Smith v. Mendoza

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JASON SMITH, Case No. 19-cv-03750-BLF (PR)

8 Plaintiff, ORDER DENYING DEFENDANT'S 9 v. MOTION FOR SUMMARY JUDGMENT 10 J MENDOZA, et al., (Docket No. 52) Defendants. 11

12 13 Plaintiff, a state prisoner proceeding pro se, filed this civil action pursuant to 14 42 U.S.C. § 1983, on or about June 27, 2019. Dkt. No. 1. The Court found the complaint, 15 liberally construed, stated cognizable claims and ordered service of the action on Defendants. 16 Dkt. No. 3. On March 10, 2021, the Court granted in part and denied in part Defendants’ motion 17 for summary judgment. Dkt. No. 45. The only remaining claims were First and Eighth 18 Amendment claims against Defendant Zavala, and a First Amendment claim against Defendant 19 Perez-Pantoja. Id. at 34. Defendant Zavala was permitted to file a summary judgment motion on 20 the remaining claims against her; the claim against Defendant Perez-Pantoja was to be referred to 21 settlement proceedings after the adjudication of Defendant Zavala’s motion. Id. at 34-35. 22 On July 19, 2021, Defendant Zavala filed the instant motion for summary judgment 23 (“Motion”). Dkt. No. 52.1 Plaintiff filed an opposition, Dkt. No. 61; an affidavit and exhibits in 24

25 1 In support of the motion, Defendant Zavala provides declarations from E. Galvan, Dkt. No. 52-1 & 52-2; J. Trevino, Dkt. No. 52-3; and Defendant M. Zavala, Dkt. No. 52-4. Defendant Zavala 26 also incorporates the supplemental exhibits attached to the previous motion for summary judgment. See Dkt. No. 23. On September 10, 2021, Defendant Zavala filed a Notice of Errata 27 after learning of errors in the declarations of M. Trevino and H. Galvan and submitted amended 1 support of his opposition, Dkt. No. 62; and an appendix of additional exhibits, Dkt. No. 63. 2 Defendant Zavala filed a reply. Dkt. No. 67. 3 DISCUSSION 4 I. STATEMENT OF FACTS 5 A. Claims 6 Plaintiff claims that he was: (1) retaliated against by Defendant Zavala for filing 7 grievances against Officers Perez-Pantoja and Mendoza; and (2) Defendant Zavala conspired with 8 other officers to house Plaintiff in a cell with no windowpanes, refused to submit work orders to 9 fix the broken windows and refused to rehouse Plaintiff in a cell with intact windows. See Dkt. 10 No. 1 (“Compl.”) ¶ 53. 11 Defendant Zavala counters that Plaintiff never informed her of any issues related to the 12 broken windows in his cell and that the conditions of the cell do not rise to the level of a 13 constitutional violation. See generally, Mot. Defendant Zavala also maintains that she is entitled 14 to qualified immunity. Id. at 12. Finally, Defendant Zavala argues that Plaintiff’s request for 15 punitive damages must be dismissed.2 Id. at 13. 16 B. Factual Allegations 17 Plaintiff alleges that on September 23, 2018, he observed Officer Perez-Pantoja watching 18 television while on duty. Compl. ¶ 13. As a result, Plaintiff states that he threatened to report 19 Perez-Pantoja for violating CDCR policy. Id. ¶ 14. Plaintiff also alleges that on November 15, 20 2018, he filed an administrative appeal against Officer Mendoza for his improper handling of 21 prison mail. Compl. ¶ 18. 22 On November 15, 2018, Plaintiff was moved from X-Wing Housing Unit to C-Wing 23 Housing Unit cell #223. Id. ¶ 19. Plaintiff’s cell had four walls, one of which was heated between 24 October and April, and Plaintiff’s bunk was positioned 3.475 feet away from the wall emitting 25 heat. Dkt. No. 59-1 (“Trevino Am. Decl.”) ¶¶ 2, 4. Plaintiff contends that fourteen of twenty 26

