1 5 3 .

6 □ 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 D’RON BOTTS, Case No.: 3:19-cv-01387-DMS-RBM My Plaintiff, 12 v. REPORT AND . RECOMMENDATION OF USS. 13 MAGISTRATE JUDGE RE: ill SunPPARD □□□ DENYING DEFENDANTS’ MOTION ° ” FOR SUMMARY JUDGMENT 15 Defendants. 16 [Doc. 43] . 17 I. INTRODUCTION _ 18 Plaintiff D’Ron Botts (“Plaintiff”), a state prisoner proceeding in forma pauperis 19 || and represented by counsel, brings a civil rights action pursuant to 42 U.S.C. § 1983 against 20 Defendants Warden Paramo, Correctional Officer (“C/O”) Newman!, C/O Camacho, C/O 21 ||Legue?, C/O Rodriguez, and C/O Sheppard} (collectively, “Defendants”).4 (Doc. 8.) 22 23 24 ' Warden Paramo and C/O Newman were dismissed from the instant case on July 6, 2021. See discussion infra p. 3, section II.B. 25 ||? Defendants refer to this Defendant by the last name “Legge” in their MSJ; however, the 6 || Court will use the spelling utilized in Plaintiff's FAC. (Docs. 8, 43.) □ 3 Defendants refer to this Defendant by the last name “Shepherd,” in their MSJ; however, 27 || the Court will use the spelling utilized in Plaintiff's FAC. (/d.) 28 * Plaintiff's FAC also alleges claims against C/O Miller and C/O Mitchell; however, both have not been served or made appearances to date.

1 || Plaintiff alleges Defendants retaliated against him in violation of the First Amendment after 2 || Plaintiff allegedly reported corruption at Richard J. Donovan Correctional Facility (“RJD”) 3 California Department of Corrections and Rehabilitation (“CDCR”) Director, Brian 4 ||Duffy. (Doc. 8 at 3, J] 5-8.) Plaintiff also alleges a failure to protect claim under the 5 Eighth Amendment, negligence under California Government Code section 844.6, and a 6 || violation of civil rights under the Bane Act, California Civil Code section 52.1, after 7 || Plaintiff was allegedly physically attacked by another RJD inmate (“Inmate Tillman”). Ud. 8 9.). Presently before the Court is Defendants’ motion for summary judgment (“MSJ”). 9 ||(Doc. 43.) Plaintiff filed an opposition (“Opposition”) to Defendants’ MSJ on August 27, 10 |) 2021, and Defendants filed a reply (“Reply”) on September 10, 2021. (Docs. 62, 70.) 11 For the reasons outlined below, the undersigned issues a Report and 12 ||Recommendation as to Defendants’ MSJ. See 28 U.S.C. § 636(b)(1)(B); CivLR 72.1(c) 13 72.3(a). After a thorough review of the pleadings, papers, prior orders of the Court, 14 ||the facts, and applicable law, the undersigned respectfully RECOMMENDS that 15 || Defendants’ motion for summary judgment be DENIED. 16 . I. FACTUAL & PROCEDURAL BACKGROUND 17 A. Allegations in FAC 18 Plaintiff initiated this action by filing a complaint on July 24, 2019. (Doc. 1.) On 19 |) August 5, 2019, the Court screened the complaint under 28 U.S.C. § 1915 and granted 20 || Plaintiff leave to proceed in forma pauperis. (Doc. 6.) On September 11, 2019, Plaintiff 21 || filed a first amended complaint (“FAC”) through his counsel of record under 42 U.S.C. § 22 1/1983 for retaliation under the First Amendment, failure to protect under the Eighth 23 || Amendment, negligence, and a violation of the Bane Act against Defendants. (Doc. 8.) 24 Plaintiff alleges in his FAC that around October 4, 2017, Plaintiff provided visiting 25 ||CDCR Director Duffy information about corruption at RJD after CDCR Director Duffy 26 asked Plaintiff for his thoughts about the prison. (/d. at 3, 5-7.) Shortly thereafter, 27, || Plaintiff alleges he began receiving threats from Defendants, including death threats. □□□□ 28 || 9-10.) On or around October 13, 2017, Plaintiff alleges, C/O Sheppard, C/O Camacho, . 4 .

