NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ROBERT LOUGH, No. 22-35631
Plaintiff-Appellant, D.C. No. 3:20-cv-05894-LK
v. MEMORANDUM* WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Western District of Washington Lauren J. King, District Judge, Presiding
Submitted August 30, 2023**
Before: BENNETT, SUNG, and H.A. THOMAS, Circuit Judges.
Plaintiff-Appellant Robert Lough appeals pro se the district court’s grant of
summary judgment to the Washington State Department of Social and Health
Services, the Washington State Special Commitment Center, and various
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
JS/Panel individual state employees (collectively, “Defendants”). Lough filed claims under
42 U.S.C. § 1983 for, as relevant here, First Amendment retaliation and an alleged
violation of the Equal Protection Clause of the Fourteenth Amendment. Lough’s
claims stem from Defendants’ refusal to allow him to purchase a certain printer for
his legal needs while in civil detention. The district court denied Lough’s partial
motion for summary judgment and granted Defendants’ cross motion for summary
judgment.
We review a district court’s decision on cross motions for summary
judgment de novo. Csutoras v. Paradise High Sch., 12 F.4th 960, 965 (9th Cir.
2021). We affirm the district court’s denial of Lough’s motion for summary
judgment. With respect to the district court’s grant of Defendants’ cross motion for
summary judgment, we affirm as to the equal protection claim and reverse as to the
First Amendment retaliation claim.1
1. The district court did not err in denying Plaintiff’s motion for failure to
properly request summary judgment in accordance with Fed. R. Civ. P. 56. Even if
we construe Plaintiff’s motion as a petition for mandamus relief, as the district
court did in the alternative, we do not have jurisdiction to order mandamus relief
1 The district court raised the issue of the timeliness of Lough’s objections to the magistrate judge’s report but still addressed Lough’s objections on the merits. Defendants have not argued timeliness on appeal. We therefore focus on the merits.
2 against State employees regarding the performance of their official duties. See 28
U.S.C. § 1361.
2. The district court did not err in granting summary judgment in favor of
Defendants on Lough’s equal protection claim. Even assuming that Lough was
similarly situated to the only other resident who was allowed to purchase the
printer, Defendants had a rational basis for the difference in treatment because the
printer had been erroneously listed in the approved catalogue when the other
resident purchased it. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
(absent proof of membership in a protected class, an individual can only succeed
on an equal protection claim by demonstrating intentional, differential treatment
that was unsupported by a rational basis).
3. The district court erred in granting summary judgment in favor of
Defendants on Lough’s First Amendment retaliation claim. “Within the prison
context, a viable claim of First Amendment retaliation entails five basic elements:
(1) An assertion that a state actor took some adverse action against an inmate (2)
because of (3) that prisoner’s protected conduct, and that such action (4) chilled the
inmate’s exercise of his First Amendment rights, and (5) the action did not
reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d
559, 567–68 (9th Cir. 2005). The district court erred because a genuine issue of
material fact exists as to element (2), and the magistrate judge misapplied the
3 relevant substantive law as to element (4). See Soc. Techs. LLC v. Apple Inc., 4
F.4th 811, 816 (9th Cir. 2021) (explaining that on summary judgment, “viewing
the evidence in the light most favorable to the non-movant, [we] determine
whether there are any genuine issues of material fact and whether the district court
correctly applied the relevant substantive law”).
First, a genuine issue of material fact exists regarding whether Defendants
transferred Lough because of his First Amendment-protected activity. “A fact issue
is genuine ‘if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061
(9th Cir. 2002). While we have recognized that “uncorroborated and self-serving”
testimony alone cannot establish a “genuine issue,” id., that is not the case here.
The district court discredited as “uncorroborated and self-serving testimony”
Lough’s declaration that he was transferred because of his self-advocacy and
administrative grievances against Defendants. But unlike in Villiarimo and similar
cases, Lough’s declaration does not stand alone.
Lough points to his repeated self-advocacy and grievances against the
Defendants as evidence to support his retaliation claim. In particular, Lough
highlights his administrative grievance against Brian Shirley, which Lough filed
just a few months before his transfer. “We have held that proximity in time may
support an inference of retaliation sufficient to survive summary judgment.”
