1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYRELL AINSWORTH, No. 2:24-cv-01347-DAD-CSK (PC) 12 Plaintiff, ORDER DECLINING TO ADOPT THE JUNE 14, 2024 FINDINGS AND 13 v. RECOMMENDATIONS, ADOPTING THE JULY 1, 2024 AND JULY 10, 2024 14 FINDINGS AND RECOMMENDATIONS, R. HUNTER, AND DENYING PLAINTIFF’S MOTIONS 15 FOR PRELIMINARY INJUNCTIONS Defendant. 16 (Doc. Nos. 12, 14, 15, 17, 18, 22) 17 18 19 Plaintiff Tyrell Ainsworth is a state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United 21 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 A. The Findings and Recommendations Issued on June 14, 2024 23 On June 14, 2024, the assigned magistrate judge issued findings and recommendations 24 recommending that this action be dismissed with prejudice upon screening because of plaintiff’s 25 failure to state a cognizable claim for retaliation in violation of the First Amendment. (Doc. 26 No. 12.) Specifically, the pending findings and recommendations concluded that “plaintiff’s 27 statement was not protected speech because it was confrontational and disrespectful.” (Id. at 4.) 28 ///// 1 Those findings and recommendations were served on the parties and contained notice that 2 any objections thereto were to be filed within fourteen (14) days after service. (Id. at 4–5.) 3 Plaintiff filed objections on July 1, 2024, but those objections did not meaningfully address the 4 findings and recommendations. (Doc. No. 16.) 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, the 6 court has conducted a de novo review of the case. Having carefully reviewed the entire file, 7 including plaintiff’s objections, the undersigned declines to adopt the findings and 8 recommendations issued on June 14, 2024. 9 Plaintiff alleges the following in his first amended complaint (FAC). It is widely known 10 among plaintiff’s fellow prisoners that defendant R. Hunter, a physical therapist, is racist and that 11 she often “writ[es] up” Black inmates for “indecent exposure.” (Doc. No. 11 at 2–3.) On July 13, 12 2022, defendant Hunter asked plaintiff what was in his hands. (Id. at 2.) Plaintiff showed 13 defendant that he was holding a bowl. (Id.) Plaintiff alleges that in making this inquiry defendant 14 had assumed, and was implying, that plaintiff had been masturbating. (Id.) The following day, 15 plaintiff overheard defendant Hunter speaking rudely to a Black inmate. (Id. at 3.) At that time, 16 plaintiff was reminded of defendant’s question posed to him on the previous day, prompting 17 plaintiff to say to another prisoner that plaintiff “should write [defendant] up for voyeurism.”1 18 (Id.) Defendant Hunter was in earshot of plaintiff when he made this statement. (Id.) Defendant 19 1 The undersigned notes that plaintiff is proceeding pro se and, somewhat confusingly, refers to 20 himself in the third person throughout his FAC. As a result, it appears that the magistrate judge may have interpreted plaintiff’s statement “he should write her up for voyeurism” (emphasis 21 added), as plaintiff meaning that another inmate should write up defendant Hunter. In the undersigned view, however, a more accurate reading of the complaint is that plaintiff is alleging 22 that what he spoke out loud was “I should write her up,” and that plaintiff is merely phrasing his 23 allegations in the third person throughout his FAC. In this regard, the undersigned notes that plaintiff also alleges that his statement was made “based off the incident on 7/13/24,” i.e., the 24 incident where defendant Hunter asked plaintiff what was in his hands. This allegation certainly implies that plaintiff meant he, plaintiff, should write up defendant Hunter, not that another 25 prisoner should do so. Moreover, in his original complaint, plaintiff alleged “I stated to [another inmate] I should write her up for voyeurism.” (See Doc. No. 1 at 3.) While telling another 26 inmate that they should file an inmate grievance against an officer in an officer’s presence might 27 arguably be construed as inciting disorderliness or being disrespectful, stating that you yourself should file such an inmate grievance against an officer is protected conduct under the authorities 28 cited in this order. 1 then wrote two false rules violation reports against plaintiff in retaliation for plaintiff’s comment. 