1 2 3 4 5
7 UNITED STATES DISTRICT COURT
8 EASTERN DISTRICT OF CALIFORNIA
10 THOMAS LEE GLEASON, Case No. 1:19-cv-00539-LJO-EPG (PC)
11 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT’S 12 v. MOTION TO DISMISS BE DENIED
13 G. PLACENCIA, (ECF NO. 34)
14 Defendant. FOURTEEN-DAY DEADLINE
16 17 I. BACKGROUND 18 Thomas Gleason (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This case is proceeding on 20 Plaintiff’s claims against defendant G. Placencia (“Defendant”) for excessive force in violation 21 of the Eighth Amendment and retaliation in violation of the First Amendment. (ECF Nos. 10, 22 27, & 28). 23 On December 17, 2019, Defendant filed a motion to dismiss Plaintiff’s retaliation 24 claim. (ECF No. 34). On December 26, 2019, Plaintiff filed his opposition. (ECF No. 37). 25 On December 31, 2019, Defendant filed his reply. (ECF No. 38). 26 For the reasons that follow, the Court will recommend that Defendant’s motion to 27 dismiss be denied. 28 \\\ 1 II. PLAINTIFF’S SECOND AMENDED COMPLAINT 2 a. Summary 3 The events alleged in the complaint occurred at the Delano State Prison reception center 4 building. 5 On March 20, 2017, at approximately 2:30 p.m., Defendant gave all the United States 6 postal mail to an inmate to pass out. The inmate threw out just about all the mail for the black 7 inmates. Plaintiff personally got three of his letters out of the trash. 8 Plaintiff confronted Defendant about the matter, and Defendant told Plaintiff not to tell 9 him how to run the unit. Plaintiff then asked for a 6021 form. Defendant asked Plaintiff why 10 he wanted one, and Plaintiff replied “because I’m going to 602 this matter.” Defendant then 11 said “turn around and cuff-up.” Defendant then took Plaintiff into the sally port, pressed 12 Plaintiff’s face against the wall, and hit Plaintiff on the side of the head and in the ribs. 13 Defendant then said “listen[,] I run this fucking building the way I see fit do you hear me.” 14 Plaintiff said “yes,” because he did not want to be hit again. Defendant then asked Plaintiff if 15 he still wanted the 602, and Plaintiff replied “no.” Defendant then slapped Plaintiff on the side 16 of the head and said, “yeah that’s what I thought[,] now go lock-up shit head.” 17 Plaintiff alleges that Defendant “did chill my constitutional rights towards fruture [sic] 18 First [A]mendment activity and make me [illegible] about writing a 602 at all.” 19 b. Screening Order 20 The Court screened Plaintiff’s Second Amended Complaint, and ordered that this case 21 proceed on Plaintiff’s claims against Defendant for excessive force in violation of the Eighth 22 Amendment and retaliation in violation of the First Amendment. (ECF Nos. 10, 27, & 28). 23 III. DEFENDANT’S MOTION TO DISMISS 24 a. Defendant’s Position 25 Defendant points out that “Gleason alleges that he orally requested a grievance form, 26 27
28 1 A 602 is also referred to as a grievance. 1 and threatened to file a grievance against Defendant Placencia, and that in response Placencia 2 pressed Gleason’s face against a wall and punched him in the ribs.” (ECF No. 34-1, p. 1). 3 Defendant argues that “Gleason’s oral statements are not the constitutionally protected conduct 4 necessary to support a claim for retaliation.” (Id.). 5 Moreover, even if the oral statements were protected, Defendant is entitled to qualified 6 immunity because “[i]t was not clearly established at the time (in early 2017) that such oral 7 statements were constitutionally protected.” (Id. at 5). “There is no Ninth Circuit or Supreme 8 Court precedent establishing that Gleason’s alleged conduct was protected.” (Id. at 7). 9 Additionally, there is no robust census of persuasive authority. (Id.). 10 b. Plaintiff’s Position 11 Plaintiff argues that his oral threat to file a grievance was protected conduct, and that it 12 was clearly established that it was protected conduct when he told Defendant that he was going 13 to file a grievance. 14 c. Legal Standards 15 i. Motions to Dismiss 16 In considering a motion to dismiss, the Court must accept all allegations of material fact 17 in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007); Hosp. Bldg. Co. v. 18 Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts 19 in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), 20 abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 21 31 F.3d 813, 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved 22 in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro 23 se pleadings “must be held to less stringent standards than formal pleadings drafted by 24 lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints 25 should continue to be liberally construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)). 26 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 27 complaint. See Iqbal, 556 U.S. at 679. “Federal Rule of Civil Procedure 8(a)(2) requires only 28 ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order 1 to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’” 2 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting 3 Conley v. Gibson, 355 U.S. 41, 47 (1957)). “The issue is not whether a plaintiff will ultimately 4 prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 5 416 U.S. at 236 (1974). 