Herrera v. Ortega

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

11 JOSHUA S. HERRERA, Case No. 20-cv-02035 BLF 12 Plaintiff, ORDER DENYING DEFENDANTS’ 13 v. MOTION FOR SUMMARY JUDGMENT; REFERRING TO 14 SETTLEMENT PROCEEDINGS; J. ORTEGA, et al., STAYING CASE; INSTRUCTIONS 15 TO CLERK Defendants.

16 (Docket No. 37) 17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against prison staff at Salinas Valley State Prison (“SVSP”) and an appeals 20 examiner at the Office of Appeals. The Court found the second amended complaint 21 (“SAC”), Dkt. No. 15, stated a cognizable claim for retaliation, and ordered Defendants Lt. 22 J. Ortega, Officer R. Castillo-Ruiz,1 Officer B. Duran, and Officer R. Cardona to file a 23 motion for summary judgment or other dispositive motion. Dkt. No. 16.2 24

25 1 Plaintiff originally identified this Defendant as “Castillo,” but Defendants’ filings indicate that the proper name is “Castillo-Ruiz.” See, e.g., Dkt. Nos. 18, 19. 26 2 Defendants Sgt. M. Valdez and G. Bickham filed a separate motion for summary 27 judgment to dismiss the claims against them for failure to exhaust administrative remedies. Dkt. No. 29. After the matter was fully briefed, the Court granted summary judgment in 1 Defendants filed a motion for summary judgment pursuant to Rule 56 on the 2 grounds that there is no genuine issue as to any material fact on the retaliation claim 3 against them, they are entitled to judgment as a matter of law, and they are entitled to 4 qualified immunity. Dkt. No. 37. In support, Defendants filed declarations and exhibits.3 5 Id. Plaintiff filed opposition, Dkt. No. 40, along with a declaration and exhibits in support, 6 Dkt. No. 40-1. Defendants filed a reply. Dkt. No. 42. 7 For the reasons stated below, Defendants’ motion for summary judgment is 8 DENIED. 9 10 DISCUSSION 11 I. Statement of Facts4 12 In May 2019, Plaintiff learned of a confidential memorandum placed in his central 13 file. Herrera Dep. 9:13-25, 10:1-13; Dkt. No. 37-4. This confidential memorandum was 14 authored in December 2018, by Defendant Castillo-Ruiz in his capacity as an Assistant 15 Security Threat Group Investigator in the Investigative Service Unit (“ISU”) at SVSP. 16 Castillo-Ruiz Decl. ¶¶ 4-5, Dkt. No. 37-2. Defendant Castillo-Ruiz’s role includes 17 investigating the following: criminal activity within the institution, inmates for 18 introduction and possession of contraband, and inmates’ Security Threat Group (“STG”) 19 status. Id. at ¶ 4. The confidential memorandum identified Plaintiff as an individual 20

21 terminate these two Defendants from the action. Id. at 16.

22 3 In support of their summary judgment motion, Defendants submit the declarations of Defendant Officer Cardona, Dkt. No. 37-1, Defendant Officer Castillo-Ruiz, Dkt. No. 37- 23 2, Defendant Officer Duran, Dkt. No. 37-3, Deputy Attorney General Peter B. Nichols, Dkt. No. 37-4, along with exhibits, and Defendant Lt. Ortega, Dkt. No. 37-5. The exhibits 24 attached to the declaration of Mr. Nichols include excerpts from the transcript of Plaintiff’s deposition taken on April 21, 2022 (Ex. 1), a copy of Plaintiff’s Inmate Appeals Tracking 25 System, level I and II from September 24, 2015 through April 22, 2020 (Ex. 2), and a copy of Plaintiff’s Offender Grievances/Appeals log from June 17, 2020 to September 2021 (Ex. 26 3). Dkt. No. 37-4. 1 selling controlled substances at SVSP, and according to Defendant, was deemed reliable 2 under Cal. Code Regs. tit. § 3321(c)(2-4). Id. at ¶ 5. Plaintiff filed an inmate appeal, 3 designated as SVSP-19-02852, asserting that the information was false and requesting staff 4 remove the confidential memorandum from his file. Id. at ¶ 6. 5 At the time, Defendants Cardona and Duran were assigned as Investigative Service 6 Unit (“ISU”) Squad Officers at SVSP. Cardona Decl. ¶ 4, Dkt. No. 37-1; Duran Decl. ¶ 4, 7 Dkt. No. 37-3. In those roles, Defendants conduct investigations into criminal activity, 8 including possession of contraband and narcotics, within the institution. Id. Defendant 9 Ortega was an ISU Lieutenant, who prepares reports, interview witness or suspects, and 10 supervise ISU Correctional Sergeants who in turn supervise ISU Correctional Officers. 