1 ||C/O Newman, and Does 11-14 orchestrated retaliation against Plaintiff by instructing 2 Inmate Tillman to batter Plaintiff. Ud., 11.) After breakfast, Inmate Tillman approached 3 Plaintiff, said, “[y]ou know who sent me”, and proceeded to batter Plaintiff. (/d., 12- 4 During the attack, Plaintiff alleges C/O Legue and C/O Rodriguez cheered, laughed, 5 || and made boxing motions as they saw Inmate Tillman batter Plaintiff. (/d. at 4, □ 15-16.) 6 || After a few minutes, C/O Legue and C/O Rodriguez told both Inmate Tillman and Plaintiff 7 to get down. Ud., § 17.) Plaintiff bled through his eye during the attack and alleges he is 8 || blind in his left eye as a result of the attack. (d., fj 20-22.) □□ 9 B. Surviving Causes of Action in FAC 10 |] . On July 2, 2021, the parties filed a joint motion to dismiss Defendants C/O Newman Warden Paramo, which District Judge Sabraw granted without prejudice on July 6, 12 |)2021. (Docs. 46, 47.) Accordingly, Plaintiffs sixth and seventh causes of action for 13 ||negligent retention and supervisory liability against Warden Paramo have been dismissed. 14 |}On August 30, 2021, the parties filed a joint motion to dismiss Defendant C/O Camacho 15 || from the Eighth Amendment failure to protect and negligence causes of action, which 16 || District Judge Sabraw granted without prejudice on September 1, 2021. (Docs. 66, 68.) 17 The surviving causes of action in Plaintiff's FAC are as follows: (1) retaliation under 18 First. Amendment against C/O Camacho, C/O Legue, C/O Rodriguez, and C/O 19 || Sheppard; (2) failure to protect under the Eighth Amendment against C/O Legue, C/O 20 ||Rodriguez, and C/O Sheppard; (3) negligence under California Government Code section 21 || 844.6 against C/O Legue, C/O Rodriguez, and C/O Sheppard; and (4) violation of the Bane 22 || Act under California Civil Code section 52.1 against C/O Camacho, C/O Legue, C/O 23 || Rodriguez, and C/O Sheppard.° : 24 25 tti—

l Il. LEGAL STANDARD 2 Federal Rule of Civil Procedure 56 empowers a court to enter summary judgment 3 factually unsupported claims or defenses to “secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). 5 || Summary judgment is appropriate if the materials in the record, together with the affidavits, 6 any, show that there is no genuine issue as to any material fact and that the moving party 7 entitled to judgment as a matter of law. FED. R. Civ. P. 56; Albino v. Baca, 747 F.3d 8 || 1162, 1168 (9th Cir. 2014) (en banc). 9 Each party’s position as to whether a fact is disputed or undisputed must be 10 supported by: (1) citation to particular parts of materials in the record, including but not 11 || limited to depositions, documents, declarations, or discovery; or (2) a showing that the 12 || materials cited do not establish the presence or absence of a genuine dispute or that the 13 || opposing party cannot produce admissible evidence to support the fact. FED. R. CIv. P. 14 ||56(c)(1). The court may consider other materials in the record not cited to by the parties, 15 || but it is not required to do so. FED. R. Civ. P. 56(c)(3). Ifa party supports its motion by 16 declaration, the declaration must set out facts that would be admissible in evidence and 17 || show that the affiant or declarant is competent to testify on the matters stated. FED. R. CIv. 18 ||P. 56(c)(4). An affidavit will not suffice to create a genuine issue of material fact if it is 19 ||“conclusory, self-serving . . . [and] lacking detailed facts and any supporting evidence.” 20 ||F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997). 21 The moving party bears the initial burden of demonstrating the absence of a genuine 22 ||issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). 23 || A fact is material if it could affect the outcome of the suit under the governing substantive 24 Jd. at 248. Where, as here, the opposing party will have the burden of proof at trial, 25 ||the moving party need only point out “that there is an absence of evidence to support the ||nonmoving party’s case.” Celotex, 477 U.S. at 325. 27 When a defendant seeking summary judgment has carried its burden under Rule 28 || 56(c), the burden shifts to the plaintiff who “must do more than simply show that there is

1 ||some metaphysical doubt as to.the material facts.” Scott v. Harris, 550 U.S. 372, 380 2 ||(2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 3 |/(1986)). The plaintiff “must come forward with specific facts showing that there is a 4 || genuine issue for trial.” Matsushita, 475 U.S. at 587 (internal citation omitted). If the 5 || plaintiff fails to make a sufficient showing of an essential element of its case, the defendant 6 entitled to judgment as a matter of law. Celotex, 477 U.S. at 322—23. In ruling on a 7 |\motion for summary judgment, the nonmoving party’s evidence is to be believed, and all 8 || justifiable inferences are to be drawn in that party’s favor. Anderson, 477 U.S. at 255.

IV. DISCUSSION

10 | A. — Exhaustion of Administrative Remedies .

11 “The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust 12 ‘such administrative remedies as are available’ before bringing suit to challenge prison 13 ||conditions.” Ross v. Blake, 578 U.S. 632,635 (2016) (quoting 42 U.S.C. § 1997e(a)). 14 || “There is no question that exhaustion is mandatory under the PLRA[.]” Jones vy. Bock, 549 15 199, 211 (2007) (citation omitted). The PLRA also requires that prisoners, when 16 || grieving their appeal, adhere to CDCR’s “critical procedural rules.” Woodford v. Ngo, 548 17 ||U.S. 81, 91 (2006). “[I]t is the prison’s requirements, and not the PLRA, that define the 18 || boundaries of proper exhaustion.” Jones, 549 U.S. at 218. 19 The exhaustion requirement is based on the important policy concern that prison 20 || officials should have “an opportunity to resolve disputes concerning the exercise of their 21 ||responsibilities before being haled into court.” Id. at 204. The “exhaustion requirement 22 ‘does not allow a prisoner to file a complaint addressing non-exhausted claims.” Rhodes v. 23 || Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010). Therefore, a prisoner must pursue an 24 || appeal through all levels of a prison’s grievance process as long as that process remains |lavailable to him. Ross, 578 U.S. at 632. : 26 || i. CDCR Exhaustion Requirements 27 CDCR established an “administrative remedy” for prisoners like Plaintiff to pursue 28 || before filing suit under Section 1983. Williams v. Paramo, 775 F.3d 1182 (9th Cir, 2015)

