(PC) Gleason v. Lee

Opinion

1 2 3 4 5 8 9 THOMAS LEE GLEASON, Case No. 2:19-cv-00621-WBS-JDP (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT DEFENDANTS’ MOTION FOR 11 v. JUDGMENT ON THE PLEADINGS BE DENIED 12 M. VOONG, et al., ECF No. 51 13 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 14 15 16 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 17 under 42 U.S.C. § 1983. He claims that Johnson violated his Fourteenth Amendment right to 18 procedural due process and that both Johnson and Lee retaliated against him in violation of his 19 First Amendment rights.1 Defendants have moved for judgment on the pleadings, addressing 20 only the retaliation claims and arguing that plaintiff did not exhaust his administrative remedies 21 as required by the Prison Litigation Reform Act of 1997, 42 U.S.C. § 1997e(a). Because plaintiff

22 1 Previously, the court screened the case and determined that plaintiff had not alleged any 23 viable claims against defendants Voong and Arnold, at which time plaintiff elected to proceed only with his claims against the remaining six defendants. See ECF No. 21 (adopting fully the 24 findings and recommendations in ECF No. 13). Defendants Justin, Moss, Myers, and Williams then moved to dismiss the claims against them, ECF No. 26, and the court granted the motion, 25 ECF No. 49 (adopting fully the findings and recommendations in ECF No. 38). The motion did not address any of the claims against Johnson or the retaliation claims against Lee; Lee and 26 Johnson are the only remaining defendants. 27 While defendants assert that only the retaliation claims remain, ECF No. 51 at 4, the court has not dismissed any claims against Johnson, see ECF No. 49. Therefore, the due process claims 28 against Johnson remain. I do not address those claims herein. 1 has sufficiently pled a basis to excuse him from the exhaustion requirement, judgment on the 2 pleadings is not appropriate. Therefore, I recommend that the court deny defendants’ motion.2 3 I. Factual Background 4 Plaintiff alleges that on January 23, 2016, Lee came to his cell, yelling and waving a form 5 relating to an appeal of a grievance that he had filed against two officers, Moss and Williams. 6 ECF No. 1 at 7. He alleges that Lee told him to withdraw the appeal or else officers would search 7 his cell. Id. When plaintiff refused to withdraw the appeal, he alleges that Lee ordered Johnson, 8 a subordinate, to conduct a search. Id. at 8. Plaintiff alleges that Johnson then searched the cell 9 and confiscated plaintiff’s tennis shoes, stamps, some personal canteen items, family letters, 10 family photographs, and items of clothing—while Lee watched. Id. Plaintiff further alleges that 11 he did not file a grievance against defendants because he “feared . . . additional retaliation such as 12 being transferred and or having the rest of [his] personal property confiscated and thrown away.” 13 Id. at 15. 14 II. Legal Standards 15 a. Rule 12(c) Standard 16 Defendants move for judgment on the pleadings, limited to plaintiff’s retaliation claims. 17 See ECF No. 51 at 1. Judgment on the pleadings under Rule 12(c) is proper when, even if all 18 material facts in the complaint are taken as true, the moving party is entitled to judgment as a 19 matter of law. Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 (9th Cir. 2011). The 20 court applies the same standard as would govern a motion under Rule 12(b)(6). Id. at 1054 n.4. 21 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 22 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. 23

