Gathrite v. Wilson

• Court: District Court, S.D. California
• Decided: July 14, 2021
• Docket: 3:19-cv-01852
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEANGELO LAMAR GATHRITE Case No.: 3:19-cv-01852-JAH-NLS

12 Plaintiff, REPORT AND 13 v. RECOMMENDATION FOR ORDER GRANTING IN PART AND 14 HEATHER WILSON, ET AL., DENYING IN PART DEFENDANTS’ 15 Defendants. MOTION TO DISMISS

16 [ECF No. 24] 17

18 DeAngelo Lamar Gathrite (“Plaintiff”), a California prisoner proceeding pro se, 19 filed an amended complaint under 42 U.S.C. § 1983 on October 22, 2020 against officials 20 at the Richard J. Donovan Correctional Facility, Dr. Heather Wilson and Officers J. 21 Salinas and J. Trejo (collectively, “Defendants”). ECF No.18. Plaintiff alleges that 22 Defendants violated his First Amendment, Eighth Amendment, and Fourteenth 23 Amendment rights. Defendants move to dismiss Plaintiff’s First and Fourteenth 24 Amendment claims for failure to state a claim. For the following reasons, this Court 25 RECOMMENDS that Defendants’ motion to dismiss be GRANTED IN PART AND 26 DENIED IN PART. 27 // 28 1 I. BACKGROUND 2 A. Procedural Background 3 Plaintiff filed his original complaint on September 26, 2019. ECF No. 1. Plaintiff 4 was granted in forma pauperis (“IFP”) status. ECF No. 5. On February 12, 2020, 5 Defendants filed their first motion to dismiss. ECF No. 10. This motion to dismiss was 6 granted in part and denied in part, with leave to amend both dismissed claims. ECF No. 7 17. Plaintiff filed an amended complaint on October 22, 2020. ECF No. 18. Defendants 8 filed the instant motion to dismiss on December 21, 2020. Plaintiff filed a response in 9 opposition on January 19, 2021, and Defendants filed a reply on February 12, 2021. 10 B. Factual Allegations 11 Plaintiff’s allegations in his amended complaint are as follows. Prior to the 12 primary incident on March 27, 2019 that will be described below, Plaintiff filed several 13 complaints through 7362 health care services request forms (“7362 forms”) against 14 Defendant Wilson, his clinician at the time, and requested a new clinician. ECF No. 18 at 15 3. In particular, Plaintiff cited “inappropriate staff misconduct and unprofessionalism, 16 and criminal misconduct” in these forms as the basis for his request. Id. 17 Plaintiff alleges that Defendant Wilson retaliated against him on March 27, 2019 18 for filing these complaints, and in collusion with Defendants Trejo and Salinas, placed 19 him in a “Clinician’s Timeout.” Id. Specifically, Plaintiff alleges that Defendant Wilson 20 requested Defendant Salinas to order Defendant Trejo to handcuff Plaintiff behind his 21 back and place him in a shower, which he alleged strongly smelled of urine and feces, 22 until Defendant Wilson authorized his release. Id. Plaintiff stood in the shower for four 23 hours and eighteen minutes. Id. Defendants Wilson, Salinas, and Trejo never came back 24 and ultimately Officer Torres released him. Id. 25 Plaintiff filed a complaint of this incident after he was released. Id. at 10. After 26 reading this complaint, Plaintiff alleges that Defendant Wilson further retaliated against 27 him by removing him from the Enhanced Outpatient Program (EOP). Id. This 28 terminated Plaintiff’s mental healthcare activities at the EOP level. Id. 1 Plaintiff obtained medical care for injuries resulting from the Clinician’s timeout, 2 resulting in x-rays showing “damage and personal injury to Plaintiff’s right shoulder’s 3 rotator cuff and torn tendons.” Id. at 9. Plaintiff is permanently medicated for his 4 shoulder pain. Id. at 10. 