11 Ortega Decl. ¶ 2, Dkt. No. 37-5. In this case, Defendant Ortega was assigned to 12 investigate an inmate grievance at the first level. Id. 13 On June 11, 2019, Defendant Ortega interviewed Plaintiff regarding SVSP-19- 14 02852, in the Facility B Program Office; Defendants Cardona, Castillo-Ruiz, and Duran 15 were also present. Dkt. No. 15 at 3; Ortega Decl. ¶ 3; Cardona Decl. ¶ 5, Dkt. No. 37-1 at 16 2; Castillo-Ruiz ¶¶ 7-8. According to Defendants, it is common practice for more than one 17 staff member to be present during an appeal interview so that officers familiarize 18 themselves with the issues and gain experience. Duran Dec. ¶ 6. During the interview, 19 Plaintiff claimed that the information about him selling narcotics in the confidential 20 memorandum was false, and he requested that the memorandum be removed from his file. 21 Cardona Decl. ¶ 6; Duran Decl. ¶ 7; Ortega Decl. ¶ 5. Defendant Castillo-Ruiz explained 22 to Plaintiff that he was the one who wrote the confidential memorandum and that it met 23 statutory guidelines for reliability. Castillo-Ruiz Decl. ¶ 10. Defendant Ortega explained 24 that the confidential memorandum could not be removed from his file. Ortega Decl. ¶ 7. 25 According to Plaintiff, Defendants attempted to intimidate him into withdrawing the 26 appeal. Dkt. No. 15 at 3-4. He also asserts that Defendant Ortega went so far as to fill out 1 the portion of the appeal to withdraw it and then became agitated when Plaintiff refused. 2 Herrera Decl. ¶ 4, Dkt. No. 40-1 at 2. Defendant Ortega repeatedly asked Plaintiff whether 3 he would withdraw the appeal, and Plaintiff continued to refuse. Id. Defendant Ortega 4 finally responded, “Then we’re going to hit your house,” and then all the Defendants 5 proceeded to the building to search Plaintiff’s cell. Id. Plaintiff states that during the 6 interview and search, he felt “threatened and intimidated by Defendants.” Id. at ¶ 9. In 7 support, Plaintiff submits the declarations of two inmates who attest that they could see 8 Defendants sitting with Plaintiff at the table (presumably during the interview) and that it 9 “looked like they were trying to intimidate him.” Dkt. No. 40-1 at 36, 37. 10 According to Defendants, no one requested Plaintiff withdraw his grievance. 11 Cardona Decl. ¶ 7; Castillo-Ruiz Decl. ¶ 11; Duran Decl. ¶ 9; Ortega Decl. ¶ 8. 12 Defendants also assert that Plaintiff suggested that they search his cell to demonstrate he 13 had no narcotics, stating: “you guys can go search my cell, I don’t have anything to hide.” 14 Ortega Decl. ¶ 9; Castillo-Ruiz Decl. ¶ 12; Duran Decl. ¶ 8; Cardona Decl. ¶ 8. 15 Defendants Ortega, Cardona, Castillo-Ruiz, and Duran conducted the cell search; 16 Defendant Cardona wrote out the cell search receipt. Cardona Decl. ¶ 9; Castillo-Ruiz ¶ 17 13; Duran Decl. ¶ 11. The search was negative for contraband and narcotics and 18 documented as such. Duran Decl. ¶ 11; Ortega ¶ 10. A notebook was confiscated to 19 investigate whether it contained any STG information; it was later returned to Plaintiff. 20 Duran Decl. ¶ 11. 21 In his declaration, Plaintiff denies inviting or suggesting that Defendants search his 22 cell. Herrera Decl. ¶ 3, Dkt. No. 40-1 at 2. He also states that Defendant Castillo told him 23 that he was going to make copies of Plaintiff’s notebook and show it to the “Board and 24 hope they deny me.” Id. at ¶ 10. The declaration of three inmates state that they also 25 overheard Defendant Castillo state that he hoped the Board denies Plaintiff. Dkt. No. 40-1 26 at 36-38. Plaintiff states that C.O. Mariscal, who was in the control booth for 5 Block, told 1 him later that Defendant Castillo-Ruiz had given him a copy of Plaintiff’s notebook. 2 Herrera Decl. ¶ 10. 3 Plaintiff states that out of fear of further retaliation, he did not pursue a 602 appeal 4 on another “false 1030” (another confidential memorandum regarding drugs) in his file. 5 Id. at ¶ 11; Dkt. No. 15 at 5. Plaintiff did pursue a 602 appeal for SVSP-19-02852, 6 challenging the false memorandum to the third level, exhausting administrative remedies. 7 Herrera Dep. 11:3-7, 35:11-16, 35:14-16 (Ex. 1). Plaintiff also filed inmate grievance, 8 CDCR Form 602, Log No. 19-03642, and appealed that grievance to the third level. 9 Herrera Dep. 35:11-13. According to Defendants, Plaintiff’s file indicates he filed 16 10 inmate grievances after SVSP-19-02852 and before September 2021. Id., citing Nichols 11 Decl. ¶ 4, Ex. 2; ¶ 5, Ex. 3. However, it is unclear from their exhibits how Defendants 12 arrived at that number. See Exs. 2, 3. 13 Based on his allegations, the Court found Plaintiff stated a cognizable claim against 14 Defendants Ortega, Castillo-Ruiz, Duran, and Cardona for the retaliatory cell search. Dkt. 15 No. 16 at 3. 