6 The first step in testing the sufficiency of the complaint is to identify any conclusory 7 allegations. Iqbal, 556 U.S. at 679. “Threadbare recitals of the elements of a cause of action, 8 supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 9 U.S. at 555). “[A] plaintiff’s obligation to provide the grounds of his entitlement to relief 10 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause 11 of action will not do.” Twombly, 550 U.S. at 555 (citations and quotation marks omitted). 12 After assuming the veracity of all well-pleaded factual allegations, the second step is for 13 the court to determine whether the complaint pleads “a claim to relief that is plausible on its 14 face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional 15 12(b)(6) standard set forth in Conley, 355 U.S. at 45-46). A claim is facially plausible when 16 the plaintiff “pleads factual content that allows the court to draw the reasonable inference that 17 the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 18 556). The standard for plausibility is not akin to a “probability requirement,” but it requires 19 “more than a sheer possibility that a defendant has acted unlawfully.” Id. 20 ii. First Amendment Retaliation Claims 21 A retaliation claim requires “five basic elements: (1) an assertion that a state actor took 22 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and 23 that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the 24 action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 25 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted); accord Watson v. Carter, 668 F.3d 1108, 26 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 27 While prisoners have no freestanding right to a prison grievance process, see Ramirez v. 28 Galaza, 334 F.3d 850, 860 (9th Cir.2003), “a prisoner's fundamental right of access to the 1 courts hinges on his ability to access the prison grievance system,” Bradley v. Hall, 64 F.3d 2 1276, 1279 (9th Cir.1995), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230 3 n.2 (2001). Because filing administrative grievances and initiating civil litigation are protected 4 activities, it is impermissible for prison officials to retaliate against prisoners for engaging in 5 these activities. Rhodes, 408 F.3d at 567. 6 iii. Qualified Immunity 7 “The doctrine of qualified immunity protects government officials ‘from liability for 8 civil damages insofar as their conduct does not violate clearly established statutory or 9 constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 10 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 11 In determining whether a defendant is entitled to qualified immunity, the Court must 12 decide (1) whether the facts alleged by plaintiff make out a violation of a constitutional right; 13 and (2) whether that right was clearly established at the time of the officer's alleged 14 misconduct. Id. at 232. 15 To be clearly established, a right must be sufficiently clear “that every ‘reasonable 16 official would [have understood] that what he is doing violates that right.’” Reichle v. 17 Howards, 132 S. Ct. 2088, 2090 (2012) (quoting Al–Kidd, 563 U.S. at 741) (alteration in 18 original). This immunity protects “all but the plainly incompetent or those who knowingly 19 violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 20 d. Analysis 21 The issues before this Court are whether a threat to file a grievance is protected conduct, 22 and if so, whether this was clearly established at the time of the incident alleged in the 23 complaint. Under Ninth Circuit precedent, the answer to both questions is yes.2 24 Defendant appears to argue that there is no Ninth Circuit case law on point. However, 25 the Ninth Circuit addressed these issues in Entler v. Gregoire, 872 F.3d 1031 (2017): 26
27 2 Because Plaintiff has alleged that he threatened to file a grievance regarding the incident alleged in the complaint, and because this is protected conduct, the Court need not, and will not, address whether Plaintiff 28 engaged in protected conduct by requesting a grievance form. 1 The most fundamental of the constitutional protections that prisoners retain are 2 the First Amendment rights to file prison grievances and to pursue civil rights litigation in the courts, for “[w]ithout those bedrock constitutional guarantees, 3 inmates would be left with no viable mechanism to remedy prison injustices.” Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). 4
5 The dichotomy that the district court drew between formal and informal grievances has no constitutional underpinning; nor does the distinction between 6 a threat to initiate litigation and the litigation. To the contrary, “[t]he applicability of the constitutional right to redress of grievances does not hinge 7 on the label the prison places on a particular complaint,” Brodheim v. Cry, 584 8 F.3d 1262, 1267 n.4 (9th Cir. 2009), and embraces threats to sue, Jones v. Williams, 791 F.3d 1023, 1035–36 (9th Cir. 2015). Thus, in Jones, where the 9 prisoner was sanctioned for verbally confronting the Penitentiary's Assistant Food Services Manager in the prison's kitchen “with complaints of 10 discrimination and a threat to sue,” we held that summary judgment dismissing 11 plaintiff's retaliation claim was improper because “Jones's [verbal] complaints of discrimination to his supervisors and statements of intention to file suit were 12 conduct protected by the First Amendment.” Id.