5 From these facts Plaintiff alleges several claims: 1) a violation of the Eighth 6 Amendment’s prohibition on Cruel and Unusual Punishment due to his confinement in 7 the shower, 2) a violation of his First Amendment Freedom of Association right due to 8 the deprivation of his ability to associate with other inmates, mental health facilitators, 9 medical staff, and members of his self-help groups within the prison during his 10 confinement, 3) a violation of the Fourteenth Amendment Due Process Clause because he 11 was confined without adequate process, and 4) a violation of the First Amendment 12 prohibition on Retaliation by confining him because of his complaints against Defendant 13 Wilson. Id. 14 II. LEGAL STANDARD 15 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 16 state a claim tests the legal sufficiency of a plaintiff’s claim. Navarro v. Block, 250 F.3d 17 729, 732 (9th Cir. 2001). When considering the motion, the court must accept as true all 18 well-pleaded factual allegations in the complaint. Bell Atlantic Corp. v. Twombly, 556 19 U.S. 544, 555 (2007). The court need not accept as true legal conclusions cast as factual 20 allegations. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[t]hreadbare recitals of the 21 elements of a cause of action, supported by mere conclusory statements” are insufficient). 22 A complaint must “state a claim for relief that is plausible on its face.” Twombly, 23 550 U.S. at 570. To survive a motion to dismiss, a complaint must include non- 24 conclusory factual content. Id. at 555; Iqbal, 556 U.S. at 679. The facts and the 25 reasonable inferences drawn from those facts must show a plausible—not just a 26 possible—claim for relief. Twombly, 550 U.S. at 556; Iqbal, 557 U.S. at 679; Moss v. 27 U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The focus is on the complaint, as 28 opposed to any new facts alleged in, for example, the opposition to a defendant’s motion 1 to dismiss. See Schneider v. California Dep’t of Corrections, 151 F.3d 1194, 1197 n.1 2 (9th Cir. 1998), reversed and remanded on other grounds as stated in 345 F.3d 716 (9th 3 Cir. 2003). “Determining whether a complaint states a plausible claim for relief [is] ... a 4 context-specific task that requires the reviewing court to draw on its judicial experience 5 and common sense.” Iqbal, 557 U.S. at 679. The “mere possibility of misconduct” or 6 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 7 this plausibility standard. Id.; see also Moss, 572 F.3d at 969. 8 In addition, factual allegations asserted by pro se petitioners, “however inartfully 9 pleaded,” are held “to less stringent standards than formal pleadings drafted by lawyers.” 10 Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, where a plaintiff appears pro se in a 11 civil rights case, the court “must construe the pleadings liberally and must afford plaintiff 12 the benefit of any doubt.” See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 13 623 (9th Cir. 1988). 14 III. DISCUSSION 15 Defendants move to dismiss Plaintiff’s claims for freedom of association, due 16 process violation, and retaliation. ECF No. 10. The Court will address each of these 17 claims in turn. 18 A. First Amendment Freedom of Association 19 The Supreme Court has interpreted freedom of association to encompass two types 20 of associational rights: (1) intimate association, i.e., the right to maintain private 21 relationships free of state intrusion, and (2) expressive association, e.g., “the right to 22 associate for the purpose of engaging in those activities protected by the First 23 Amendment—speech, assembly, petition for the redress of grievances, and the exercise 24 of religion.” Hansen v. Nkwocha, No. 1:15-CV-01665 DLB, 2016 WL 2898507, at *2 25 (E.D. Cal. May 17, 2016) (citing Roberts v. United States Jaycees, 468 U.S. 609, 618 26 (1984)). Freedom of association is among the rights least compatible with incarceration. 27 Overton v. Bazzetta, 539 U.S. 126, 131 (2003). Thus, some curtailment of the freedom of 28 association must be expected in the prison context. Id. 1 Here, Plaintiff alleges that his freedom of association was violated when he was 2 placed in the “Clinician’s Timeout” for four hours and eighteen minutes because he was 3 deprived of his ability to intimately associate with mental health group facilitators, 4 medical staff, and self-help groups that provide good time credits off his prison sentence. 5 ECF No. 18 at 3. Plaintiff also claims the right to expressive association with dayroom 6 activities, phone calls, and other “necessities”. ECF No. 18 at 3. 