16 II. Summary Judgment 17 Summary judgment is proper where the pleadings, discovery and affidavits show 18 that there is “no genuine dispute as to any material fact and the movant is entitled to 19 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 20 “against a party who fails to make a showing sufficient to establish the existence of an 21 element essential to that party’s case, and on which that party will bear the burden of proof 22 at trial . . . since a complete failure of proof concerning an essential element of the 23 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 24 Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 25 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 26 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 1 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 2 Generally, the moving party bears the initial burden of identifying those portions of 3 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 4 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 5 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 6 than for the moving party. But on an issue for which the opposing party will have the 7 burden of proof at trial, the moving party need only point out “that there is an absence of 8 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 9 to the motion is merely colorable, or is not significantly probative, summary judgment may 10 be granted. See Liberty Lobby, 477 U.S. at 249-50. 11 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 12 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 13 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 14 Corp., 477 U.S. at 324 (citations omitted); Fed. R. Civ. P. 56(e). “This burden is not a 15 light one. The non-moving party must show more than the mere existence of a scintilla of 16 evidence.” In re Oracle Corporation Securities Litigation, 627 F.3d 376, 387 (9th Cir. 17 2010) (citing Liberty Lobby, 477 U.S. at 252). “The non-moving party must do more than 18 show there is some ‘metaphysical doubt’ as to the material facts at issue.” Id. (citing 19 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “In 20 fact, the non-moving party must come forth with evidence from which a jury could 21 reasonably render a verdict in the non-moving party’s favor.” Id. (citing Liberty Lobby, 22 477 U.S. at 252). If the nonmoving party fails to make this showing, “the moving party is 23 entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323. 24 The Court’s function on a summary judgment motion is not to make credibility 25 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 26 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 1 The evidence must be viewed in the light most favorable to the nonmoving party, and the 2 inferences to be drawn from the facts must be viewed in a light most favorable to the 3 nonmoving party. See id. at 631. It is not the task of the district court to scour the record 4 in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 5 1996). The nonmoving party has the burden of identifying with reasonable particularity 6 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so, 7 the district court may properly grant summary judgment in favor of the moving party. See 8 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29 9 (9th Cir. 2001). 10 A. Retaliation 11 Retaliation by a state actor for the exercise of a constitutional right is actionable 12 under 42 U.S.C. § 1983, even if the act, when taken for different reasons, would have been 13 proper. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84 14 (1977). Retaliation, though it is not expressly referred to in the Constitution, is actionable 15 because retaliatory actions may tend to chill individuals' exercise of constitutional rights. 16 See Perry v. Sindermann, 408 U.S. 593, 597 (1972). 17 Within the prison context, a viable claim of First Amendment retaliation entails five 18 basic elements: (1) an assertion that a state actor took some adverse action against an 19 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 20 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 21 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 22 Cir. 2005) (footnote omitted). 