis in original). In Brodheim, the Ninth Circuit specified that the prisoner-plaintiff 26 need not establish an “explicit, specific threat of discipline or transfer if he failed to comply;” 27 rather, the question is whether, “the record, taken in the light most favorable to the plaintiff, 1 that some form of punishment or adverse regulatory action would follow.” Brodheim, 584 F.3d at 2 1270. In Brodheim, the inmate plaintiff submitted an interview request to correctional officer Cry, 3 disputing Cry’s categorization and rejection of a grievance regarding correctional officer Hearsum. 4 Cry rejected the request and added the following handwritten notation: “The 695 rejection forms 5 as noted. Untimely for a 5-10-01 issue. I’d also like to warn you to be careful what you write, 6 req[u]est on this form.” The Ninth Circuit held that a plaintiff could prevail on a retaliation claim 7 where “‘the record, taken in the light most favorable to the plaintiff, reveals statements by the 8 defendant that a reasonable factfinder could . . . interpret as intimating that some form of 9 punishment or adverse regulatory action would follow.’” Id. at 1270 (citing Okwedy v. Molinari, 10 333 F.3d 339, 343 (2d Cir. 2003)). The Ninth Circuit reversed the district court’s finding that 11 Brodheim had produced inadequate evidence of an adverse action. The Ninth Circuit held that 12 there was a genuine issue of fact as to whether Cry’s handwritten notation intimated that some 13 form of punishment or adverse regulatory action would follow a failure to comply, and suggested 14 that if the jury so found, that conduct could satisfy the adverse action element of a First 15 Amendment retaliation claim. Id. at 1270-71. 16 Similar to Brodheim, viewing the record in the light most favorable to Plaintiff and 17 accepting his version of events as true, there is a triable issue of fact as to whether defendant 18 Fugate’s harassment and threats constituted adverse actions because they could be viewed as 19 intimating that some form of punishment or adverse regulatory action would follow. And if 20 Plaintiff’s version of the facts is shown to be true, any reasonable officer would have known that 21 such threats violated Plaintiff’s constitutional rights. 22 For the foregoing reasons, the Court DENIES defendant Fugate’s motion for summary 23 judgment. 24 CONCLUSION 25 For the reasons set forth above, the Court orders as follows. 26 1. The Court DENIES defendant Fugate’s motion for summary judgment. Dkt. No. 27 20. 1 proceedings pursuant to the Pro Se Prisoner Mediation Program. Such proceedings shall take 2 || place within 120 days of the date this order is filed, or as soon thereafter as Magistrate Judge 3 || Illman’s calendar will permit. Magistrate Judge Illman shall coordinate a place, time and date for 4 || one or more settlement conferences with all interested parties and/or their representatives and, 5 within fifteen days of the conclusion of all settlement proceedings, shall file with the Court a 6 || report thereon. The Clerk is directed to serve Magistrate Judge Ilman with a copy of this order 7 and to notify Magistrate Judge Illman that a copy of the Court file can be retrieved from the 8 || Court’s electronic filing database. 9 3. In view of the referral, further proceedings in this case are hereby STAYED. The 10 || Clerk shall ADMINISTRATIVELY CLOSE this case until further order of the Court. If the case 11 is not settled, the Court will enter a new scheduling order for further proceedings. 12 This order terminates Dkt. No. 20. 13 IT IS SO ORDERED. |] Dated:2/16/2022 Alapurel 5 Mh

HAYWOOD S. GILLIAM, JR.

= 16 United States District Judge

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