7 As discussed in the previous motion to dismiss, Plaintiff does not retain a right to 8 generally converse with other inmates. See City of Dallas v. Stanglin, 490 U.S. 19, 25 9 (1989) (“[W]e do not think the Constitution recognizes a generalized right of ‘social 10 association’ that includes chance encounters in dance halls.”); see also Hansen, 2016 WL 11 2898507, at *2 (dismissing an inmate’s freedom of association claim based on an officer 12 instructing the plaintiff not to talk to another inmate during an activity). Plaintiff has not 13 cited to any case that suggests a right to associate with self-help groups that consist of 14 other inmates attempting to earn time credits on their sentences. This also applies to 15 prison activities such as dayroom activities and phone calls. Plaintiff has not provided 16 support as to why there is an expressive right to association for these activities. 17 In addition, association is only protected if it is done for the purpose of engaging in 18 a protected activity such as “speech, assembly, petition for the redress of grievances, and 19 the exercise of religion.” Hansen, 2016 WL 2898507, at *2. Plaintiff has not explained 20 how his association with medical staff and other health groups or his dayroom activities 21 and phone calls implicate any of these protected activities. Plaintiff has only provided a 22 conclusory statement that these activities are protected by the First Amendment. As 23 mentioned above, this is insufficient to survive a motion to dismiss. Ashcroft v. Iqbal, 24 556 U.S. 662, 678 (2009) (“[t]hreadbare recitals of the elements of a cause of action, 25 supported by mere conclusory statements” are insufficient). 26 Furthermore, to recognize a general right for Plaintiff to associate with whomever 27 he chooses runs counter to the purpose of prison—confinement. See Overton, 539 U.S. at 28 131 (“An inmate does not retain rights inconsistent with proper incarceration.”). Courts 1 have found that inmates do not have the freedom to associate with a variety of other 2 groups besides the general inmate population. See Dunn v. Castro, 621 F.3d 1196, 1205 3 (9th Cir. 2010) (holding that “the right of a prisoner to receive visits from his children in 4 the factual circumstances of this case was not clearly established”); see also Cortez v. 5 Cate, 499 Fed.Appx. 658, 559-60 (9th Cir. 2012) (holding that an inmate did not have a 6 right to “‘benign association’ with people of his own ethnic group without being 7 subjected to a risk of SHU confinement” after being validated as a gang member); see 8 also Knox v. Biter, 2018 WL 6573225 (E.D. Cal. 2018) (adopting the recommendation in 9 Knox v Biter, 2018 WL 4039971 (E.D. Cal. 2018), holding that Plaintiff did not have a 10 right to contact visitation with minors). 11 Here, Plaintiff has not provided support to find a general right to associate with 12 mental health facilitators and medical staff in the prison setting at his choosing. Plaintiff 13 does have a right to adequate medical care during his imprisonment, but this issue has 14 been pled in Plaintiff’s Eighth Amendment claim and is more appropriate for that claim. 15 Plaintiff has not provided facts to suggest that the right to medical care coincides with the 16 freedom of association. 17 Accordingly, Plaintiff’s freedom of association claim fails because he has not 18 implicated a recognized associational right. El-Shaddai v. Stainer, No. CV 14-9313 19 GHK(JC), 2016 WL 7261230, at *26 (C.D. Cal. Dec. 13, 2016), judgment entered, No. 20 CV 14-9313 GHK(JC), 2016 WL 7327768 (C.D. Cal. Dec. 13, 2016), and aff'd sub nom. 21 Wilkerson v. Stainer, 704 F. App’x 689 (9th Cir. 2017) (holding that Plaintiff did not 22 state a viable claim for violation of his limited constitutional right to association because 23 he failed to demonstrate how his “intimate” or “expressive” associational rights were 24 implicated); Torres v. Snyder, No. 1:08CV00428AWIGSAPC, 2008 WL 4367571, at *2 25 (E.D. Cal. Sept. 23, 2008) (holding that plaintiff’s freedom of association claim failed as 26 a matter of law, where he failed to provide factual support as to how his intimate or 27 expressive associational rights were curtailed). 28 1 It is RECOMMENDED that Plaintiff’s First Amendment Freedom of Association 2 claim be DISMISSED WITH LEAVE TO AMEND. 