13 The district court should have recognized, therefore, that the form of the 14 complaints—even if verbal, let alone, as here, written—is of no constitutional significance, and that threats to sue fall within the purview of the 15 constitutionally protected right to file grievances. See Hargis v. Foster, 312 16 F.3d 404, 411 (9th Cir. 2002) (reversing summary judgment on a prisoner's First Amendment claim because “a jury could reasonably conclude that the prison 17 officials acted unreasonably in characterizing [a prisoner's verbal threat to sue] as an attempt to coerce ...”). 18
19 …
20 There remains the issue of qualified immunity. Appellees would not be entitled to prevail if the constitutional right violated “was clearly established at the time 21 of the challenged conduct.” City of San Francisco v. Sheehan, ––– U.S. ––––, 22 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015). “A clearly established right is one that is ‘sufficiently clear that every reasonable official would have 23 understood that what he is doing violates that right.’ ” Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (quoting 24 Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 25 (2012)). “In the Ninth Circuit, we begin our inquiry by looking to binding precedent. If the right is clearly established by decisional authority of the 26 Supreme Court or this Circuit, our inquiry should come to an end.” Boyd v. Benton Cty., 374 F.3d 773, 781 (9th Cir. 2004) (citation omitted). 27
28 Although there is no Supreme Court case directly on point, there is clear Ninth 1 Circuit precedent. 2 First, it was, of course, clearly established when Entler filed his grievances in 3 2012 that he had the “constitutional right” to do that, see Turner, 482 U.S. at 84, 107 S.Ct. 2254—a right that did not “hinge on the label” the prison placed on 4 his complaints. Brodheim, 584 F.3d at 1271 n.4. Nor could the prison's officials 5 “escape constitutional scrutiny by citing a legitimate penological interest” in the absence— as here—of a “valid, rational connection” between the adverse action 6 imposed on the prisoner and the government's stated interest. Id. at 1272–73. And it was also clearly established that Entler had the time-honored right to 7 pursue civil litigation, a right liberally exercised for over forty years. See 8 William Bennett Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv. L. Rev. 610, 610–11 (1979) (recognizing 9 that “[p]risoners, like other people, may sue state and local officials under 42 U.S.C. § 1983, to redress the deprivation of federal constitutional rights” and 10 discussing an “upsurge in volume” of such suits beginning in the 1970s). 11 It was also beyond cavil that Entler's grievances were the first requisite steps in 12 the pursuit of civil litigation. See Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (“[E]xhaustion is now required for all action[s] ... 13 brought with respect to prison conditions, whether under § 1983 or any other 14 Federal law.”). The threat of civil litigation if a prisoner's complaints are not redressed is implicit in every grievance; explicitly articulating that threat as a 15 precursor to initiating civil litigation does not suddenly make that threat more 16 intimidating or coercive.