23 The adverse action in the first element of a retaliation claim need not independently 24 deprive the plaintiff (prisoner or not) of a constitutional right. See, e.g., Mt. Healthy, 429 25 U.S. at 283 (absence of right to continued employment does not defeat claim for retaliatory 26 firing for First Amendment expression); see also Vignolo v. Miller, 120 F.3d 1075, 1078 1 (9th Cir. 1997) (discharge from prison job for refusal to waive constitutional right states 2 retaliation claim despite no constitutional right to prison job); Franco v. Kelly, 854 F.2d 3 584, 585-86 (2d. Cir. 1988) (false disciplinary charges filed against prisoner for 4 cooperating with state investigation states retaliation claim despite no right to be free from 5 false charges). Harm that “would chill a ‘person of ordinary firmness’ from complaining” 6 is sufficient. Shepard v. Quillen, 840 F.3d 686, 691 (9th Cir. 2016) (quoting Rhodes, 408 7 F.3d at 569) (placement in administrative segregation or even threat do so on its own 8 amounts to adverse action satisfying the first element). The mere threat of harm can be a 9 sufficiently adverse action to support a retaliation claim. Id. at 688-89; Brodheim v. Cry, 10 584 F.3d 1262, 1270 (9th Cir. 2009). 11 With regard to the fourth Rhodes element, a prisoner must at least allege that he 12 suffered harm, since harm that is more than minimal will almost always have a chilling 13 effect. Rhodes, 408 F.3d at 567-68 n.11; see Gomez v. Vernon, 255 F.3d 1118, 1127-28 14 (9th Cir. 2001) (prisoner alleged injury by claiming he had to quit his law library job in the 15 face of repeated threats by defendants to transfer him because of his complaints about the 16 administration of the library). The prisoner need not demonstrate a total chilling of his 17 First Amendment rights in order to establish a retaliation claim. See Rhodes, 408 F.3d at 18 568-69 (rejecting argument that inmate did not state a claim for relief because he had been 19 able to file inmate grievances and a lawsuit). That a prisoner’s First Amendment rights 20 were chilled, though not necessarily silenced, is enough. Id. at 569 (destruction of 21 inmate’s property and assaults on the inmate enough to chill inmate’s First Amendment 22 rights and state retaliation claim, even if inmate filed grievances and a lawsuit). 23 With regard to the fifth Rhodes element, the prisoner bears the burden of pleading 24 and proving absence of legitimate correctional goals for the conduct of which he 25 complains. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). At that point, the burden 26 shifts to the prison official to show, by a preponderance of the evidence, that the retaliatory 1 action was narrowly tailored to serve a legitimate penological purpose. See Schroeder v. 2 McDonald, 55 F.3d 454, 461-62 (9th Cir. 1995). Prison officials cannot simply articulate a 3 general justification for their actions, they must show why their particular action was 4 reasonably related to the legitimate interest. Shepard, 840 F.3d at 692 (defendants must 5 show that they placed plaintiff in administrative segregation because there were witnesses 6 in general population whom he could have improperly influenced; not enough to simply 7 assert that administrative segregation generally helps keep prisoners safe and 8 investigations untainted). Courts must also consider whether there were ready alternatives 9 to the retaliatory action for achieving the governmental objectives. Brodfheim, 584 F.3d at 10 1272. 11 Defendants assert that Plaintiff cannot prevail on his retaliation claim because the 12 undisputed facts essentially fail to support two of the Rhodes elements: their actions did 13 not actually chill Plaintiff’s First Amendment rights, and the cell search advanced 14 legitimate correctional goals and was not retaliatory because it was directed at 15 investigating reliable information related to the sale of narcotics. Dkt. No. 5, 6-7. In 16 opposition, Plaintiff asserts that the fact that he filed other appeals is not evidence that the 17 exercise of his rights was not “chilled.” Dkt. No. 40 at 1. He also challenges Defendants’ 18 argument that the cell search advanced a correctional goal as “lack[ing] fundamental merit 19 and factual basis.” Id. at 2. He questions the reliability of the confidential memorandum 20 and asserts that he was never “questioned or tested” about the information therein prior to 21 his filing a grievance on the matter. Id. at 3. Plaintiff also challenges the fact that the 22 confidential memorandum was written six months before the cell search, and that during 23 that time, there was otherwise no search or investigation. Id. at 3. In reply, Defendants 24 assert that the reliability of the confidential memorandum was addressed during the appeal 25 process, and that there was no reason to believe that a cell search six months after 26 receiving the confidential memorandum would be unproductive. Dkt. No. 42 at 3. 