3 B. Fourteenth Amendment Due Process 4 To state a procedural due process claim, a plaintiff must generally allege 1) a 5 liberty or property interest protected by the Constitution; (2) a deprivation of the interest 6 by the government; and (3) lack of process. Wright v. Riveland, 219 F.3d 905, 913 (9th 7 Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). 8 In order to invoke the protection of the Due Process Clause, an inmate must first 9 establish the existence of a liberty interest and then show that it was denied without due 10 process. Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Liberty interests may arise 11 from two sources, the Constitution itself or from state law. Wilkinson v. Austin, 545 U.S. 12 209, 221 (2005). “[T]he Constitution itself does not give rise to a liberty interest in 13 avoiding transfer to more adverse conditions of confinement.” Id. at 221. This also 14 applies to the context of administrative segregation. Serrano v. Francis, 345 F.3d 1071, 15 1078 (9th Cir. 2003) (“Typically, administrative segregation in and of itself does not 16 implicate a protected liberty interest.”). But State regulations may create a liberty interest 17 in avoiding restrictive conditions of confinement if those conditions impose “atypical and 18 significant hardship on the inmate in relation to the ordinary incidents of prison life.” 19 Sandin, 515 U.S. at 484. Such conditions, however, must represent a dramatic departure 20 from the basic conditions of a plaintiff’s sentence. Id. at 485. 21 Determining whether a prison condition is “atypical and significant” requires 22 consideration of the specific facts of each case. Keenan v. Hall, 83 F.3d 1083, 1089 (9th 23 Cir. 1996). The court considers three guideposts in determining whether conditions pose 24 an atypical and significant hardship: 25 1) whether the challenged condition mirrored those conditions imposed upon inmates in administrative segregation and protective custody, and thus comported 26 with the prison’s discretionary authority; 2) the duration of the condition, and the 27 degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. 28 1 Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (quoting Sandin, 515 U.S. at 486- 2 87). 3 In Plaintiff’s Amended Complaint, he alleges that he is a participant in the 4 Enhanced Outpatient Program (EOP) and the conditions in that program include “access 5 to medical, mental health, and custody staff at all times” and access to “watch TV, attend 6 groups, yard, dayroom activities, phone calls, showers, gym access, self-help groups,” 7 among other activities. ECF No. 18 at 9. In comparison to disciplinary segregation, 8 Plaintiff does note that “it is rare to see patients in restraints/handcuffs – unless that 9 person poses a threat to self, others, staff, or the safety of the institution”, whereas 10 members in disciplinary segregation are “in restraints/handcuffs on all escorts and 11 contained to their cells.” Id. As a result, Plaintiff does provide some comparisons 12 between the two types of prison population as required under Sandin.1 See Jackson v. 13 Carey, 353 F.3d 750, 755 (9th Cir. 2003) (“Sandin requires a factual comparison between 14 conditions in general population or administrative segregation (whichever is applicable) 15 and disciplinary segregation, examining the hardship caused by the prisoner’s challenged 16 action in relation to the basic conditions of life as a prisoner.”). However, it is not 17 necessary to determine whether these facts sufficiently depart from the experience in 18 disciplinary segregation. Even assuming that these conditions meet the first factor, on 19 balance the remaining factors still weigh against the plaintiff. 