24 2 Plaintiff has moved to fill a surreply, ECF No. 60, in which he argues that defendants misconstrued his arguments and incorrectly asserted that he had waived certain issues, see ECF 25 No. 61 at 1-5. While federal and local rules do not provide a right to file a surreply, the court can allow a surreply to be filed “where a valid reason for such additional briefing exists, such as 26 where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136, 27 *1 (E.D. Cal. Nov. 8, 2005). Here, plaintiff’s surreply addresses arguments and assertions raised in defendants’ reply to plaintiff’s opposition. See ECF No. 58. Therefore, I grant defendant’s 28 request to file a surreply, ECF No. 60. 1 v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when a plaintiff “pleads 2 factual content that allows the court to draw the reasonable inference that the defendant is liable 3 for the misconduct alleged.” Id. In assessing the sufficiency of the pleadings, “courts must 4 consider the complaint in its entirety, as well as other sources courts ordinarily examine . . . in 5 particular, documents incorporated into the complaint by reference, and matters of which a court 6 may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). 7 Throughout, courts must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 8 404 U.S. 519, 520 (1972) (per curiam). 9 b. Dismissal for Failure to Exhaust Administrative Remedies 10 The Prison Litigation Act (“PLRA”) requires a prisoner plaintiff to exhaust all 11 administrative remedies for a grievance before filing a lawsuit. See 42 U.S.C. § 1997e(a). To 12 exhaust administrative remedies in a California state prison, a grievance must be submitted within 13 30 calendar days of the relevant event. Cal. Code. Reg. tit. 15 § 3084.8(a). However, a failure to 14 exhaust administrative remedies is excused when a threat of retaliation renders the prison 15 grievance system “effectively unavailable.” See McBride v. Lopez, 807 F.3d 982, 986 (9th Cir. 16 2015). For this exception to apply, a plaintiff must show that “(1) he actually believed prison 17 officials would retaliate against him if he filed a grievance, and (2) a reasonable prisoner of 18 ordinary firmness would have believed that the prison official’s action communicated a threat not 19 to use the prison’s grievance procedure and the threatened retaliation was of sufficient severity to 20 deter a reasonable prisoner from filing a grievance.” Rodriguez v. Cty. of Los Angeles, 891 F.3d 21 776, 792 (9th Cir. 2018). 22 Because the exhaustion inquiry often requires the court to consider documents outside the 23 complaint, failure to exhaust should generally be raised in a motion for summary judgment. 24 Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014). But where the face of the complaint 25 establishes the failure to exhaust, a defendant may seek dismissal under Rule 12(b)(6) or 12(c). 26 Id. at 1169. 27 III. Discussion 28 Defendants argue that plaintiff did not exhaust all available administrative remedies 1 before filing this suit. See ECF No. 51 at 3. They further argue that plaintiff’s complaint 2 demonstrates that he is not excused from this requirement because he did not actually believe 3 officials would retaliate against him. ECF No. 51 at 8-10. Additionally, defendants argue that, 4 even if plaintiff subjectively feared retaliation, a reasonable prisoner of ordinary firmness would 5 have understood defendant’s alleged threats to relate only to a specific past grievance and not to 6 future grievances. ECF No. 58 at 6-7. And finally, they argue that the threat was not so severe 7 that it would deter a reasonable prisoner from filing a grievance. Id. at 7. 8 a. PLRA Exhaustion: Subjective Prong 9 Plaintiff alleges that defendants searched his cell and threw away his personal belongings 10 because he had refused their demands to withdraw a grievance, and that he feared such 11 harassment would continue should he file another grievance against them. ECF No. 1 at 7-8, 15. 12 Defendants argue that, “[d]espite conclusory assertions” in his complaint, plaintiff did not 13 experience a subjective fear of retaliation inducing him not to file a grievance. ECF No. 58 at 7. 14 They argue that threats associated with a prior grievance could not have caused plaintiff to fear 15 retaliation should he file another grievance and that plaintiff’s “substantial litigation history 16 demonstrates that he was not deterred from pursuing a grievance concerning Lee and Johnson by 17 any such threat.” Id. at 7-8. 18 Defendants ask the court to take judicial notice of multiple lawsuits filed by plaintiff, ECF 19 No. 59, and to consider them “habit evidence” showing that plaintiff did not fear retaliation in 20 similar circumstances, see ECF No. 58 at 8. Generally, in evaluating a motion for judgment on 21 the pleadings, a court “may not consider any material beyond the pleadings . . . without 22 converting the motion . . . into a motion for summary judgment.” Lee v. City of Los Angeles, 250 23 F.3d 668, 689 (9th Cir. 2001) (applying Rule 12(b)(6) standards) (citation and internal quotation 24 marks omitted). There are two exceptions: (1) a court may take judicial notice of material that is 25 either submitted as part of or necessarily relied on by the complaint; or (2) a court may take 26 judicial notice of matters of public record. Id. at 688-89; Coto Settlement v. Eisenberg, 593 F.3d 27 1031, 1038 (9th Cir. 2010). I will grant defendants’ request to the extent that it asks the court to 28 take judicial notice of the existence of plaintiff’s other lawsuits, ECF No. 59. See Lee, 250 F.3d 1 at 690 (“On a Rule 12(b)(6) motion to dismiss, when a court takes judicial notice of another 2 court’s opinion, it may do so ‘not for the truth of the facts recited therein, but for the existence of 3 the opinion, which is not subject to reasonable dispute over its authenticity.’”) (quoting Southern 4 Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426-27 (3rd 5 Cir. 1999)). 6 However, the existence of plaintiff’s other lawsuits does not establish whether plaintiff 7 feared retaliation—a disputed question. See ECF No. 58 at 8. Plaintiff pled that he was deterred 8 from filing a grievance against defendants because he feared retaliation by them, and the court 9 accepts that factual allegation as true for the purposes of defendants’ Rule 12(c) motion.3 10 b. PLRA Exhaustion: Objective Prong 11 Defendants mount a similar argument when tackling the objective prong, arguing that a 12 person of ordinary firmness would not have understood their alleged actions to amount to a threat 13 deterring a future grievance, since their actions related to a past grievance. See Rodriguez, 891 14 F.3d at 792 (considering whether an incarcerated person of “ordinary firmness would have 15 believed that the [defendants’ actions] communicated a threat not to use the prison’s grievance 16 procedure and the threatened retaliation was of sufficient severity to deter a reasonable prisoner 17 from filing a grievance”). In support of their argument, defendants rely on McBride, but they 18 misconstrue it. In McBride, the plaintiff alleged that he was beaten by guards, two of whom later 19 told him that he was lucky not to have suffered more serious injuries. 807 F.3d at 985. The Court 20 of Appeals rejected the plaintiff’s argument that the beating and accompanying statements 21 rendered the grievance process unavailable. See id. at 987-88. Defendants argue that McBride