1 (citing Albino, 747 F.3d at 1172). Specifically, a California prisoner may appeal “any 2 || policy, decision, action, condition, or omission by the department or its staff that [he] can 3 ||demonstrate as having a material adverse effect upon his . . . health, safety, or welfare.” 4 || Cal. Code Regs., tit. 15, § 3084.1(a). 5 Since January 28, 2011, and during the times alleged in Plaintiff's FAC, Title 15 of 6 || the California Code of Regulations required three formal levels of appeal review. (Defs.’ 7 || Ex. 4 Decl. of E. Frijas, Doc. 43-6 at 1, 2.) Thus, in order to properly exhaust, a California 8 || prisoner must, within thirty calendar days of the decision or action being appealed, or 9 ||“upon first having knowledge of the action or decision being appealed, ...use a CDCR 10 || Form 602 (Rev. 08/09), Inmate/Parolee Appeal, to describe the specific issue under appeal 11 |/and the relief requested.” (/d.) The CDCR Form 602 “shall be submitted to the appeals 12 || coordinator at the institution.” (d.) 13 Defendants submit the declaration of E. Frijas who is the “Grievance Coordinator at 14 ||[RJD] ... and is familiar with the processing of inmate grievances at RJD[,]” wherein E. 15 || Frijas declares Plaintiff submitted a CDCR Form 602 appeal on October 25, 2017, which 16 || was initially rejected and resubmitted on November 5, 2017. (Defs.’ Ex. 4 Decl. of E. 17 ||Frijas, Doc. 43-6 at 1, 4, 99 1, 6.) Additionally, Plaintiffs appeal was accepted at the 18 second level, reviewed by the third level of appeals, and ultimately denied. (Id. at 4, § 6.) 19 || There is no dispute that Plaintiff sought the required three levels of review. 20 ii. Failure to Name Defendants in Prison Appeal. 21 Defendants seek summary judgment on exhaustion grounds in favor of C/O Legue 22 C/O Rodriguez claiming Plaintiff failed to identify both Defendants in □□□□□□□□□□□ 23 || grievance.® (Doc. 43 at 25.) In response, Plaintiff claims he failed to name these 24 ||Defendants because CDCR’s administrative remedies were “unavailable” pursuant to 25 || McBride v. Lopez, 807 F.3d 982 (9th Cir. 2015). (Doc. 62 at 13-14.) 26 27 28 Defendants do not dispute that Plaintiff exhausted his administrative remedies against C/O Camacho and C/O Sheppard. (Doc. 43.) .

1 Defendants submit the declaration of E. Frijas, wherein E. Frijas declares Plaintiff s 2 || October 25, 2017 “appeal did not contain allegations that Defendants . .. C. Legge [and] 3 ||R. Rodriguez fail[ed] to protect Plaintiff from an attack by another inmate in October 2017 4 }|....” (Defs.’ Ex. 4 Decl. of E. Frijas, Doc. 43-6 at 1,9 1, 6.) Plaintiff's October 25, 2017, 5 || CDCR Form 602 appeal provides the following: 6 Set’s all cheered praise to I/m Tillmans [sic] attack on me, some [sic] sang 7 songs, laughed, while others high fived, while mocking certain parts of the incident [and] made comments . . . [r]equesting that all these staff, as well as 8 the 15 building staff [sic], those that do group escorts the days of 10-13, 10— 9 14 have knowledge of the . . . incident and did nothing to stop it -... 10 || (Defs.’ Ex. A, Doc. 43-7 at 5.) Plaintiff claims he did not identify C/O Camacho and C/O 11 || Sheppard for fear of retaliation under Ross and McBride. (Doc. 62 at 16 (citing Ross, 578 12 632; McBride, 807 F.3d at 982)). 13 Under Jones, prisoners must adhere to the administrative review process in 14 || accordance with procedural rules, not defined by PLRA. Woodford v. Ngo, 548 U.S. 81 15 (2006). California regulations require that: 16 [t]he inmate or parolee shall list all staff member(s) involved and shall 7 describe their involvement in the issue . . . [i]f the inmate or parolee does not have the requested identifying information about the staff member(s), he or 18 she shall provide any other available information that would assist the appeals 19 coordinator in making a reasonable attempt to identify the staff member(s) in □ question. 20 oo 21 Code Regs., tit. 15, § 3084.2(a)(3). Courts have granted summary judgment for non- 22 ||exhaustion where plaintiff failed to comply with Title 15 of the California Code of 23 ||Regulations. See Ruiz v. Oliveira, 17¢-v1914-DMS-NLS, 2019 WL 3082164 (S.D. Cal. 24 15, 2019); see also Martinez v. Swift, No. C 13-3973 RS (PR), 2015 WL 1349525, at 25 (N.D. Cal. Mar. 25, 2015) (granting summary judgment for non-exhaustion because the 26 || grievance “does not mention [defendant] or describe with any specificity his actions or 27 || words” and therefore did not comply with Section 3084.2(a)(3)). However, the Ninth 28 Circuit has held that “[a] grievance suffices to exhaust a claim if it puts the prison on