1 Accordingly, Defendants assert that the search did advance legitimate correctional goals. 2 Id. 3 After viewing all the evidence submitted in the light most favorable to Plaintiff, the 4 Court finds there exist genuine issues of material facts with respect to Plaintiff’s claim that 5 Defendants conducted a retaliatory cell search in response to his filing an inmate grievance 6 challenging a confidential memorandum in his file. In response to Defendants’ assertion 7 that undisputed facts fail to support his claim, Plaintiff has submitted evidence showing 8 that there are specific facts indicating genuine issues for trial. See Celotex Corp., 477 U.S. 9 at 324. 10 First of all, Defendants attempt to show that Plaintiff’s exercise of his First 11 Amendment rights were not actually chilled because he went ahead and exhausted the 12 challenged grievance through the final level of appeal. However, a total chilling of his 13 First Amendment rights is not required for a Plaintiff to establish a retaliation claim, as 14 Plaintiff points out in opposition. See Rhodes, 408 F.3d at 568-69. It is enough that his 15 First Amendment rights were chilled though not necessarily silenced. Id. at 569. Here, 16 Plaintiff states that he was intimidated enough not to pursue a 602 appeal on another 17 confidential memorandum in his file. See supra at 5. This is sufficient to satisfy the fourth 18 Rhodes element. 19 Defendants also assert that the cell search was not retaliatory because Plaintiff 20 “suggested” that they search his cell and it advanced legitimate correctional goals. See 21 supra at 4. In response to Defendants’ declarations that he invited them to search his cell, 22 Plaintiff has his own declaration denying their assertion. Whether or not Plaintiff invited 23 the search is a material fact on the issue of whether it was retaliatory, and the Court cannot 24 make credibility determinations or weigh this conflicting evidence with respect to this 25 material fact. See T.W. Elec. Serv., Inc., 809 F.2d at 630. Rather, it must be viewed in the 26 light most favorable to Plaintiff as the nonmoving party. Id. at 631. Furthermore, 1 although all four Defendants assert that no one asked Plaintiff to withdraw his appeal, 2 several inmates’ declarations corroborate Plaintiff’s allegation that the Defendants 3 outnumbered him and together intimidated him. See supra at 4-5. Plaintiff’s declaration 4 and the declaration of other inmates is sufficient to designate specific facts showing that 5 there is a genuine issue for trial, i.e., whether Defendants searched Plaintiff’s cell because 6 of the exercise of his First Amendment rights. Celotex Corp., 477 U.S. at 324. Also 7 viewing the evidence in the light most favorable to Plaintiff, it cannot be said that a cell 8 search conducted six months after the confidential memorandum was authored and after 9 Plaintiff complained about it served legitimate correctional goals, as Defendants assert. If 10 the confidential memorandum already established that Plaintiff was dealing narcotics, 11 Defendants fail to explain the need to conduct further investigations. Viewing the facts 12 and the inferences drawn from those facts in the light most favorable to Plaintiff, such a 13 proffered correctional goal appears pretextual rather than legitimate. 14 Based on the foregoing, the Court finds Plaintiff has shown that there remain 15 genuine issues of material fact to preclude summary judgment in favor of Defendants with 16 respect to the retaliation claim against them. See Celotex Corp., 477 U.S. at 324. 17 Accordingly, Defendants are not entitled to judgment as a matter of law. Id. 18 B. Qualified Immunity 19 Defendants asserts in the alternative that they are entitled to qualified immunity 20 which bars liability. Dkt. No. 37 at 7. 21 The defense of qualified immunity protects “government officials . . . from liability 22 for civil damages insofar as their conduct does not violate clearly established statutory or 23 constitutional rights of which a reasonable person would have known.” Harlow v. 24 Fitzgerald, 457 U.S. 800, 818 (1982). The rule of qualified immunity protects “‘all but the 25 plainly incompetent or those who knowingly violate the law;’” defendants can have a 26 reasonable, but mistaken, belief about the facts or about what the law requires in any given 1 situation. Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Malley v. Briggs, 475 U.S. 2 335, 341 (1986)). “Therefore, regardless of whether the constitutional violation occurred, 3 the [official] should prevail if the right asserted by the plaintiff was not ‘clearly 4 established’ or the [official] could have reasonably believed that his particular conduct was 5 lawful.” Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). 6 A right is clearly established if it were “sufficiently clear [at the time of the conduct 7 at issue] that every reasonable official would have understood that what he is doing 8 violates that right.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015). “The right must be 9 settled law, meaning that it must be clearly established by controlling authority or a robust 10 consensus of cases of persuasive authority.” Tuuamalemalo v. Greene, 946 F.3d 471, 477 11 (9th Cir. 2019). If the law did not put the officer on notice that his conduct would be 12 clearly unlawful, summary judgment based on qualified immunity is appropriate. Saucier, 13 533 U.S. at 202. 14 A court considering a claim of qualified immunity must determine whether the 15 plaintiff has alleged the deprivation of an actual constitutional right and whether such right 16 was clearly established such that it would be clear to a reasonable officer that his conduct 17 was unlawful in the situation he confronted. See Pearson v. Callahan, 555 U.S. 223 18 (2009) (overruling the sequence of the two-part test that required determination of a 19 deprivation first and then whether such right was clearly established, as required by 20 Saucier, 533 U.S. at 194); Henry A., 678 F.3d at 1000 (qualified immunity analysis 21 requiring (1) determining the contours of the clearly established right at the time of the 22 challenged conduct and (2) examining whether a reasonable official would have 23 understood that the challenged conduct violated such right). The court may exercise its 24 discretion in deciding which prong to address first, in light of the particular circumstances 25 of each case. See Pearson, 555 U.S. at 236 (noting that while the Saucier sequence is 26 often appropriate and beneficial, it is no longer mandatory). “[U]nder either prong, courts 1 may not resolve genuine disputes of fact in favor of the party seeking summary judgment,” 2 and must, as in other cases, view the evidence in the light most favorable to the non- 3 movant. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). 4 The plaintiff bears the burden of proving the existence of a “clearly established” 5 right at the time of the allegedly impermissible conduct. Maraziti v. First Interstate Bank, 6 953 F.2d 520, 523 (9th Cir. 1992). The defendant bears the burden of establishing that his 7 actions were reasonable, even if he violated the plaintiff’s constitutional rights. White v. 8 Pauly, 137 S. Ct. 548, 552 (2017). 9 In considering whether a defendant is entitled to qualified immunity against a 10 retaliation claim, it is improper to consider the harm eventually caused by the official’s 11 conduct. Rhodes, 408 F.3d at 569-70. The qualified immunity inquiry must focus on the 12 time of the conduct – i.e., whether the officer’s acts were reasonable in light of the 13 information he possessed at the time he acted – rather than its aftermath and effect because 14 no officer can observe whether his retaliation has successfully chilled a prisoner’s rights 15 until long after deciding to act. Id. at 570. 16 Defendants assert that Plaintiff “cannot identify any controlling precedent sufficient 17 to put them on notice that conducting a cell search, following an interview into an inmate’s 18 grievance on the validity of information about narcotic sales, constitutes retaliation for 19 First Amendment-protected expression.” Dkt. No. 37 at 8. Defendants also assert Plaintiff 20 cannot identify “any controlling precedent, sufficient to put every correctional officer or 21 ISU officer on notice, that a cell search would chill the exercise of First Amendment rights 22 by a prisoner of ordinary firmness.” Id. 23 In opposition, Plaintiff asserts that Defendants’ argument is not compelling, as they 24 would have the Court believe that “Defendants were unaware that retaliation, threats, and 25 intimidation are illegal, a violation of policy, and a violation of Plaintiff’s rights.” Dkt. 26 No. 40 at 3-4. Plaintiff asserts that retaliation for exercising his constitutional rights is 1 “undeniably well known and clearly established to be unlawful.” Id. at 4. 