20 21 22 23 1 Plaintiff does not provide facts to allege the difference between the general population and disciplinary segregation, and instead focuses on the EOP program. It is unclear whether the necessary comparison is 24 between the EOP program and disciplinary segregation or between the general population and 25 disciplinary segregation. The court avoided making that distinction in Jackson. In Jackson, the inmate was in administrative segregation, but provided facts for both types of comparisons and "'cover[ed] his 26 bases’ regardless of which comparison the court makes—general population v. Corcoran–SHU or administrative segregation v. Corcoran–SHU." Jackson, 353 F.3d at 756. If the necessary comparison 27 involves the general population, this factor weighs against Plaintiff since he did not provide any facts to make the appropriate comparison. However, regardless of which comparison is needed, the issue is not 28 1 As discussed in the previous report and recommendation on Defendant’s first 2 motion to dismiss, Plaintiff’s confinement was too short to be considered a “dramatic 3 departure” from the standard conditions of confinement. Compare Mitchell v. Beard, No. 4 1:15-CV-01512-GSA-PC, 2017 WL 3782926, at *6 (E.D. Cal. Aug. 31, 2017) 5 (placement in a cold and unsanitary management cell for an hour and a half did not 6 amount to an atypical or significant hardship) and Meraz v. Reppond, No. C 08-4540 7 MHP (PR), 2009 WL 723841, at *2 (N.D. Cal. Mar. 18, 2009) (placement in a 8 contraband watch cell for 3 days did not constitute an atypical and significant hardship) 9 with Wilkinson, 545 U.S. at 223–25, (2005) (indefinite placement in “supermax” facility, 10 where human contact was severely limited and inmates were not eligible for parole 11 consideration, imposed an atypical and significant hardship) and Reyes v. Horel, No. C 12 08-4561 RMW, 2012 WL 762043, at *5 (N.D. Cal. Mar. 7, 2012) (placement in a secured 13 housing unit for nearly 11 years imposed an atypical and significant hardship). It is clear 14 from Plaintiff’s allegations that this confinement lasted only four hours and eighteen 15 minutes, which falls far below the length of time of other confinement situations that did 16 not impose an atypical and significant hardship. Therefore, the second factor of Sandin 17 weighs against the Plaintiff. Finally, Plaintiff still makes no substantive indication that 18 his placement in administrative segregation impacted the length of his sentence. 19 Therefore, the third factor of Sandin also weighs against the Plaintiff. 20 Taking these factors together, Plaintiff’s temporary confinement, although 21 uncomfortable, did not amount to an atypical or significant hardship under the meaning 22 of Sandin. As mentioned previously, other courts have consistently refused to find 23 atypical and significant hardships even under more onerous circumstances, including this 24 court. See, e.g., Washington v. O’Dell, No. 3:17-CV-1615-MMA-PCL, 2018 WL 25 1942372, at *2, 8 (S.D. Cal. Apr. 25, 2018) (holding that even if Plaintiff’s confinement 26 could be considered administrative segregation, he had failed to plead facts 27 demonstrating atypical and significant hardship where he was placed in a cell which 28 smelled of feces and urine and which was next to a mentally ill inmate who talked to 1 himself, sang aloud, and threatened Plaintiff with harm several times); see also 2 Manzanillo v. Moulton, No. 13-CV-02174-JST (PR), 2014 WL 4793780, at *12 (N.D. 3 Cal. Sept. 25, 2014) (finding that a thirty-five day confinement in a psychiatric services 4 unit where other inmates threw feces and urine at each other, and constantly yelled and 5 banged on the doors was not an atypical and significant hardship). 6 Accordingly, it is RECOMMENDED that Plaintiff’s Due Process claim be 7 DISMISSED WITH LEAVE TO AMEND. 8 C. First Amendment Retaliation2 9 In the prison context, an inmate must establish five basic elements to make a viable 10 First Amendment retaliation claim: (1) an assertion that a state actor took some adverse 11 action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 12 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the 13 action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 14 408 F.3d 559, 567-68 (9th Cir. 2005). 15 Previously, Defendants argued that Plaintiff’s complaints through 7362 forms were 16 not protected conduct. ECF No. 10 at 7. This court determined that it is well established 17 precedent that filing grievances or commencing a lawsuit is considered protected conduct 18 under the First Amendment. ECF No. 14 at 9-10. See Entler v. Gregoire, 872 F.3d 1031, 19 1039 (9th Cir. 2017). Defendants now raise arguments as to the other elements of the 20 retaliation claim.3 Plaintiff asserts two separate adverse actions by Defendants that may 21