1 ||adequate notice of the problem for which the prisoner seeks redress.” Sapp v. Kimbrell, 2 F.3d 813, 824 (9th Cir. 2010). 3 Here, Plaintiff did not name C/O Legue and C/O Rodriguez in his CDCR Form 602 4 appeal. However, Plaintiff's CDCR Form 602 appeal generally refers to staff who 5 witnessed the attack, including staff who conducted group escorts on October 13th and 6 ||October 14th. (Defs.’ Ex. A CDCR Form 602 Appeal, Doc. 43—7 at 3-11.) □□□□□□□□□□□ 7 ||FAC alleges Defendants C/O Legue and C/O Rodriguez witnessed and responded to the 8 attack, and C/O Rodriguez escorted Plaintiff to the hospital after the incident, therefore, 9 || Plaintiff's appeal as a whole suffices to alert RJD that Plaintiff's prison appeal implicitly 10 ||referred to C/O Legue and:C/O Rodriguez. (Doc. 62 at 9); see Catanzarite v. Pierce, No. 11. || 1:12-CV-01502-LJO, 2015 WL 3774285, at *9 (E.D. Cal. June 16, 2015), report and 12 recommendation adopted, No. 1:12-CV-01502-LJO, 2015 WL 4756094 (E.D. Cal. Aug. 13 || 11, 2015) (finding sufficient exhaustion where a hearing committee was identified by the 14 || group title and date of action without specific names); see also Garcia v. Cate, No. 15 EDCV131610JEWMAN, 2015 WL 5998607, at *7 (C.D. Cal. June 4, 2015), report and 16 ||recommendation adopted, No. EDCV1301610JFWDFM, 2015 WL 5971550 (C.D. Cal. 17 ||Oct. 13, 2015) (finding grievance that failed to name defendant was sufficient where 18 || grievance as a whole was sufficient to alert prison to issue complained about). Moreover, || Plaintiff complied with the administrative review process in accordance with procedural 20 |/rules. Cal. Code Regs., tit. 15, § 3084.2. 21 Therefore, the undersigned RECOMMENDS summary judgment in favor of C/O 22 || Legue and C/O Rodriguez be DENIED on exhaustion grounds. 23 iti. Request for Albino Hearing 24 Defendants request an evidentiary hearing on exhaustion should the Court deny 25 ||summary judgment on exhaustion grounds. (Doc. 70 at 11.) □ 26 In Albino, the Ninth Circuit explained that, if feasible, the trial court should decide 27 exhaustion issue before reaching the merits of a prisoner’s claim. Albino, 747 F.3d at 28 1170. If necessary, the court may resolve disputed facts relevant to exhaustion in the same

1 || way that courts resolve facts for matters of “judicial traffic control”—such as subject matter 2 || jurisdiction, personal jurisdiction, venue, and abstention. Id. (quoting Pavey v. Conley, 3 F.3d 739, 741 (7th Cir. 2008)). Ifa factual finding on a disputed question concerns 4 both exhaustion and the merits, the court’s factual finding on exhaustion does not bind the Lear v. Akanno, No. 115CV01903DADJDP, 2018 WL 4182529, at *2 (E.D. Cal. 6 || Aug. 30, 2018) (denying request for Albino hearing where the analysis turned on issues of 7 || law rather than factual disputes). “If the district judge holds that the prisoner has exhausted 8 || available remedies, . . . the case may proceed to the merits.” Ledesma v. Adame, No. 1:13- 9 cv-01227-A WL-EPG (PC), 2017 WL 4123305, at *4 (E.D. Cal. Sept. 15, 2017) (quoting 10 || Albino, 747 F.3d at 1170). 1] Here, the analysis into whether Plaintiff exhausted his administrative remedies turns 12 | on issues of law as the issue is whether Plaintiffs allegations sufficiently placed RJD on 13 adequate notice of C/O Legue and C/O Rodriguez’s alleged involvement. Therefore, the 14 || undersigned RECOMMENDS Defendants’ request for an Albino hearing be DENIED. 15 |; B. First Amendment Retaliation — First Cause of Action (16 Defendants seek summary judgment in favor of C/O Camacho and C/O Sheppard as 17 ||to Plaintiffs First Amendment retaliation claim arguing Plaintiff did not engage in 18 || protected activity when Plaintiff told CDCR Director Duffy about corruption at RJD. (Doc. 19 at 15-17.) Plaintiff argues his statements to CDCR Director Duffy were on matters of 20 public concern and therefore, protected. (Doc. 62 at 20.) Plaintiff's FAC asserts a ||/retaliation cause of action against Defendants C/O Camacho, C/O Legue, C/O Rodriguez, 22 ||and C/O Sheppard; however, Defendants do not seek summary judgment in favor of C/O 23 ||Legue and C/O Rodriguez.’ (Doc. 8 at 5-7.) Therefore, retaliation claims against C/O 24 || Legue and C/O Rodriguez are not addressed below. . 25 “Prisoners have a First Amendment right to file grievances against prison officials 26 27 ||. 28 7 Defendants only seek summary judgment in favor of C/O Legue and C/O Rodriguez on exhaustion grounds. (Doc. 43 at 25-32.)