4 Anthoine v. N. Cent. Cntys. Consortium, 605 F.3d 740, 751 (9th Cir. 2010); see
also Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th Cir. 2003) (finding that adverse
action soon after a prisoner filed grievances supported an inference of retaliatory
motive).
To argue that Lough’s transfer was not retaliatory, Defendants point solely
to a competing declaration by Shirley, to whom Lough had repeatedly directed
complaints regarding his printer request and against whom Lough had filed at least
one administrative grievance in August 2019. Shirley’s declaration states that “[i]t
is my recollection that Mr. Lough had been exhibiting aggression towards his
therapist and the resident advocate” and was issued a behavior report “for yelling
and cussing at a staff member.” 2 According to Shirley, “the treatment team
concluded that Mr. Lough needed to be moved from Gingko to the Cedar West
unit,” and on January 9, 2020, the Placement Committee approved the move.
Shirley concedes that he was a member of both the treatment team and the
Placement Committee. Taking the current record evidence in the light most
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ROBERT LOUGH, No. 22-35631
Plaintiff-Appellant, D.C. No. 3:20-cv-05894-LK
v. MEMORANDUM* WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Western District of Washington Lauren J. King, District Judge, Presiding
Submitted August 30, 2023**
Before: BENNETT, SUNG, and H.A. THOMAS, Circuit Judges.
Plaintiff-Appellant Robert Lough appeals pro se the district court’s grant of
summary judgment to the Washington State Department of Social and Health
Services, the Washington State Special Commitment Center, and various
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
JS/Panel individual state employees (collectively, “Defendants”). Lough filed claims under
42 U.S.C. § 1983 for, as relevant here, First Amendment retaliation and an alleged
violation of the Equal Protection Clause of the Fourteenth Amendment. Lough’s
claims stem from Defendants’ refusal to allow him to purchase a certain printer for
his legal needs while in civil detention. The district court denied Lough’s partial
motion for summary judgment and granted Defendants’ cross motion for summary
judgment.
We review a district court’s decision on cross motions for summary
judgment de novo. Csutoras v. Paradise High Sch., 12 F.4th 960, 965 (9th Cir.
2021). We affirm the district court’s denial of Lough’s motion for summary
judgment. With respect to the district court’s grant of Defendants’ cross motion for
summary judgment, we affirm as to the equal protection claim and reverse as to the
First Amendment retaliation claim.1
1. The district court did not err in denying Plaintiff’s motion for failure to
properly request summary judgment in accordance with Fed. R. Civ. P. 56. Even if
we construe Plaintiff’s motion as a petition for mandamus relief, as the district
court did in the alternative, we do not have jurisdiction to order mandamus relief
1 The district court raised the issue of the timeliness of Lough’s objections to the magistrate judge’s report but still addressed Lough’s objections on the merits. Defendants have not argued timeliness on appeal. We therefore focus on the merits.
2 against State employees regarding the performance of their official duties. See 28
U.S.C. § 1361.
2. The district court did not err in granting summary judgment in favor of
Defendants on Lough’s equal protection claim. Even assuming that Lough was
similarly situated to the only other resident who was allowed to purchase the
printer, Defendants had a rational basis for the difference in treatment because the
printer had been erroneously listed in the approved catalogue when the other
resident purchased it. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
(absent proof of membership in a protected class, an individual can only succeed
on an equal protection claim by demonstrating intentional, differential treatment
that was unsupported by a rational basis).
3. The district court erred in granting summary judgment in favor of
Defendants on Lough’s First Amendment retaliation claim. “Within the prison
context, a viable claim of First Amendment retaliation entails five basic elements:
(1) An assertion that a state actor took some adverse action against an inmate (2)
because of (3) that prisoner’s protected conduct, and that such action (4) chilled the
inmate’s exercise of his First Amendment rights, and (5) the action did not
reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d
559, 567–68 (9th Cir. 2005). The district court erred because a genuine issue of
material fact exists as to element (2), and the magistrate judge misapplied the
3 relevant substantive law as to element (4). See Soc. Techs. LLC v. Apple Inc., 4
F.4th 811, 816 (9th Cir. 2021) (explaining that on summary judgment, “viewing
the evidence in the light most favorable to the non-movant, [we] determine
whether there are any genuine issues of material fact and whether the district court
correctly applied the relevant substantive law”).