22 2 Plaintiff did not create separate section in his complaint for the First Amendment Retaliation claim as 23 he does for the rest of the claims. However, there are facts to suggest that there is a retaliation claim, as was discerned in the previous Complaint, which did not have any separate sections for each claim. As 24 mentioned above, factual allegations asserted by pro se petitioners, “however inartfully pleaded,” are 25 held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, where a plaintiff appears pro se in a civil rights case, the court “must construe 26 the pleadings liberally and must afford plaintiff the benefit of any doubt.” See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). Furthermore, Defendants address arguments to 27 dismiss the retaliation claim, suggesting that they concede the existence of this claim. 3 It is unclear whether Defendants may bring new arguments in a motion to dismiss for a claim that 28 1 constitute retaliatory action. First, Plaintiff alleges that he was placed in a clinician’s 2 time out for four hours and eighteen minutes based on the 7362 Forms he filed against 3 Defendant Wilson. ECF No. 18 at 3. Second, he alleges that he was removed from the 4 Enhanced Outpatient Program (EOP) based on his complaints about the clinician’s 5 timeout. Id. at 10. Defendants now argue that elements 2 and 4 are not met in Rhodes. 6 First, Defendants Wilson, Salinas, and Trejo4 argue that there was no chilling 7 effect on the Plaintiff. ECF No. 24 at 10. In particular, they reference the Plaintiff’s 8 future complaints and this lawsuit. The Ninth Circuit has clearly addressed the “Catch- 9 22” of chilled speech followed by a lawsuit. In Rhodes v. Robinson, the court states the 10 following: 11 “The district court's further holding that Rhodes’s filing this very lawsuit somehow precludes relief on the retaliation claim he therein presents goes 12 even further afield. Indeed, were we to adopt such a theory, prisoner civil 13 rights plaintiffs would be stuck in an even more vicious Catch–22. The only way for an inmate to obtain relief from retaliatory conduct would be to file a 14 federal lawsuit; yet as soon he or she does so, it would become clear that he 15 or she cannot adequately state a claim for relief. Like its fictional counterpart, this catch exudes an ‘elliptical precision about its perfect pairs of parts that 16 [i]s both graceful and shocking.’ Catch–22 at 47. Unlike Colonel Cathcart, 17 however, we are unwilling to indulge a rule that ‘would result in the anomaly of protecting only those individuals who remain out of court.’ 18 19 20 a party that makes a motion under this rule must not make another motion under this rule raising a 21 defense or objection that was available to the party but omitted from its earlier motion.” See In re Apple iPhone Antitrust Litigation, 846 F.3d 313, 317 (9th Cir. 2017). However, this court has previously 22 interpreted this to allow Defendants to raise new arguments in a successive motion to dismiss. See Mir. v. Kirchmeyer, 2014 WL 12029269 at *4 (S.D. Cal. 2014) (“Courts within this Circuit therefore have 23 permitted defendants to bring motions to dismiss in response to an amended pleading based on arguments previously made in a prior motion to dismiss and to raise new arguments that were not 24 previously made”); see also In re Sony Grand WEGA KDF-E A10/A20 Series Rear Projection HDTV 25 Television Litig., 758 F. Supp. 2d 1077, 1098 (S.D. Cal. 2010) (“When Plaintiffs filed the [First Amended Consolidated Complaint], it superseded their previous complaint, and Sony was therefore free 26 to move again for dismissal.”). In order to provide a complete Report and Recommendation, the Defendants’ arguments will be addressed on its merits. 