1 || and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th 2 || Cir. 2012). 3 Within the prison context, a viable claim of First Amendment retaliation 4 entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected 5 conduct, and that such action (4) chilled the inmate’s exercise of his First 6 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. 7 8 || Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 9 i. Protected Activity 10 Under Entler v. Gregoire, 872 F.3d 1031, there is no distinction between verbal and 11 ||nonverbal threats to file a lawsuit or prison appeal. In Entler, plaintiff's written threat to 12 || file a lawsuit was protected. Jones v. Williams, 791 F.3d 1023 (9th Cir. 2015) (verbal 13 ||complaint of discrimination plus intent to file suit was protected conduct). Moreover, 14 ||courts have found protected activity where an informal complaint was submitted in a 15 |) different form, including verbal complaints to a superior. See Gathrite v. Wilson, No. 3: 19- 16 || cv-01852-JAH-NLS, 2020 WL 4201668 (S.D. Cal. July 22, 2020); see also Ahmed v. 17 || Ringler, No. 2:13-CV-1050 MCE DAD, 2015 WL 502855, at *4 (E.D. Cal. Feb. 5, 2015) 18 (finding inmate’s verbal complaints about improper search of cell and seizure of his 19 property to superior constituted protected conduct); see also Hackworth v. Torres, No. 20 || 1:06-—cv—773 RC, 2011 WL 1811035, at *1 (E.D. Cal. May 12, 2011) (rejecting defendant’s 21 argument that prisoner’s verbal objections to a prison policy during housing classification 22 |}committee meeting with prison staff was not protected by the First Amendment because 23 inmate had not filed a written grievance); see also Leslie v. Claborne, 1:19-cv-00366- 24 || NONE-GSA-PC, 2021 WL 4523720, at *4 (E.D. Cal. Oct. 4, 2021) (finding □□□□□□□□□□□ 25 ||reporting of officer misconduct to a captain was protected); see also Uribe v. McKesson, 26 || No. 08-cv-1285 DMS (NLS), 2011 WL 9640, at *12 (prisoner’s attempt to report a prison 27 || official’s misconduct, either “verbally or in writing, constitutes speech or conduct entitled 28 || to First Amendment protection.”). . . va .

1 Plaintiff alleges he complained to CDCR Director Duffy “about many problems in 2 ||his unit, including corruption, [and] the correctional officers bribing inmates to attack other 3 ||inmates, .. . Ly but did not provide names. (Doc. 62 at 21.) Although Plaintiff did not 4 || file a formal written grievance, some courts have concluded in the context of prisoner civil 5 ||rights actions under Section 1983, “that verbal statements made by an inmate that 6 |lessentially constitute a grievance, or that indicate an intent to file a formal written 7 || grievance are protected by the First Amendment.” Garcia v. Strayhorn, No. 13-CV-807- 8 || BEN (KSC), 2014 WL 4385410, at *6 (S.D. Cal. Sept. 3, 2014) (emphasis added) (citing 9 || Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir. 2006) (declining to hold that “legitimate 10 ||complaints by a prisoner lose their protected status simply because they are spoken.”)). 11 ||Moreover, courts have recognized informal verbal complaints outside of the formal 12 || grievance process as protected activity. Loftis v. Montes, No. 218cv4769JEWGIS, 2020 13 || WL 1290842 (C.D. Cal. Feb. 11, 2020) (finding “no material distinction between 14 || retaliation in the Title VII context and prisoner retaliation,” and Ninth Circuit jurisprudence 15 || has long held that “making an informal complaint to a supervisor is a protected activity 16 || under Title VII anti-retaliation provision.”) (citing Ray v. Henderson, 217 F.3d 1234 (9th 17 || Cir. 2000)) (citing Equal Employment Opportunity Commission v. Hacienda Hotel, 881 18 || F.2d 1504, 1514 (9th Cir. 1989)). Therefore, Plaintiff raises a triable issue of fact as to the 19 | first element of retaliation.

20 || ii. | Adverse Action —

21 “The mere threat of harm can be an adverse action... .” Watison,.668 F.3d at 1114 22 (quoting Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009)). An adverse action taken 23 || against a prisoner “need not be an independent constitutional violation.” Watison, 668 F.3d 24 1114. With respect to his retaliation claim, Plaintiff alleges C/O Camacho and C/O 26 || Sheppard conspired to take adverse action against him for reporting corruption at RJD to 27 |\|CDCR Director Duffy. Specifically, Plaintiff alleges C/O Camacho said, “he would mail 28 || Plaintiff home in a pine box” and gave Inmate Tillman access to Plaintiff’s cell the day ll