17 Thus, in the analogous Title VII retaliation context, we noted—twenty years before Entler was punished—that “[w]e see no legal distinction to be made 18 between the filing of a charge which is clearly protected, and threatening to file 19 a charge.” Gifford v. Atchison, Topeka and Santa Fe Ry. Co., 685 F.2d 1149, 1156 n.3 (9th Cir. 1982) (citation omitted). 20 We find the Gifford footnote persuasive since we see no material distinction 21 between retaliation in the Title VII context and prisoner retaliation. The sanctity 22 of a constitutional right is at least of equal moment as a statutory right. And even though, in the face of Ninth Circuit precedent, we need not resort to out-of- 23 circuit caselaw, we note with approval two out-of-circuit district court cases involving prisoner litigation. 24
25 In Sprau v. Coughlin, 997 F.Supp. 390 (W.D.N.Y. 1998), the district court held that “plaintiff's conduct in threatening to file a [prisoner] complaint was 26 protected by the First Amendment's guarantee of the right to petition the government for redress of grievance.” Sprau, 997 F.Supp. at 393. 27
28 Similarly, in Carter v. Dolce, 647 F.Supp.2d 826 (E.D. Mich. 2009), the district 1 court held that there was “little difference between retaliating against a 2 [prisoner] for filing a grievance, and retaliating for threatening to file one.” Carter, 647 F.Supp.2d at 834. The court cited as analogous two Sixth Circuit 3 decisions, one of which expressly relies on the Gifford footnote: In Jackson v. City of Columbus, 194 F.3d 737, 756–57 (6th Cir. 1999), abrogated on other 4 grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 5 L.Ed.2d 1 (2002), the circuit court held that an employee engages in protected activity under the First Amendment when he threatens to file a lawsuit on a 6 matter of public concern, and in Polk v. Yellow Freight System, Inc., 801 F.2d 190 (6th Cir. 1986), the circuit court held that there “ ‘is no legal distinction ... 7 between the filing of a charge which is clearly protected ... and threatening to 8 file a charge’ ” under Title VII's anti-retaliation provision, Polk, 801 F.2d at 200 (quoting Gifford footnote). The court in Carter further recognized that 9 “threatening to resort to the formal grievance process is itself the first step in that process.” Carter, 647 F.Supp.2d at 834. 10
11 In essence, it is illogical to conclude that prison officials may punish a prisoner for threatening to sue when it would be unconstitutional to punish a prisoner for 12 actually suing. Thus, once again, as we held in Hargis, ten years before Entler was sanctioned, a threat to sue—even if verbal—may not ipso facto rise to the 13 level of coercion to support prison retaliation. 14 Taking the complaint as true in the face of a 12(c) motion to dismiss on the 15 pleadings, see Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009) (“We must 16 accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party”), we cannot conclude that a 17 reasonable official would not have understood that disciplining Entler for threatening to file a civil suit was constitutionally impermissible. Therefore, on 18 the papers before us, Appellees are not entitled to qualified immunity for 19 Entler's threats to initiate civil litigation.
20 Entler v. Gregoire, 872 F.3d 1031, 1039–43 (9th Cir. 2017) (footnotes omitted). 21 In this case, Plaintiff has alleged that Defendant gave mail to an inmate to pass out. 22 That inmate threw out almost all of the black inmates’ mail, and Plaintiff had to get of his 23 letters out of the trash. Plaintiff confronted Defendant about the matter, and Defendant told 24 Plaintiff not to tell him how to run the unit. Plaintiff then asked for a grievance form, and told 25 Defendant that he was going to file a grievance regarding the matter. Instead of giving Plaintiff 26 a grievance form, Defendant responded by assaulting Plaintiff, and telling Plaintiff that he 27 “run[s] this fucking building the way [he] see[s] fit….” After the assault Defendant asked 28 Plaintiff if he still wanted a grievance form, and Plaintiff said no. 1 These allegations state a quintessential claim for retaliation, and the fact that Plaintiff 2 orally threatened to file a grievance, but was allegedly assaulted by Defendant before he had 3 the chance to actually file the grievance, does not change the analysis. 4 As discussed above, threatening to sue is protected conduct. While Plaintiff did not 5 explicitly threaten to sue, Plaintiff allegedly threatened to file a grievance. Because of the 6 exhaustion requirement, “[t]he threat of civil litigation if a prisoner's complaints are not 7 redressed is implicit in every grievance….” (Id. at 1042). Thus, Plaintiff’s threat to file a 8 grievance was also a threat to sue, which is protected conduct. 9 Defendant makes much of the fact that Plaintiff threatened to file a grievance, but was 10 allegedly assaulted before he actually filed a grievance. However, the Court in Entler made 11 clear that “the distinction between a threat to initiate litigation and the litigation” “has no 12 constitutional underpinning.” (Id. at 1039). The same is true in regards to the distinction 13 Defendant attempts to make between threats to file grievances and filing grievances. The Court 14 in Entler stated that “the form of the complaints … is of no constitutional significance….” 