2 (Id.) Plaintiff appears to allege that he was placed into administrative segregation as a result of 3 defendant’s false rules violation reports, though plaintiff’s allegations are somewhat unclear in 4 this regard. (See id. at 5.) Finally, plaintiff alleges that he was later found not guilty of both the 5 rules violation reports filed by defendant Hunter against him. (Id. at 4.) Plaintiff provides as an 6 attachment to his FAC a purported copy of “Disciplinary Hearing Results” with an entry 7 reflecting that “[t]he Senior Hearing Officer does not find enough supporting evidence to find 8 [plaintiff] guilty.” (Id. at 31–36.) 9 Within the prison context, a claim of First Amendment retaliation requires a prisoner to 10 allege five elements: (1) the prisoner engaged in protected conduct; (2) the defendant took 11 adverse action against the prisoner; (3) a causal connection exists between the adverse action and 12 the protected conduct; (4) the defendant’s acts chilled the prisoner’s exercise of their First 13 Amendment rights; and (5) the retaliatory action did not reasonably advance a legitimate 14 correctional goal. Watison v. Carter, 668 F.3d 1108, 1114–15 (9th Cir. 2012). 15 The pending findings and recommendations issued on June 14, 2024 concluded with 16 respect to the first element that “plaintiff’s statement was not protected speech because it was 17 confrontational and disrespectful.” (Doc. No. 12 at 4) (citing Jackson v. Austin, No. 2:14-cv- 18 00592-KJM-KJN, 2014 WL 4656201, at *3 (E.D. Cal. Sept. 16, 2014)); see also Jackson, 2014 19 WL 4656201, at *3 (“[A] number of district courts have found that verbal challenges to prison 20 officials that are argumentative, confrontational, and disrespectful are not protected by the First 21 Amendment.”). 22 The undersigned concludes that plaintiff has plausibly alleged that he engaged in 23 protected conduct by stating that he “should write [defendant Hunter] up for voyeurism.” (See 24 Doc. No. 11 at 3.) “A majority of district courts in California have held that an inmate’s threat to 25 file a prison grievance is entitled to First Amendment protection.” Loftis v. Montes, No. 2:18-cv- 26 04769-JFW-GJS, 2019 WL 3806388, at *4 (C.D. Cal. June 25, 2019), report and 27 recommendation adopted, 2019 WL 3802187 (E.D. Cal. Aug. 13, 2019); see, e.g., Hackworth v. 28 Arevalos, No. 1:19-cv-01362-ADA-CDB, 2022 WL 18027835, at *7 (E.D. Cal. Dec. 30, 2022) 1 (“Threatening to file an inmate grievance is also protected activity.”), report and recommendation 2 adopted, 2023 WL 2751532 (E.D. Cal. March 31, 2023). Here, plaintiff told another inmate that 3 he was considering “writ[ing] up” defendant Hunter for “voyeurism” in light of defendant’s 4 alleged propensity to “writ[e] up” Black prisoners for “indecent exposure,” and particularly after 5 defendant Hunter’s questioning of plaintiff the day before. (See Doc. No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYRELL AINSWORTH, No. 2:24-cv-01347-DAD-CSK (PC) 12 Plaintiff, ORDER DECLINING TO ADOPT THE JUNE 14, 2024 FINDINGS AND 13 v. RECOMMENDATIONS, ADOPTING THE JULY 1, 2024 AND JULY 10, 2024 14 FINDINGS AND RECOMMENDATIONS, R. HUNTER, AND DENYING PLAINTIFF’S MOTIONS 15 FOR PRELIMINARY INJUNCTIONS Defendant. 16 (Doc. Nos. 12, 14, 15, 17, 18, 22) 17 18 19 Plaintiff Tyrell Ainsworth is a state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United 21 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 A. The Findings and Recommendations Issued on June 14, 2024 23 On June 14, 2024, the assigned magistrate judge issued findings and recommendations 24 recommending that this action be dismissed with prejudice upon screening because of plaintiff’s 25 failure to state a cognizable claim for retaliation in violation of the First Amendment. (Doc. 26 No. 12.) Specifically, the pending findings and recommendations concluded that “plaintiff’s 27 statement was not protected speech because it was confrontational and disrespectful.” (Id. at 4.) 28 ///// 1 Those findings and recommendations were served on the parties and contained notice that 2 any objections thereto were to be filed within fourteen (14) days after service. (Id. at 4–5.) 3 Plaintiff filed objections on July 1, 2024, but those objections did not meaningfully address the 4 findings and recommendations. (Doc. No. 16.) 