1 prior to the attack. (Doc. 62 at 8; Pl.’s Ex. 8, Doc. 62-3 at 34.) Defendants argue C/O 2 ||Camacho and C/O Sheppard were uninvolved and not present for the attack. (Doc. 43 at 3 12.) Because it is disputed whether C/O Camacho and C/O Sheppard took adverse action 4 || against Plaintiff, Plaintiff raises a triable issue of fact as to the second element of retaliation. 5 | iii. | Causation 6 To prevail on a retaliation claim, a plaintiff must show that his protected conduct 7 || was “the ‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.” Soranno ‘Ss 8 || Gasco, Inc. v. Morgan; 874 F.2d 1310, 1314 (9th Cir.1989). To show the presence of this 9 ||element on a motion for summary judgment, Plaintiff need only “put forth evidence of 10 retaliatory motive, that, taken in the light most favorable to him, presents a genuine issue 11 || of material fact as to [Defendants’] intent.” Bruce v. Vist, 351 F.3d 1283, 1289 (9th Cir. 12 2003). . 13 |} Here, Plaintiff alleges he received threats from various staff after he discussed staff 14 || misconduct with CDCR Director Duffy. (Doc. 8 at 5-6, 9 28-29.) In response to ||Defendants’ MSJ , Plaintiff presents evidence that he spoke with CDCR Director Duffy in 16 ||early October 2017 and shortly thereafter began receiving threats from various staff, 17 ||including Defendants. (Doc. 62 at 8.) Plaintiff presents interrogatory responses claiming 18 C/O Sheppard regularly “called Plaintiff a bitch, a rat, and said snitches get stitches.” 19 ||(Doc. 62 at 8; Pl.’s Ex. 8, Doc. 62-3 at 34.) Additionally, Plaintiff also claims C/O 20 ||Camacho said, “he would mail Plaintiff home to his momma ina pine box” and allowed 21 ||Inmate Tillman access to Plaintiff's cell before the attack during which Inmate Tillman 22 ||showed Plaintiff a knife. (Id.) Due to the proximity in time between □□□□□□□□□□□ 23 || communication with CDCR Director Duffy and threats received from Defendants, Plaintiff 24 || presents a genuine issue as to Defendants’ retaliatory motive. Therefore, Plaintiff raises a 25 || triable issue of fact as to the third element of retaliation. 26 iv. Chilled Exercise of First Amendment Rights 27 In Rhodes, the Court held that an objective standard governs the chilling inquiry. 28 || Rhodes, 408 F.3d at 559; see also Brodheim, 584 F.3d at 1262. The question is whether

- 12

1 adverse action would chill or silence a person from engaging in First Amendment 2 |\activities. Orchestrating an attack on an inmate who exercised his First Amendment rights 3 || would silence a person and meet the objective standard. See Watison, 668 F.3d at 1116 4 || (finding an officer’s threat of physical violence was chilling conduct). Therefore, Plaintiff 5 raises a triable issue of fact as to the fourth element of retaliation. 6 oe vz Legitimate Correctional Goal □

7 With respect to the fifth element, a prisoner plaintiff “bears the burden of pleading 8 ||and proving the absence of legitimate correctional goals for the conduct of which he 9 ||complains.” Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). Here, Plaintiff alleges 10 ||“threatening and physically harming someone to stop him from reporting corruption 11 |;advances no correctional goals; it hurts correctional goals.” (Doc. 8 at 6, 4 35.) 12 || Defendants’ MSJ is silent on whether Defendants’ conduct or lack thereof reasonably

_ 13 |\advanced a legitimate correctional goal. Therefore, Plaintiff raises a triable issue of fact as 14 || to the fifth element of retaliation. 15 For the reasons stated above, the undersigned REC OMMENDS summary judgment 16 || in favor of C/O Camacho and C/O Sheppard as to the retaliation claim be DENIED. 17 C. Qualified Immunity as to Retaliation Claim 18 The undersigned now turns to Defendants’ argument that Defendants are entitled to 19 || qualified immunity as existing case law does not support a retaliation claim based on verbal 20 ||complaints made outside of the grievance process. (Doc. 43 at 18.) □ 21 Government officials enjoy qualified immunity from civil damages unless their 22 |)conduct violates clearly established statutory or constitutional rights. Jeffers v. Gomez, 23 ||267 F.3d 895, 910 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 24 |/(1982)). When a court is presented with a qualified immunity defense, the central questions 25 || for the court are: (1) whether the facts alleged, taken in the light most favorable to the 26 || plaintiff, demonstrate that the defendant’s conduct violated a statutory or constitutional 27 right; and (2) whether the right at issue was “clearly established.” Saucier v. Katz, 533 28 ||U.S. 194, 201 (2001). The Supreme Court has held that “while the sequence set forth there : 43

1 ||is often appropriate, it should no longer be regarded as mandatory.” Pearson v. Callahan, 2 U.S. 223, 236 (2009). 3 “A government official’s conduct violate[s] clearly established law when, at the time 4 || of the challenged conduct, ‘[t]he contours of fa] right [are] sufficiently clear’ that every 5 || ‘reasonable official would have understood that what he is doing violates that □□□□□□□ 6 || Ashcroft v. al-Kidd, 563 US. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 7 ||635, 107 (1987)). “[E]xisting precedent must have placed the statutory or constitutional 8 || question beyond debate.” Ashcroft, 563 U.S. at 741; see also Clement v. Gomez, 298 F.3d 9 898, 906 (9th Cir. 2002) (“The proper inquiry focuses on . . . whether the state of the law 10 || [at the relevant time] gave ‘fair warning’ to the officials that their conduct was 11 |) unconstitutional.”) (quoting Saucier, 533 U.S. at 202). The inquiry “must be undertaken 12 light of the specific context of the case, not as a broad general proposition. ...” Saucier, 13 ||533 U.S. at 201. Because qualified immunity is an affirmative defense, the burden of proof 14 || initially lies with the official asserting the defense. Harlow, 457 U.S. at 812. 15 i. Violation of a Constitutional Right (16 Plaintiff alleges that C/O Camacho and C/O Sheppard retaliated against Plaintiff 17 || after he reported misconduct by threatening Plaintiff and orchestrating an attack by Inmate 18 || Tillman. As explained above, viewing these allegations in the light most favorable to 19 || Plaintiff, Defendants’ conduct violated his constitutional right to be free from retaliation 20 || under the First Amendment. See supra pp. 9-13. Therefore, the first question is answered 21 the affirmative. 22 ii. Clearly Established 23 Defendants argue it was not clearly established at the time of the alleged events in 24 2017 that a prisoner’s general verbal complaint to a prison official outside of the formal 25 || grievance process constituted protected conduct under the First Amendment for purposes 26 a retaliation claim. (Doc. 43 at 18.) Defendants cite district court cases Harvey v. 27 || Barbour and Bobadilla v. Knight, to show a lack of consensus of cases finding that general 28 ||.oral complaints can form the basis of a retaliation claim; however, both cases were decided