15 (Id.). The Court in Entler also quoted Carter v. Dolce, 647 F.Supp.2d 826 (E.D. Mich. 2009), 16 with approval, in which “the district court held that there was ‘little difference between 17 retaliating against a [prisoner] for filing a grievance, and retaliating for threatening to file 18 one.’” Entler, 872 at 1042 (alteration in original) (quoting Carter, 647 F.Supp.2d at 834). 19 Thus, Plaintiff engaged in protected conduct when he threatened to file a grievance. 20 Next, the Court turns to Defendant’s argument that he is entitled to qualified immunity. 21 In determining whether a defendant is entitled to qualified immunity, the Court must decide (1) 22 whether the facts alleged by plaintiff make out a violation of a constitutional right; and (2) 23 whether that right was clearly established at the time of the officer's alleged misconduct. 24 Pearson, 555 U.S. at 232. 25 As to the first prong, as discussed above, Plaintiff has sufficiently alleged that he was 26 retaliated against in violation of his First Amendment rights. 27 As to the second prong, as discussed in Entler, a threat to sue is protected conduct, and 28 this was clearly established at (if not before) the time of the incident in Entler, which occurred 1 in 2012. As the incident alleged in Plaintiff’s complaint occurred in 2017, it was clearly 2 established at the time of the incident that threatening to file a grievance, which is also 3 implicitly a threat to initiate litigation, is protected conduct.3 Thus, Defendant is not entitled to 4 qualified immunity.4 5 IV. RECOMMENDATION 6 For the reasons set forth above, the Court HEREBY RECOMMENDS that Defendant’s 7 motion to dismiss be DENIED. 8 These findings and recommendations are submitted to the United States district judge 9 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 10 (14) days after being served with these findings and recommendations, any party may file 11 written objections with the court. Such a document should be captioned “Objections to 12 Magistrate Judge’s Findings and Recommendations.” 13 \\\ 14 \\\ 15 \\\ 16 17 3 In arguing that he is entitled to qualified immunity, Defendant points out that “[t]he magistrate judge here has previously issued findings and recommendations in an unrelated case stating that ‘the existing precedent 18 in this district and the other districts in California had placed beyond debate in early 2017 that verbal conduct is protected conduct for purposes of a retaliation claim.’ Williams v. Amay, No. 1:17-cv-01332-AWI-EPG (PC), 19 2018 U.S. Dist. LEXIS 150309, at *23 (E.D. Cal. Aug. 31, 2018). Those findings and recommendations were not adopted. See Williams v. Amay, No. 1:17-cv-01332-AWI-EPG (PC), 2019 WL 6728054, at *7 (E.D. Cal. Mar. 29, 20 2019) (declining to adopt findings and recommendations and finding defendants were entitled to qualified immunity).” (ECF No. 34-1, p. 6). 21 While Defendant is correct that this Court’s findings and recommendations in Williams were not adopted, the district judge’s order in Williams is not on point. As the district judge in Williams pointed out, “[w]ith respect 22 to protected activity, the Complaint appears to expressly identify three activities: (1) requesting Wellbutrin, (2) explaining to Dr. Amay his past experience with other antidepressants, and (3) telling Dr. Amay what 15 C.C.R. § 23 3364.1(a)(5)(G) states.” Williams, 2019 WL 6728054, at *6. Williams had nothing to do with whether a threat to file a grievance is protected conduct, which is the issue in this case. Moreover, in granting qualified immunity, the 24 district judge stated “Defendants maintained medical treatment that complied with the Eighth Amendment, albeit not Plaintiff’s choice of treatment before and after Plaintiff engaged in First Amendment protected conduct. The 25 Court is aware of no cases, and Plaintiff cited none, that would put a reasonable official on notice that such conduct violated the First Amendment.” Id. at *7. This grant of qualified immunity had nothing to do with the 26 fact that the allegedly protected conduct was verbal, rather than in writing. 4 In his reply, defense counsel argues that Plaintiff made threatening comments, and “requests that the 27 Court remind Plaintiff Gleason of his obligation of civility in this litigation.” (ECF No. 38, p. 4). Plaintiff does have an obligation of civility in this litigation, but the Court does not read Plaintiff’s opposition as including a 28 threat to either the Court or defense counsel. 1 Any reply to the objections shall be served and filed within seven (7) days after service 2 || of the objections. The parties are advised that failure to file objections within the specified 3 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 4 || (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 IT IS SO ORDERED. Dated: _ January 8, 2020 [sf ey g UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11