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, the 6 court has conducted a de novo review of the case. Having carefully reviewed the entire file, 7 including plaintiff’s objections, the undersigned declines to adopt the findings and 8 recommendations issued on June 14, 2024. 9 Plaintiff alleges the following in his first amended complaint (FAC). It is widely known 10 among plaintiff’s fellow prisoners that defendant R. Hunter, a physical therapist, is racist and that 11 she often “writ[es] up” Black inmates for “indecent exposure.” (Doc. No. 11 at 2–3.) On July 13, 12 2022, defendant Hunter asked plaintiff what was in his hands. (Id. at 2.) Plaintiff showed 13 defendant that he was holding a bowl. (Id.) Plaintiff alleges that in making this inquiry defendant 14 had assumed, and was implying, that plaintiff had been masturbating. (Id.) The following day, 15 plaintiff overheard defendant Hunter speaking rudely to a Black inmate. (Id. at 3.) At that time, 16 plaintiff was reminded of defendant’s question posed to him on the previous day, prompting 17 plaintiff to say to another prisoner that plaintiff “should write [defendant] up for voyeurism.”1 18 (Id.) Defendant Hunter was in earshot of plaintiff when he made this statement. (Id.) Defendant 19 1 The undersigned notes that plaintiff is proceeding pro se and, somewhat confusingly, refers to 20 himself in the third person throughout his FAC. As a result, it appears that the magistrate judge may have interpreted plaintiff’s statement “he should write her up for voyeurism” (emphasis 21 added), as plaintiff meaning that another inmate should write up defendant Hunter. In the undersigned view, however, a more accurate reading of the complaint is that plaintiff is alleging 22 that what he spoke out loud was “I should write her up,” and that plaintiff is merely phrasing his 23 allegations in the third person throughout his FAC. In this regard, the undersigned notes that plaintiff also alleges that his statement was made “based off the incident on 7/13/24,” i.e., the 24 incident where defendant Hunter asked plaintiff what was in his hands. This allegation certainly implies that plaintiff meant he, plaintiff, should write up defendant Hunter, not that another 25 prisoner should do so. Moreover, in his original complaint, plaintiff alleged “I stated to [another inmate] I should write her up for voyeurism.” (See Doc. No. 1 at 3.) While telling another 26 inmate that they should file an inmate grievance against an officer in an officer’s presence might 27 arguably be construed as inciting disorderliness or being disrespectful, stating that you yourself should file such an inmate grievance against an officer is protected conduct under the authorities 28 cited in this order. 1 then wrote two false rules violation reports against plaintiff in retaliation for plaintiff’s comment. 2 (Id.) Plaintiff appears to allege that he was placed into administrative segregation as a result of 3 defendant’s false rules violation reports, though plaintiff’s allegations are somewhat unclear in 4 this regard. (See id. at 5.) Finally, plaintiff alleges that he was later found not guilty of both the 5 rules violation reports filed by defendant Hunter against him. (Id. at 4.) Plaintiff provides as an 6 attachment to his FAC a purported copy of “Disciplinary Hearing Results” with an entry 7 reflecting that “[t]he Senior Hearing Officer does not find enough supporting evidence to find 8 [plaintiff] guilty.” (Id. at 31–36.) 9 Within the prison context, a claim of First Amendment retaliation requires a prisoner to 10 allege five elements: (1) the prisoner engaged in protected conduct; (2) the defendant took 11 adverse action against the prisoner; (3) a causal connection exists between the adverse action and 12 the protected conduct; (4) the defendant’s acts chilled the prisoner’s exercise of their First 13 Amendment rights; and (5) the retaliatory action did not reasonably advance a legitimate 14 correctional goal. Watison v. Carter, 668 F.3d 1108, 1114–15 (9th Cir. 2012). 