(PC) Wells v. Gonzales

Opinion

1 2 3 4 5 6 7 10 11 FRANK WELLS, No. 1:17-cv-01240-DAD-EPG (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, IN PART, AND 14 ROSA GONZALES, GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IN PART 15 Defendant. (Doc. Nos. 58, 75, 92) 16 17 Plaintiff Frank Wells is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. This case 20 proceeds against defendant on plaintiff’s First Amendment free exercise claim, Religious Land 21 Use and Institutionalized Persons Act of 2000 (“RLUIPA”) claim, First Amendment retaliation 22 claim, Fourth Amendment unreasonable search claim, and claim under California Civil Code § 23 52.1 (the “Bane Act”). (Doc. Nos. 1, 8, 10.) 24 On May 14, 2020, the assigned magistrate judge issued findings and recommendations 25 recommending that defendant’s motion for summary judgment (Doc. No. 58) be granted in part, 26 and that defendant’s motion to strike plaintiff’s unauthorized sur-replies (Doc. No. 75) be denied. 27 (Doc. No. 92.) In particular, the magistrate judge recommended that defendant’s motion for 28 summary judgment on plaintiff’s First Amendment free exercise claim, RLUIPA claim, and 1 Fourth Amendment unreasonable search claim be granted, but that summary judgment on 2 plaintiff’s First Amendment retaliation claim and Bane Act claim be denied. (Id. at 24.) In 3 addition, the magistrate judge found that defendant is not entitled to summary judgment on 4 qualified immunity grounds with respect to plaintiff’s First Amendment retaliation claim. (Id. at 5 22–24.) The findings and recommendations contained notice that any objections thereto were to 6 be filed within thirty (30) days after service. (Id. at 23.) On June 11, 2020, the court provided 7 plaintiff with an extension of time in which to either file his objections or request an additional 8 extension of time in which to do so. (Doc. No. 96.) On July 28, 2020, the court granted plaintiff 9 a second 30-day extension of time in which to file his objections. (Doc. No. 98.) To date, 10 plaintiff has not filed any objections to the pending findings and recommendations, and the time 11 in which to do so has now passed. On June 11, 2020, defendant timely filed her objections to the 12 pending findings and recommendations. (Doc. No. 95.) Plaintiff did not file a reply to 13 defendant’s objections. 14 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 15 de novo review of this case. Having carefully reviewed the entire file, including defendant’s 16 objections, the undersigned adopts the pending findings and recommendations, in part. For the 17 reasons discussed below, the undersigned declines to adopt the pending findings and 18 recommendations as to plaintiff’s Bane Act claim. As to plaintiff’s other claims, the undersigned 19 concludes that the pending findings and recommendations are supported by the record and by 20 proper analysis. 21 In her objections to the pending findings and recommendations, defendant objects to the 22 recommendation that her motion for summary judgment on plaintiff’s retaliation and Bane Act 23 claims be denied. (Doc. No. 95 at 2.) Defendant also objects to the magistrate judge’s finding 24 that she is not entitled to qualified immunity with respect to plaintiff’s retaliation claim. (Id. at 7– 25 8.) Defendant does not object to the recommendation that her motion to strike be denied. 26 As to plaintiff’s retaliation claim, defendant contends that the magistrate judge failed to 27 consider that her conduct advanced a legitimate penological goal, which defendant characterizes 28 as “discouraging inmates from unlawfully obtaining contraband.” (Id. at 2–5.) However, the 1 undersigned notes that the magistrate judge did in fact consider defendant’s argument in this 2 regard, providing the following analysis: 3 Defendant contends that “preventing contraband is a legitimate, compelling interest” and that she “had legitimate penological 4 reasons to counsel Plaintiff.” ([Doc. No. 58-2] at 25). There is no doubt that “[c]ontrolling contraband within a prison is a legitimate 5 penological interest.” Nunez v. Duncan, 591 F.3d 1217, 1228 (9th Cir. 2010). Rather, the question is whether threatening to write 6 Plaintiff up for manipulation of staff in response to Plaintiff stating that he would file a staff misconduct complaint reasonably 7 advanced the goal of controlling contraband. The Court finds that it does not. Plaintiff has a First Amendment right to file a grievance, 8 even if the subject of that grievance concerns his purported right to keep something that a prison official believes is contraband. Filing 9 a grievance does not itself entitle him to keep the artifact. It merely provides a method to express his complaint and receive direction 10 from the prison. Filing a grievance, or threatening to file one, is not a manipulation of staff. It is a First Amendment right. Thus, 11 threatening to write Plaintiff up for manipulating staff did not reasonably advance the goal of controlling contraband, especially as 12 the contraband in question (i.e., the [Native spiritual artifact] soap bear totem) had already been confiscated. 