1 || years after the October 2017 incident, therefore, these cases are inapplicable. Harvey, No. |}2:12-ev-02029 KIM DB, 2021 US. Dist. LEXIS 49350 (E.D. Cal. Mar. 16, 2021); 3 || Bobadilla, No. 2:18-cv-1778 JAM KIN P, 2020 U.S. Dist. LEXIS (E.D. Cal. July 20, 4 2020); Saucier, 533 U.S. at 202 (the proper inquiry is whether the state of the law at the _ 5 |/relevant time gave ‘fair warning’ to the officials that their conduct was unconstitutional). 6 _ A prisoner’s right to be free from retaliation after filing a grievance or threating to 7 is clearly established under Jones, Rhodes, and Watison. See Jones, 791 F.3d at 1023; g Rhodes, 408 F.3d at 559; Watison, 668 F.3d at 1108. Although the above-referenced cases 9 are slightly distinguishable from the instant case as Plaintiff does not allege he threatened 10 sue or file a grievance when he spoke with CDCR Director Duffy, there need not be “a 11 directly on point for a right to be clearly established ....” Foster v. City of Indio, 908 12:||F.3d 1204, 1210 (9th Cir. 2018) (per curiam) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 13 1152 (2018)). The Ninth Circuit in Entler found that plaintiffs informal verbal complaints 14 || were protected under the First Amendment and explained that “/t/he threat of civil 15 || litigation if a prisoner’s complaints are not redressed is implicit in every grievance; 16 |/explicitly articulating that threat as a precursor to initiating civil litigation does not 17 ||suddenly make that threat more intimidating or coercive.” Entler, 872 F.3d at 1042 18 ||(emphasis added). In Shepard v. Quillen, where plaintiff was placed in administrative 19 || segregation after reporting officer misconduct, the Ninth Circuit found defendant was not 20 entitled to qualified immunity because “[a] prisoner’s general right against retaliatory 21 punishment was clearly established.” Shepard, 840 F.3d 686, 688, 693 (9th Cir. 2016). 22° Moreover, a number of courts have concluded that “verbal statements made by an 23 || inmate that essentially constitute a grievance . . . are protected by the First Amendment.” 24 Garcia, 2014 WL 4385410, at *2 (S.D. Cal. Sept. 3, 2014) (emphasis added); see also 25 || Uribe, 2011 WL 9640, at *12 (E.D. Cal. Jan. 3, 2011) (court construed plaintiffs verbal 26 ||effort to report an incident to a sergeant was an attempt to initiate a grievance and thus, 27 entitled to First Amendment protection). Because courts, including the Ninth Circuit, have 28 ||recognized that verbal complaints made outside of the formal grievance process may 14

1 constitute protected activity, supra pp. 9-13, Defendants had a “fair warning” that their 2 |/alleged retaliatory conduct was unconstitutional after Plaintiff reported RJD staff 3 corruption and misconduct to a CDCR official during a prison audit. (Doc. 8 at 3; see also 4 || Saucier, 533 US. at 202.) 5 Therefore, the undersigned RECOMMENDS summary judgment in favor of C/O 6 ||Camacho and C/O Sheppard as to the retaliation claim be DENIED on qualified immunity 7 || grounds. 8 D. Eighth Amendment Failure to Protect — Second Cause of Action® 9 Plaintiff's Eighth Amendment Failure to Protect claim against C/O Sheppard is no 10 ||longer at issue for purposes of Defendants’ MSJ as Defendants acknowledge Plaintiff 11 ||raises issues of disputed facts against C/O Sheppard. (Doc. 70 at 2, fn. 1.) Accordingly, 12 ||Defendants withdraw their arguments for summary judgment in favor of C/O Sheppard. 13 Based on Defendants’ concession, the undersigned RECOMMENDS summary 14 |) judgment in favor of C/O Sheppard as to the failure to protect claim be DENIED. —E. Negligence — Third Cause of Action? 16 In their reply brief, Defendants also concede Plaintiff raises issues of disputed facts 17 | against C/O Sheppard, therefore, the negligence cause of action against C/O Sheppard for 18 || purposes of Defendants’ MSJ is no longer at issue. (/d.) Based on Defendants’ concession, 19 ||the undersigned RECOMMENDS summary judgment in favor of C/O Sheppard as to the 20 |/negligence claim be DENIED. 21