15 The pending findings and recommendations issued on June 14, 2024 concluded with 16 respect to the first element that “plaintiff’s statement was not protected speech because it was 17 confrontational and disrespectful.” (Doc. No. 12 at 4) (citing Jackson v. Austin, No. 2:14-cv- 18 00592-KJM-KJN, 2014 WL 4656201, at *3 (E.D. Cal. Sept. 16, 2014)); see also Jackson, 2014 19 WL 4656201, at *3 (“[A] number of district courts have found that verbal challenges to prison 20 officials that are argumentative, confrontational, and disrespectful are not protected by the First 21 Amendment.”). 22 The undersigned concludes that plaintiff has plausibly alleged that he engaged in 23 protected conduct by stating that he “should write [defendant Hunter] up for voyeurism.” (See 24 Doc. No. 11 at 3.) “A majority of district courts in California have held that an inmate’s threat to 25 file a prison grievance is entitled to First Amendment protection.” Loftis v. Montes, No. 2:18-cv- 26 04769-JFW-GJS, 2019 WL 3806388, at *4 (C.D. Cal. June 25, 2019), report and 27 recommendation adopted, 2019 WL 3802187 (E.D. Cal. Aug. 13, 2019); see, e.g., Hackworth v. 28 Arevalos, No. 1:19-cv-01362-ADA-CDB, 2022 WL 18027835, at *7 (E.D. Cal. Dec. 30, 2022) 1 (“Threatening to file an inmate grievance is also protected activity.”), report and recommendation 2 adopted, 2023 WL 2751532 (E.D. Cal. March 31, 2023). Here, plaintiff told another inmate that 3 he was considering “writ[ing] up” defendant Hunter for “voyeurism” in light of defendant’s 4 alleged propensity to “writ[e] up” Black prisoners for “indecent exposure,” and particularly after 5 defendant Hunter’s questioning of plaintiff the day before. (See Doc. No. 11 at 2–3.) 6 The court finds that plaintiff’s allegations are closer to those cases in which district courts 7 have found statements made by prisoners to constitute protected speech rather than those in which 8 statements by prisoners have been found to be confrontational, unprotected speech. See, e.g., 9 Loftis, 2019 WL 3806388, at *3–4 (finding no protected conduct where the plaintiff 10 “(1) challenged Montes’ attitude and tone, (2) told Montes to relax, and (3) demanded that 11 Montes stop speaking to [the plaintiff] disrespectfully” but finding protected conduct in a later 12 incident where the plaintiff allegedly “told Montes that he intended to report his conduct via a 13 formal complaint”); Hackworth, 2022 WL 18027835, at *7 (“In Johnson,[2] the district court 14 found that the plaintiff’s statements, which were argumentative, confrontational, disrespectful, 15 and ‘laced with expletives,’ were not protected speech. The Johnson court cited other cases that 16 distinguished between, on the one hand, ‘an attempt to assert a prison grievance’—for which [the 17 plaintiff’s] comment to [the defendant] that he would ‘602 your fat ass’ arguably is akin—to 18 prisoner statements that were mere insults, put-downs, and otherwise disconnected from merit- 19 based grievances.”) (internal citations omitted); cf. Cass v. Yousefpour, No. 1:20-cv-01481-JLT- 20 BAK-SKO (PC), 2022 WL 21825820, at *2 (E.D. Cal. Jan. 14, 2022) (“Plaintiff argues that these 21 cases state that verbal ‘attempt[s] to redress a grievance verbally [sic] is protected conduct under 22 a First Amendment retaliation claim.’ . . . In each of those cases, the plaintiff filed a grievance 23 and/or made threats to sue, file a grievance, or file criminal charges, which the courts considered 24 to be protected speech under the First Amendment. In this case, Plaintiff did not take any of these 25 actions.”). 26 ///// 27 2 Johnson v. Carroll, No. 2:08-cv-02494-JAM-KJN, 2012 WL 2069561 (E.D. Cal. June 7, 2012), 28 report and recommendation adopted, 2012 WL 3756483 (E.D. Cal. Aug. 28, 2012). 1 As to the remaining four elements of his retaliation claim, plaintiff’s allegations that 2 defendant filed multiple false rules violation reports against him, of which he was later found not 3 guilty, and pursuant to which he was either threatened with or subjected to administrative 4 segregation, suffice to state a claim for retaliation under the First Amendment. See Watison, 668 5 F.3d at 1115 (reversing the district court and concluding that the plaintiff had alleged facts 6 sufficient to state a First Amendment retaliation claim where the plaintiff alleged that he filed 7 grievances against the defendant, the defendant “filed a false disciplinary charge against him,” the 8 false charge was filed shortly after and in retaliation for the filing of grievances, and the plaintiff 9 was placed in administrative segregation). The undersigned concludes that dismissal of plaintiff’s 10 First Amendment retaliation claim at screening is not warranted here. See, e.g., Lipsey v. Goree, 11 No. 1:17-cv-00997-DAD-JLT, 2018 WL 4638309, at *2–4 (E.D. Cal. Sept. 26, 2018) (concluding 12 that the plaintiff had alleged sufficient facts to state a First Amendment retaliation claim at the 13 screening stage where the plaintiff had alleged, among other things, “a chronology of events from 14 which retaliation can be inferred”). 