13 Accordingly, the Court finds Plaintiff has put forth evidence that, 14 taken in the light most favorable to Plaintiff, presents a genuine issue of material fact regarding whether Defendant Gonzales 15 threatened to write Plaintiff up for manipulation of staff in response to Plaintiff’s declaration that he would file a staff misconduct 16 complaint and whether the action did not reasonably advance a legitimate correctional goal. 17 18 (Doc. No. 92 at 13–14.) Defendant’s objections simply do not address this analysis. Moreover, 19 the undersigned finds the magistrate judge’s analysis to be proper and supported by the record. 20 Notably, the undersigned agrees that there are genuine issues of material fact that preclude 21 summary judgment in defendant’s favor on plaintiff’s retaliation claim because, as the magistrate 22 judge correctly found, 23 [i]t is undisputed that Plaintiff approached Defendant Gonzales on November 18, 2016 to informally resolve the confiscation of the 24 soap bear totem. Although the parties characterize the subsequent conversation in contrasting terms—counseling, informing, advising 25 as opposed to threatening—it is undisputed that Plaintiff stated that he intended to file a staff misconduct complaint against Defendant 26 and that Defendant stated that if Plaintiff continued he would be written up for manipulation of staff. 27 28 (Doc. No. 92 at 12) (internal citations omitted). In addition, the magistrate judge noted that the 1 parties disputed “whether the manipulation of staff write-up would be in the form of a counseling 2 chrono (CDCR form 128) or a rules violation report (CDCR form 115).” (Id. at n.7.) 3 As to defendant’s assertion of her entitlement to qualified immunity with respect to 4 plaintiff’s retaliation claim, the magistrate judge found that plaintiff’s right under the First 5 Amendment to file an inmate grievance was clearly established in November 2016 when he told 6 defendant that he intended to file a staff misconduct complaint against her. (Doc. No. 92 at 12, 7 23–24) (citing Entler v. Gregoire, 872 F.3d 1031, 1043 (9th Cir. 2017) (concluding that “a 8 reasonable official would [] have understood that disciplining Entler for threatening to file a civil 9 suit was constitutionally impermissible”)). In other words, “it was clearly established in 10 November 2016 that plaintiff’s threat to file a staff complaint against defendant Gonzales was 11 protected conduct,” and thus defendant is not entitled to summary judgment in her favor on 12 qualified immunity grounds with respect to plaintiff’s claim that defendant retaliated against him 13 by threatening to write him up for manipulation of staff after he stated he intended to file a staff 14 complaint. (Id. at 24.) The undersigned agrees with the magistrate judge’s finding in this regard. 15 See Gleason v. Placencia, No. 1:19-cv-00539-LJO-EPG, 2020 WL 3497001, at *3 (E.D. Cal. 16 June 29, 2020) (noting “threats of action, through either inmate grievance or lawsuit, have been 17 clearly ‘embraced’ as one of the contours of the constitutional right to redress of grievances” 18 under Ninth Circuit precedent). 19 Defendant argues that the magistrate judge erred in focusing “on a general broad 20 proposition” instead of ‘the specific factual context of the case.” (Doc. No. 95 at 8.) According 21 to defendant, the qualified immunity inquiry in this case is: “would a reasonable prison official in 22 Gonzales’s position have known that counseling an inmate that they cannot manipulate a staff 23 member to obtain contraband, was a violation of plaintiff’s constitutional rights?” (Id.) While 24 the undersigned recognizes that the qualified immunity inquiry must be undertaken in light of the 25 specific context of the particular case, see Saucier v. Katz, 533 U.S. 194, 201 (2001), here the 26 magistrate judge correctly found that there is a genuine dispute of material fact regarding 27 defendant’s conduct, i.e., whether defendant “counseled” plaintiff to discourage inmates from 28 obtaining contraband or “threatened” plaintiff with a write up for manipulation of staff in 1 response to his statement that he intended to file a grievance. If the finder of fact were to find the 2 latter, defendant would not be entitled to qualified immunity. Accordingly, based on the evidence 3 before the court on summary judgment, the undersigned agrees that defendant is not entitled to 4 summary judgment in her favor on qualified immunity grounds with respect to plaintiff’s 5 retaliation claim.1 6 Finally, as to plaintiff’s Bane Act claim, defendant contends that the magistrate judge 7 erred in failing to consider that speech alone cannot lead to liability under the Bane Act because 8 “[s]peech is insufficient to establish the requisite threat unless it includes threats of violence.” 