27 2 Defendant Zavala also seeks to dismiss all claims against her for monetary damages in her 1 windowpanes were broken or missing in his new cell. Compl. ¶ 19. As a result of the missing 2 windowpanes, Plaintiff alleges that he was subjected to extreme cold, strong wind, and wet 3 weather which caused him to contract a cold and endure arthritis pain over the course of fifteen 4 months, encompassing two winters. See id. ¶¶ 22-23, 27-29, 31-36, 38-45, 48-49; see also Dkt. 5 No. 38-4, Ex. 7 (“Pl.’s Dep.”) at 129:1-6. The windows were fixed on February 18, 2020. Pl.’s 6 Dep. at 87:8-14. 7 Plaintiff states that on November 16, 2018, he asked Officer Glaze for an emergency work 8 order to be submitted for the missing windowpanes to which Officer Glaze stated, “602 it, that’s 9 not my problem.” Compl. ¶ 21. Later that day, Plaintiff contends that he requested from 10 Defendant Zavala and Officer Aguirre to submit an emergency work order to have the 11 windowpanes replaced, or to move Plaintiff to a cell with intact windows, but Defendant Zavala 12 and Officer Aguirre both refused, stating: “you don’t have anything coming in this Unit because 13 you already went complaining to Sgt. R. []Glaze and J. []Mendoza got you that cell”. Id. Plaintiff 14 contends that Defendant Zavala then stated: “J. []Mendoza asked for that cell for you!” Id. 15 Defendant Zavala counters that she did not converse with Plaintiff on November 16, 2018, 16 or otherwise, and was not aware of any work order requests by Plaintiff pertaining to broken 17 windows. Dkt. No. 52-4 (“Zavala Decl.”) ¶¶ 4-5. Defendant Zavala states that had Plaintiff made 18 such a request, she would have filled out a CDCR 2184 form and taken it to her supervising 19 sergeant. Id. 20 Plaintiff contends that on November 29, 2018, he attempted to place a sheet over the 21 window to mitigate the cold temperature but was prevented from doing so by Defendant Zavala 22 under threat of a Rules Violation Report. Compl. ¶ 24. 23 Plaintiff alleges that on December 1, 2018, Defendant Zavala refused to provide him with 24 additional blankets or sheets to mitigate the cold and wet weather. Id. ¶ 25. Defendant Zavala 25 counters that she did not work on that day. Zavala Decl. ¶ 6. 26 Plaintiff claims that on January 2, 2019, he requested to have an emergency work order 27 submitted, or to be rehoused, to which Defendant Zavala again refused, stating: “like I told you on 1 from me!” Compl. ¶ 30. Defendant Zavala counters that she did not have a conversation with 2 Plaintiff that day and did not receive a work order request from Plaintiff to fix missing 3 windowpanes. Zavala Decl. ¶ 7. 4 Plaintiff alleges that on January 18, 2019, he asked Defendant Zavala to move him to 5 vacant cell #115, but Defendant Zavala refused. Compl. ¶ 35. Defendant Zavala responds that 6 Plaintiff did not approach her and ask to be rehoused on that date. Zavala Decl. ¶ 8. 7 Plaintiff contends that on January 24, 2019, Plaintiff again requested to be rehoused, but 8 Defendant Zavala refused. Id. ¶ 37. Defendant Zavala responds that Plaintiff did not approach her 9 and ask to be rehoused on that date. Zavala Decl. ¶ 9. 10 Plaintiff submitted an administrative appeal on February 10, 2019, complaining that his 11 cell had broken windows and that Defendant Zavala refused to rehouse Plaintiff. See Compl., Ex. 12 C. 13 Defendant Zavala maintains that Plaintiff never informed her that he was being exposed to 14 extreme cold and inclement weather because of broken windowpanes. Zavala Decl. ¶ 10. 15 Defendant Zavala also maintains that she was unaware of any grievances filed by Plaintiff against 16 Perez-Pantoja and Mendoza and that she does not have access to administrative grievances filed 17 by inmates at CTF. Id. ¶ 11. 18 II. SUMMARY JUDGMENT STANDARD 19 Summary judgment is proper where the pleadings, discovery and affidavits show that there 20 is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 21 law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment “against a party who fails to 22 make a showing sufficient to establish the existence of an element essential to that party’s case, 23 and on which that party will bear the burden of proof at trial . . . since a complete failure of proof 24 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 25 immaterial.” Celotex Corp. v. Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might 26 affect the outcome of the lawsuit under governing law, and a dispute about such a material fact is 27 genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving 1 bears the initial burden of identifying those portions of the record which demonstrate the absence 2 of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 323. Where the moving party 3 will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no 4 reasonable trier of fact could find other than for the moving party. But on an issue for which the 5 opposing party will have the burden of proof at trial, the moving party need only point out “that 6 there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. If the 7 evidence in opposition to the motion is merely colorable, or is not significantly probative, 8 summary judgment may be granted. See Liberty Lobby, 477 U.S. at 249-50. 9 The burden then shifts to the nonmoving party to “go beyond the pleadings and by her own 10 affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate 11 specific facts showing that there is a genuine issue for trial.’” Celotex Corp., 477 U.S. at 324 12 (citations omitted). If the nonmoving party fails to make this showing, “the moving party is 13 entitled to judgment as a matter of law.” Id. at 323. The Court’s function on a summary judgment 14 motion is not to make credibility determinations or weigh conflicting evidence with respect to a 15 material fact. See T.W. Elec. Serv., Inc. V. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 16 Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party, and 17 the inferences to be drawn from the facts must be viewed in a light most favorable to the 18 nonmoving party. See id. at 631. It is not the task of the district court to scour the record in search 19 of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The 20 nonmoving party has the burden of identifying with reasonable particularity the evidence that 21 precludes summary judgment. Id. If the nonmoving party fails to do so, the district court may 22 properly grant summary judgment in favor of the moving party. See id.; see, e.g., Carmen v. S.F. 23 Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001). 24 III. ANALYSIS 25 Defendant Zavala argues that Plaintiff’s First and Eighth Amendment claims fail on the 26 merits and that she is entitled to qualified immunity.