22 3 Defendants also cite Denton v. Hernandez, 504 U.S. 25, 32 (1992), to support their 23 argument that the PLRA permits judges to “pierce the veil of the complaint’s factual allegations.” ECF No. 58 at 7 n.3. But Denton involved only an examination of the court’s powers to dismiss 24 frivolous lawsuits under the “in forma pauperis statute,” 42 U.S.C. § 1915 (d), and did not hold that the PLRA authorizes the court to move beyond a complaint’s factual allegations. 504 U.S. at 25 32. Moreover, even in the context of a § 1915(d) screening, the court may only dismiss claims as frivolous when they are “clearly baseless, a category encompassing allegations that are fanciful, 26 fantastic, and delusional.” Id. at 32-33 (internal quotations and citations omitted). Even were I to 27 agree with defendants’ claim that the PLRA permits the court to look beyond the face of a complaint, there is no basis to conclude that plaintiff’s allegations were “fanciful, fantastic, [or] 28 delusional.” Id. 1 shows that a person of ordinary firmness would not interpret threats about a prior grievance to 2 relate to future grievances. See ECF No. 58 at 6-7. But in McBride, the guards made no mention 3 of the grievance system, and the court saw no link between their statements and the grievance 4 system. 807 F.3d at 988. As the Court of Appeals noted, if it had held that the alleged beating 5 was sufficient to excuse PLRA exhaustion, “any hostile interaction between a prisoner and prison 6 officials would render the prison’s grievance system unavailable.” Id. 7 Here, plaintiff alleges that defendants told him that they were acting against him because 8 of his grievance and that he should withdraw it. ECF No. 1 at 7-8. Defendants offer no support 9 for their argument that a retaliatory threat must be directed specifically at future grievances, rather 10 than at the grievance system generally. A threat need not be so specific. See Rodriguez, 891 F.3d 11 at 793 (describing the fears of multiple incarcerated appellees, some of whom only knew of the 12 experiences of others and never received any threat of retaliation themselves). Based on 13 plaintiff’s allegations, a reasonable prisoner of ordinary firmness would have understood 14 defendants to be threatening plaintiff not to use the prison’s grievance procedure. 15 Defendants further argue that, assuming plaintiff to be a reasonable person, his lack of 16 submission to defendants’ alleged threats demonstrates that the threats were not sufficiently 17 severe to deter a reasonable prisoner from filing a grievance. See ECF No. 58 at 7. As they point 18 out, plaintiff alleges that defendants threatened retaliation if he did not withdraw a previously 19 filed grievance, but he did not withdraw the grievance. See id. However, that plaintiff did not 20 withdraw a grievance about other individuals—who did not threaten him—falls short of showing 21 that defendants’ alleged threats were not sufficiently severe to deter a reasonable person from 22 filing a grievance against them. Accepting plaintiff’s allegations as true, defendants’ prior 23 retaliation was a reasonable indicator of how they might behave should plaintiff pursue a 24 grievance against defendants themselves. That defendant Lee is a supervisor only amplifies the 25 threat of future retaliation. See id. (noting that it is “unrealistic to expect [the inmate] to file a 26 grievance against the very people who were threatening retaliation”). As plaintiff puts it, “what 27 sense would it make to file an appeal on the person who is conducting an investigation on an 28 appeal that you’ve filed against staff”? ECF No. 57 at 6. Furthermore, the items that were 1 | allegedly thrown away included some of the items of highest value to many incarcerated 2 | individuals, namely letters and photographs from family. See ECF No. 1 at 7-15. Under the 3 | circumstances alleged in plaintiff's complaint, defendants’ actions were sufficiently severe to 4 | deter a reasonable prisoner from filing a grievance against defendants. 5 | IV. Order and Findings and Recommendations 6 I recommend that the court deny defendants’ motion for judgment on the pleadings, ECF 7 | No. 51. 8 These findings and recommendations are submitted to the U.S. District Judge presiding 9 | over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within 14 days of the service 10 | of the findings and recommendations, the parties may file written objections to the findings and 11 | recommendations with the court and serve a copy on all parties. That document must be 12 || captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding 13 | district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 14 1s IT IS SO ORDERED. 16 ( 1 Sty — Dated: _ August 24, 2021 17 JEREMY D. PETERSON 18 UNITED STATES MAGISTRATE JUDGE

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