9 (Doc. No. 95 at 6.) Defendant argues that the evidence before the court on summary judgment 10 shows that she did not threaten violence at any time, and at most, she threatened to write plaintiff 11 up for manipulation of staff and announced a punitive search of the law library in response to 12 plaintiff’s stating his intention to file a staff misconduct complaint against her. (Id.) The 13 undersigned notes that defendant appears to be raising this argument for the first time in her 14 objections to the pending findings and recommendations and thus it was not addressed by the 15 magistrate judge. Nevertheless, it is true that the Bane Act explicitly states that “speech alone is 16 not sufficient to support” a § 52.1 action, unless the “speech itself threatens violence” and the 17 person against whom the threat is directed “reasonably fears that, because of the speech, violence 18

19 1 Defendant also objects to the magistrate judge’s recommendation that summary judgment on plaintiff’s retaliation claim—specifically that defendant retaliated against him on November 18, 20 2016 by announcing a search of the law library clerk station where he worked—be denied. (Doc. No. 95 at 5.) Though not entirely clear, it appears that defendant objects because, according to 21 defendant, the magistrate judge did not afford appropriate deference and flexibility to defendant, who submitted a declaration stating that she would have searched that area regardless of 22 plaintiff’s intent to file a staff complaint. (Id.) The undersigned is not persuaded by defendant’s 23 argument, particularly because the magistrate judge correctly found that the evidence before the court on summary judgment, when taken in the light most favorable to plaintiff, established that 24 there is a genuine issue of material fact regarding “whether Defendant Gonzales announced a punitive search of the law library in response to Plaintiff’s declaration that he would file a staff 25 misconduct complaint and whether the action did not reasonably advance a legitimate correctional goal.” (Doc. No. 92 at 16.) Whether deference is due or not, the court does not 26 weigh evidence or make credibility determinations at the summary judgment stage. See T.W. 27 Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (“Nor does the judge [on summary judgment] make credibility determinations with respect to statements 28 made in affidavits, answers to interrogatories, admissions, or depositions”). 1 will be committed” and that “the person threatening violence had the apparent ability to carry out 2 the threat.” Cal. Civ. Code § 52 .1(j); see also Price v. Peerson, 13-cv-3390-PSG-JEM, 2014 WL 3 12579814, at *3 (C.D. Cal. Feb. 12, 2014) (“As California courts and federal district courts in the 4 Ninth Circuit continually make clear, the Bane Act requires much more by way of threat, 5 intimidation, and coercion than an allegedly false disturbance report.”) (and cases cited therein). 6 The undersigned finds that the evidence before the court on summary judgment does not include 7 any evidence even suggesting that defendant threatened violence against plaintiff. Here, the 8 evidence on summary judgment is undisputed that defendant Gonzales did not actually issue a 9 chrono or a rules violation report against plaintiff. Likewise, there is no allegation or evidence 10 that defendant Gonzales conducted a search of plaintiff’s work station at the law library as she 11 had announced on November 18, 2016 that she would do two weeks later. Thus, plaintiff’s Bane 12 Act claim is premised solely on alleged speech by defendant Gonzales. Accordingly, the court 13 will decline to adopt the findings and recommendations with respect to plaintiff’s Bane Act claim 14 and will grant defendant’s motion for summary judgment on that claim. 15 Accordingly, 16 1. The findings and recommendations issued on May 14, 2020 (Doc. No. 92) are 17 adopted, in part; 18 2. Defendant’s motion for summary judgment (Doc. No. 58) is granted in part and 19 denied in part; 20 a. Summary judgment is granted in defendant’s favor on plaintiff’s First 21 Amendment free exercise claim, RLUIPA claim, Fourth Amendment 22 unreasonable search claim, and Bane Act claim; 23 b. Summary judgment is denied as to plaintiff’s First Amendment retaliation 24 claim; 25 c. Defendant is not entitled to qualified immunity on plaintiff’s First 26 Amendment retaliation claim; 27 3. Defendant’s motion to strike (Doc. No. 75) is denied; and 28 ///// wOoOe 8 UV VEO EAE SOU I ete OY

1 4. This action is referred back to the assigned magistrate judge for further 2 proceedings. 3 | IT IS SO ORDERED. 23 ‘ Dated: _ September 21, 2020 Dla Ve £ “oF 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28