27 4 Defendants Salinas and Trejo sometimes use “Defendants” to refer to themselves without Defendant Wilson, so it is unclear whether Defendant Wilson is meant to be a part of these arguments. The court 28 1 Rhodes, 408 F.3d at 568. Filing a lawsuit does not preclude an inmate from 2 asserting that his speech was chilled because of retaliatory conduct. Furthermore, 3 the standard for chilling speech is not complete silence; rather, the true inquiry is 4 whether “the retaliatory actions would have chilled or silenced a person of ordinary 5 firmness by alleging ‘more than minimal’ harms.” Watison, 668 F.3d at 1115. At 6 the pleading stage, the court has “never required a litigant, per impossible, to 7 demonstrate a total chilling of his First Amendment rights . . . . Speech can be 8 chilled even when not completely silenced.” Rhodes, 408 F.3d at 568. Plaintiff 9 has established “more than minimal harms”, such as his removal from the EOP 10 program and the Clinicians’ Time Out. Therefore, he has sufficiently alleged that 11 his speech was chilled as a result of adverse actions. 12 Second, Defendants now argue that “It is not enough to show that an official acted 13 with a retaliatory motive and that the plaintiff was injured – the motive must cause the 14 injury.” Nieves v. Barlett, 139 S. Ct. 1715, 1722 (2019). Defendants argue that Plaintiff 15 “only makes conclusory statements that provide any link between his protected activity 16 (filing complaints) and Defendants’ adverse actions.” ECF No. 24 at 16. 17 To establish the causal link, Plaintiff must assert facts that show that Defendants 18 had knowledge of his prior speech. See Nieves, 139 S.Ct. at 1727-28 (“[the] allegation 19 about Nieves says nothing about what motivated Weight, who had no knowledge of 20 Bartlett’s prior run-in with Nieves. Cf. Lozman, 585 U.S., at ––––, 138 S.Ct., at 1953– 21 1954 (“plaintiff ‘likely could not have maintained a retaliation claim against the arresting 22 officer’ when there was ‘no showing that the officer had any knowledge of [the 23 plaintiff's] prior speech’)”). However, it is difficult to establish intent and knowledge, so 24 “allegation of a chronology of events from which retaliation can be inferred is sufficient 25 to survive dismissal.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). In 26 Watison, it was enough to show that the adverse actions occurred shortly after the 27 protected speech and were alleged to be retaliatory. Id. at 1115 (“Watison also alleged . . 28 . a connection . . . Rodriguez and Carter took these adverse actions shortly after, and ‘[i]n 1 retaliation’ for, Watison's filing of grievances against Rodriguez”). Therefore, explicit 2 statements are not necessary if the retaliation can be inferred from the “chronology of 3 events.” Id. at 1114. 4 Regarding Defendant Wilson, Plaintiff has pled sufficient facts to establish a 5 causal link in both instances of retaliation. When he was allegedly placed in a 6 “Clinician’s Timeout”, Plaintiff stated that he had filed “numerous complaints” against 7 Defendant Wilson, “citing inappropriate staff misconduct and unprofessionalism and 8 criminal misconduct.” ECF No. 18 at 3. After filing these complaints, Defendant Wilson 9 “requested defendant Sgt. Salinas to order [D]efendant Trejo to handcuff Plaintiff 10 Gathrite behind his back, place him in the shower area until defendant Wilson say[s] ‘let 11 him go.” Id. From this “chronology of events”, retaliation can be inferred as required by 12 Watison. Watison, 668 F.3d at 1114. Plaintiff even stated that Defendant Wilson 13 “retaliated in a cruel and unusual action,” as did the Plaintiff in Watison. ECF No. 18 at 14 3; see 558 F.3d at 1115. Therefore, Plaintiff has sufficiently alleged a causal link 15 between the “Clinician’s Timeout” and a retaliatory motive. Plaintiff also stated that 16 “[a]fter filing a complaint of [the Clinician’s Timeout] and reading Plaintiff[’s] complaint 17 [D]efendant Wilson retaliated again and had Plaintiff kicked out of the Enhanced 18 Outpatient Program.” ECF No. 18 at 10. Plaintiff has alleged a chronology of events: 19 filing a complaint followed by removal from the EOP program. As mentioned in 20 Watison, “allegation of a chronology of events from which retaliation can be inferred is 21 sufficient to survive dismissal.” Watison, 668 F.3d at 1114. Even if Plaintiff had not 22 explicitly mention retaliation, it can be inferred that he was removed from the EOP 23 program because he filed a complaint. Since there is a chronology of events, Plaintiff has 24 sufficiently alleged a causal link between the removal from the EOP program and 25 retaliatory motive. 