First, a genuine issue of material fact exists regarding whether Defendants
transferred Lough because of his First Amendment-protected activity. “A fact issue
is genuine ‘if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061
(9th Cir. 2002). While we have recognized that “uncorroborated and self-serving”
testimony alone cannot establish a “genuine issue,” id., that is not the case here.
The district court discredited as “uncorroborated and self-serving testimony”
Lough’s declaration that he was transferred because of his self-advocacy and
administrative grievances against Defendants. But unlike in Villiarimo and similar
cases, Lough’s declaration does not stand alone.
Lough points to his repeated self-advocacy and grievances against the
Defendants as evidence to support his retaliation claim. In particular, Lough
highlights his administrative grievance against Brian Shirley, which Lough filed
just a few months before his transfer. “We have held that proximity in time may
support an inference of retaliation sufficient to survive summary judgment.”
4 Anthoine v. N. Cent. Cntys. Consortium, 605 F.3d 740, 751 (9th Cir. 2010); see
also Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th Cir. 2003) (finding that adverse
action soon after a prisoner filed grievances supported an inference of retaliatory
motive).
To argue that Lough’s transfer was not retaliatory, Defendants point solely
to a competing declaration by Shirley, to whom Lough had repeatedly directed
complaints regarding his printer request and against whom Lough had filed at least
one administrative grievance in August 2019. Shirley’s declaration states that “[i]t
is my recollection that Mr. Lough had been exhibiting aggression towards his
therapist and the resident advocate” and was issued a behavior report “for yelling
and cussing at a staff member.” 2 According to Shirley, “the treatment team
concluded that Mr. Lough needed to be moved from Gingko to the Cedar West
unit,” and on January 9, 2020, the Placement Committee approved the move.
Shirley concedes that he was a member of both the treatment team and the
Placement Committee. Taking the current record evidence in the light most
favorable to Lough, a reasonable jury could conclude that Shirley, a target of
Lough’s complaints and administrative grievances, used his influential position on
2 Neither Shirley nor Defendants provide any other details or corroborating information about Lough’s alleged aggression toward his therapist and the resident advocate. The behavior report was related solely to Lough’s alleged conduct during a census count.
5 Lough’s treatment team and the Placement Committee to cause a retaliatory
transfer of Lough. Therefore, a material issue of fact precludes summary judgment.
Second, the magistrate judge misapplied the test for First Amendment
retaliation. The magistrate judge assumed that Lough’s continued litigation activity
automatically meant that Lough’s protected speech was not chilled, thus defeating
his First Amendment retaliation claim under the five elements described in Rhodes.
408 F.3d at 567–68. Not so, according to our precedent and Rhodes itself. Under
Rhodes, a plaintiff’s “allegations that his First Amendment rights were chilled,
though not necessarily silenced, is enough to perfect his claim.” Id. at 569; see also
Mendocino Env’t Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999)
(“Because it would be unjust to allow a defendant to escape liability for a First
Amendment violation merely because an unusually determined plaintiff persists in
his protected activity, we conclude that the proper inquiry asks ‘whether an
official’s acts would chill or silence a person of ordinary firmness from future First
Amendment activities.’”). We have consistently held that actual or threatened
retaliatory transfers while in state detention would chill a person of ordinary
firmness and thus sufficiently ground a First Amendment retaliation claim. See
Rhodes, 408 F.3d at 568 (collecting cases). The district court therefore erred in
assuming that Lough had to show that his speech was actually inhibited or
suppressed. We reverse and remand for proceedings consistent with this
6 disposition.3
AFFIRMED in part, REVERSED AND REMANDED in part.
3 The parties shall bear their own costs on appeal.