2 Viewing the evidence in the light most favorable to Plaintiff, the Court finds 3 Defendants are not entitled to qualified immunity. First of all, Defendants are simply 4 incorrect in arguing that there is no controlling precedent putting them on notice about 5 their specific conduct. It is not necessary that a prior decision rule “the very action in 6 question” unlawful for a right to be clearly established. Anderson v. Creighton, 483 U.S. 7 635, 640 (1987); Hamby v. Hammond, 821 F.3d 1085, 1095 (9th Cir. 2016) (plaintiff need 8 not find a case with identical facts, but the farther away existing precedent lies the more 9 likely that the official’s acts fall within that vast zone of conduct that is constitutional). 10 Instead, existing precedent must have placed the constitutional question beyond debate. 11 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); Ohlson v. Brady, 9 F.4th 1156, 1166-67 12 (9th Cir. 2021) (no directly on point case is required, but the constitutional question must 13 be beyond debate.) Here, Plaintiff’s right to freely exercise his First Amendment rights 14 without retaliation under Rhodes, 408 F.3d at 567-68, is clearly established such that it was 15 sufficiently clear at the time of cell search that every reasonable official would have 16 understood that what he is doing violates that right. Taylor, 135 S. Ct. at 2044. 17 Secondly, Defendants have failed to establish that their conduct was reasonable. 18 Viewing the evidence in the light most favorable to Plaintiff, Defendants are alleged to 19 have conducted a retaliatory cell search in response to Plaintiff’s refusal to withdraw an 20 inmate grievance. At the time of this alleged conduct, it was sufficiently clear that every 21 reasonable official would have understood that he may not take adverse action against an 22 inmate for exercising his First Amendment rights, including filing inmate grievances. 23 Rhodes, 408 F.3d at 567-68. Therefore, it cannot be said that a reasonable officer in 24 Defendants’ position would have understood that it was lawful to attempt to intimidate 25 Plaintiff into withdraw his grievance and then search his cell in retaliation when he refused 26 to do so. In other words, in light of clearly established principles at the time of the 1 incident, it cannot be said that Defendants could have reasonably believed that their 2 conduct was lawful. See Rhodes, 408 F.3d at 569-70. Accordingly, Defendants’ motion 3 based on qualified immunity is DENIED. 4 III. Referring Case to Settlement Proceedings 5 The Court has established a Pro Se Prisoner Settlement Program under which 6 certain prisoner civil rights cases may be referred to a neutral Magistrate Judge for 7 settlement. In light of the existence of triable issues of fact as to whether Defendants 8 violated Plaintiff’s rights, the Court finds the instant matter suitable for settlement 9 proceedings. Accordingly, the instant action will be referred to a neutral Magistrate Judge 10 for mediation under the Pro Se Prisoner Settlement Program. 11 12 CONCLUSION 13 For the reasons stated above, the Court orders as follows: 14 1. Defendants D Lt. J. Ortega, Officer R. Castillo-Ruiz, Officer B. Duran, and 15 Officer R. Cardona’s motion for summary judgment is DENIED. Dkt. No. 37. 16 2. The instant case is REFERRED to Judge Robert M. Illman pursuant to the 17 Pro Se Prisoner Settlement Program for settlement proceedings on the claims in this action, 18 as described above. The proceedings shall take place within ninety (90) days of the filing 19 date of this order. Judge Illman shall coordinate a time and date for a settlement 20 conference with all interested parties or their representatives and, within ten (10) days after 21 the conclusion of the settlement proceedings, file with the court a report regarding the 22 prisoner settlement proceedings. 23 3. Other than the settlement proceedings ordered herein, and any matters 24 Magistrate Judge Illman deems necessary to conduct such proceedings, this action is 25 hereby STAYED until further order by the court following the resolution of the settlement 26 proceedings. 1 4, The Clerk shall send a copy of this order to Magistrate Judge [Iman in 2 || Eureka, California. 3 This order terminates Docket No. 37. 4 IT IS SO ORDERED. 5 || Dated: ___November 14, 2023 foun 6 BETH LABSON FREEMAN United States District Judge 7 8 9 10 1] 3 12 15 16

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