26 Defendants Salinas and Trejo argue that “there are no allegations that establish that 27 Defendants were ever aware that Plaintiff filed complaints against Defendant Wilson or 28 prison staff.” ECF No. 24 at 10. We agree that this amended complaint does not provide 1 facts to establish knowledge. Therefore, the requirement in Nieves is not met. 2 Defendants also argue that the Plaintiff’s facts establish “[t]hey were instead following a 3 clinician’s request.” ECF No. 24 at 10. As discussed above, it is more important to 4 establish knowledge of the prior speech. It is not necessary to show a specific retaliatory 5 motive so long as the chronology of events suggests retaliation. Watison, 668 F.3d at 6 1114. Because Plaintiff must allege facts to suggest the Defendants Salinas and Trejo 7 had knowledge of the prior speech and must allege a sufficient chronology that infers 8 retaliatory action, Plaintiff’s claim against Defendants Salinas and Trejo is incomplete. 9 Thus, for Plaintiff’s retaliation claims, Plaintiff has alleged sufficient facts to 10 support both claims against Defendant Wilson, but fails to allege a causal link for 11 the retaliation claims against Defendants Salinas and Trejo. Accordingly, it is 12 RECOMMENDED that Plaintiff’s Retaliation claim against Defendants Salinas 13 and Trejo be DISMISSED WITH LEAVE TO AMEND and Defendant Wilson’s 14 motion to dismiss Plaintiff’s Retaliation claim be DENIED. 15 IV. CONCLUSION 16 As outlined herein, the undersigned recommends Defendants’ motion to dismiss be 17 GRANTED as follows: 18 a) Plaintiff’s First Amendment Freedom of Association claim be DISMISSED 19 WITH LEAVE TO AMEND. 20 21 22 23 5 In Plaintiff’s original complaint, he alleges Defendant Trejo said “Gathrite, you’re on a Clinicians’ ‘Time Out’ for all those 7362s you keep writing, so you ain’t got nothing coming until Dr. Wilson gets 24 here. You don’t like it, write her up!” This statement provides a clear allegation of knowledge, and it 25 can be inferred that the adverse actions were taken to retaliate against Plaintiff. Unfortunately, Plaintiff does not provide this statement in the First Amended Complaint, meaning this statement cannot improve 26 the claim’s ability to survive a motion to dismiss. See Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“As a general rule, when a plaintiff files an amended complaint, ‘[t]he amended complaint 27 supercedes the original, the latter being treated thereafter as non-existent’” (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967))). Thus, the Court cannot consider this statement in the instant motion to 28 1 b) Plaintiff's Fourteenth Amendment due process claim be DISMISSED 2 WITH LEAVE TO AMEND. 3 c) Plaintiff's First Amendment Retaliation claim against Defendants Salinas 4 and Trejo be DISMISSED WITH LEAVE TO AMEND. 5 d) Plaintiff’s First Amendment Retaliation claim be PERMITTED to proceed 6 against Defendant Wilson. 7 This report and recommendation is submitted to the United States District Judge 8 || assigned to this case pursuant to 28 U.S.C. § 636(b)(1). 9 IT IS ORDERED that no later than August 4, 2021, any party to this action may 10 || file written objections and serve a copy on all parties. The document should be captioned 11 ||“Objections to Report and Recommendation.” 12 IT IS FURTHER ORDERED that any reply to the objections must be filed and 13 served on all parties no later than August 18, 2021. 14 The parties are advised that failure to file objections within the specified time may 15 || waive the right to raise those objections on appeal of the Court’s order. Martinez v. YIst, 16 F.2d 1153, 1157 (9th Cir. 1991). 17 IT IS SO ORDERED. 18 || Dated: July 14, 2021 19 Mie. Lom 0 Hon. Nita L. Stormes United States Magistrate Judge

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