23 ||§ Plaintiff's FAC asserts a failure to protect. cause of action against Defendants C/O 4 Camacho, C/O Legue, C/O Rodriguez, and C/O Sheppard; however, Defendants do not seek summary. judgment in favor of C/O Legue and C/O Rodriguez on this cause of action, 25 C/O Camacho was dismissed from this cause of action on September 1, 2021. (Doc. 26 Pisintifs FAC asserts a negligence cause of action against Defendants C/O Camacho, 27 Legue, C/O Rodriguez, and C/O Sheppard; however, Defendants do not seek summary 9g ||judgment in favor of C/O Legue and C/O Rodriguez, and C/O Camacho was dismissed from this cause of action on September 1, 2021. (Doc. 68.) 16

1 F. Violation of Bane Act — Fourth Cause of Action!? 2 Defendants seek summary judgment in favor of C/O Camacho and C/O Sheppard as 3 Plaintiffs cause of action under the Bane Act for retaliation, wherein they argue Plaintiff 4 cannot prove an underlying constitutional violation for the same reasons that the federal 5 ||First Amendment retaliation cause of action fails. (Doc. 43 at 20.) 6 California Civil Code section 52.1, commonly known as the Bane Civil Rights Act, 7 || provides: □ 8 [a]ny individual whose exercise or enjoyment of rights secured by the 9 Constitution or laws of . the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be . 10 interfered with [by threats, intimidation, or coercion], may institute and 11 prosecute ... a civil action for damages. 12 || Fernandez v. Morris, No. 08-—CV—0601 H(PCL), 2008 U.S. Dist. LEXIS 54298, at *23 13 ||(S.D. Cal. July 16, 2008) (quoting Cal. Civ. Code § 52.1(b)). “The essence of a Bane Act 14 |} claim is that the defendant, by ‘threats, intimidation or coercion,’ tried to or did prevent the 15 || plaintiff from doing something he or she had the right to do under the law, or to force the 16 |) plaintiff to do something that he or she was not required to do under the law.” Shoval v.

_ 17 || San Diego Cnty., No. 09—CV—01348—-H (JMA), 2009 U.S. Dist. LEXIS 77723, at *10(S.D. 18 ||Cal. Aug. 31, 2009) (quoting Jones v. Kmart Corp., 17 Cal.4th 329, 334 (1998)). 19 Plaintiff asserts C/O Camacho and C/O Sheppard interfered with his First 20 || Amendment rights with threats and physical violence. (Doc. 62 at 8; Pl.’s Ex. 8, Doc. 62-— 21 ||3 at ‘Doc. 62 at 9; Pl.’s Ex. 2 Farmer Depo., Doc. 62-3 at 11.) On the other hand, 22 Defendants claim C/O Camacho and C/O Sheppard were not involved with the attack. 23 || (Defs.’ Ex. B Decl. of Sheppard, Doc. 43-9 at 1-2; Defs.’ Ex. B Decl. of Camacho, Doc. 24 ||43-10 at 1-2.) As explained above, supra pp. 9-13, viewing Plaintiff's allegations in the 25 ©. 27 ||!° Plaintiff's FAC asserts a Bane Act cause of action against Defendants. C/O Camacho, 4g || C/O Legue, C/O Rodriguez, and C/O Sheppard; however, Defendants do not seek summary judgment in favor of C/O Legue and C/O Rodriguez. (Doc. 43.) 47 . □

1 || light most favorable to Plaintiff, Plaintiff has raised a genuine issue of material fact as to 2 ||his retaliation claim and therefore, could show an underlying constitutional violation. 3 ||Moreover, it would be inappropriate for the Court to resolve this claim by weighing 4 ||conflicting declarations. See Bryant v. Armstrong, No. 0#8CV02318 W. RBB, 2012 WL 5 || 7680324, at *26 (S.D. Cal. Aug. 3, 2012), report and recommendation adopted, No. 08- 6 || CV-2318 W RBB, 2013 WL 941521 (S.D. Cal. Mar. 11, 2013) (court denied summary 7 ||judgment as to First Amendment retaliation claim and state law claim where contradictory 8 ||statements existed); see also Hunter v. Odom, No. 19-cv-00847-JST, 2019. WL 1560458 9 ||(N.D. Cal. Apr. 9, 2019) (summary judgment as to Bane Act denied where plaintiff stated 10 || cognizable claim for First Amendment retaliation). □ 11 Therefore, the undersigned RECOMMENDS summary judgment in favor of C/O 12 ||Camacho and C/O Sheppard as to the Bane Act cause of action be DENIED. 13 |) , Vv. CONCLUSION 14 For the reasons discussed above, IT IS HEREBY RECOMMENDED that the 15 || District Court issue an Order: (1) ADOPTING this Report and Recommendation and (2) 16 || DENYING Defendants’ motion for summary judgment. (Doc. 43.) 17 IT IS ORDERED that no later than January 27, 2022, any party to this action may 18 || file written objections with the Court and serve a copy on all parties. The document should 19 captioned “Objections to Report and Recommendation.” 20 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 21 || the Court and served on all parties no later than February 10,2022. The parties are advised 22 failure to file objections within the specified time may waive the right to raise those 23 || objections on appeal of the Court’s order. See Martinez v. Yist, 951 F.2d 1153, 1156 (9th 24 1991).

ITISSO ORDERED. . .

26 DATE: January!3, 2022 27 GUE maddie) 28 N. RUTH BERMUDEZ MONTENEGRO _ UNITED STATES MAGISTRATE JUDGE 18