15 B. The Findings and Recommendations Issued on July 1, 2024 16 On July 1, 2024, the magistrate judge issued findings and recommendations 17 recommending that plaintiff’s first motion for injunctive relief be denied. (Doc. No. 15.) 18 Specifically, the magistrate judge concluded that plaintiff “seeks injunctive relief against CDCR 19 Director Macomber and prison officials at Kern Valley State Prison, who are not defendants in 20 this action,” and that “the claims raised and relief sought in the pending motion are unrelated to 21 the claims raised in the amended complaint against defendant Hunter.” (Id. at 2–3.) 22 Those findings and recommendations were served on the parties and contained notice that 23 any objections thereto were to be filed within fourteen (14) days after service. (Id. at 4.) Plaintiff 24 has not filed any objections to the findings and recommendations issued on July 1, 2024. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, the 26 court has conducted a de novo review of the case. Having carefully reviewed the entire file, the 27 ///// 28 ///// 1 court concludes that the findings and recommendations issued on July 1, 2024 are supported by 2 the record and by proper analysis.3 3 C. The Findings and Recommendations Issued on July 10, 2024 4 On July 10, 2024, the magistrate judge issued findings and recommendations 5 recommending that plaintiff’s second motion for injunctive relief be denied. (Doc. No. 18.) 6 Specifically, the magistrate judge concluded that plaintiff “seeks an order against the California 7 Department of Corrections and Rehabilitation (‘CDCR’) Director, who is not a defendant in this 8 action,” and that “the claims raised and relief sought in the pending motion are unrelated to the 9 claims raised in the amended complaint against defendant Hunter.” (Id. at 3–4.) 10 Those findings and recommendations were served on the parties and contained notice that 11 any objections thereto were to be filed within fourteen (14) days after service. (Id. at 5.) Plaintiff 12 has not filed any objections to the findings and recommendations issued on July 10, 2024. 13 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, the 14 court has conducted a de novo review of the case. Having carefully reviewed the entire file, the 15 court concludes that the findings and recommendations issued on July 10, 2024 are supported by 16 the record and by proper analysis. 17 CONCLUSION 18 Accordingly: 19 1. The court declines to adopt the findings and recommendations issued on June 14, 20 2024 (Doc. No. 12); 21 2. The undersigned finds that plaintiff’s first amended complaint states a cognizable 22 claim for retaliation in violation of the First Amendment ; 23 3. The findings and recommendations issued on July 1, 2024 (Doc. No. 15) are 24 adopted in full; 25 ///// 26
27 3 On August 19, 2024, plaintiff filed a motion requesting an extension of any deadlines in this action on the grounds that he had been repeatedly transferred from one prison to another. (Doc. 28 No. 22.) Plaintiff’s motion is denied as moot in light of this order. 1 4. The findings and recommendations issued on July 10, 2024 (Doc. No. 18) are 2 adopted in full; 3 5. Plaintiff's motions for injunctive relief (Doc. Nos. 14, 17) are denied; 4 6. Plaintiff's motion for extension of any deadline in this action (Doc. No. 22) is 5 denied as moot in light of this order; and 6 7. This matter is referred back to the assigned magistrate judge for further 7 proceedings consistent with this order. 8 IT IS SO ORDERED. ” | Dated: _November 14, 2024 Dal A. 2, sxe 10 DALE A. DROZD UNITED STATES DISTRICT JUDGE
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