27 A. Summary Judgment is Denied as to the Eighth Amendment Claim Against 1 i. General Standard 2 The Constitution does not mandate comfortable prisons, but neither does it permit 3 inhumane ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a prisoner 4 receives in prison and the conditions under which he is confined are subject to scrutiny under the 5 Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993). A prison official violates 6 the Eighth Amendment when two requirements are met: (1) the deprivation alleged must be, 7 objectively, sufficiently serious (objective prong), Farmer, 511 U.S. at 834 (citing Wilson v. 8 Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison official possesses a sufficiently culpable state 9 of mind (subjective prong), id. (citing Wilson, 501 U.S. at 297). 10 ii. Temperature in Cell: Objective Prong 11 The “Eighth Amendment guarantees adequate heating” but not necessarily a “comfortable” 12 temperature. See Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996); Wilson, 501 U.S. at 304 13 (“low cell temperature at night combined with a failure to issue blankets” could constitute an 14 Eighth Amendment violation). “One measure of an inadequate, as opposed to merely 15 uncomfortable, temperature is that it poses ‘a substantial risk of serious harm.’” Graves v. Arpaio, 16 623 F.3d 1043, 1049 (9th Cir. 2010) (quoting Farmer, 511 U.S. at 834). Exposure to freezing or 17 near-freezing temperatures, coupled with other deprivations, may subject an inmate to a 18 substantial risk of serious harm. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) 19 (reversing grant of summary judgment where inmates spent as many as seventeen hours outside in 20 subfreezing temperatures with the clothes on their backs and disputed access to blankets and 21 coats); Gillespie v. Civiletti, 629 F.2d 637, 639, 642 (9th Cir. 1980) (complaints of near freezing 22 temperatures, along with other deprivations, state a claim). “Whether an inmate’s exposure to 23 cold temperatures constitutes an Eighth Amendment violation depends on the severity of the cold, 24 the duration of the prisoner’s exposure, the presence of an alternative means to warmth (i.e., a 25 blanket or jacket), the efficacy of that alternative, and the presence of ‘other uncomfortable 26 conditions[.]’” Micenheimer v. Soto, No. CV 13-3853-CJC JEM, 2013 WL 5217467, at *5 (C.D. 27 Cal. Sept. 16, 2013) (quoting Dixon v. Godinez, 114 F.3d 640, 644 (7th Cir. 1997)). 1 between October and April with one of the four cell walls providing heat to the cell. Defendant 2 also relies on Plaintiff’s deposition testimony in which he stated that he received two blankets, did 3 not request to have the heat in his cell turned up, and the broken windows were taped. See Pl.’s 4 Dep. at 105:19-25, 125:21-127:7; see also Dkt. No. 23-5, Ex. B (“Papan Decl.”). In opposition, Plaintiff provides an affidavit swearing that he was prevented from covering 5 the broken windowpanes and was only permitted to place white tape over the windowpanes in 6 October 2019, after the filing of this action. See Dkt. No. 62 (“Pl.’s Aff.”) ¶ 19. He also 7 maintains that he could not request for the heat to be turned up because it would have exposed the 8 adjoining cell to extreme heat, and that of his two blankets, one was used to cover himself and the 9 other was used to cover his torn mattress. See id. at ¶¶ 9, 18; see also Pl.’s Dep. at 105:19-25. 10 Plaintiff also provides an hourly log of the outside air temperature during the months in which his 11 windowpanes were broken, which shows that, at times, the temperatures dipped below 40 degrees 12 Fahrenheit. See Suppl. Ex. 2, Dkt. No. 63. During his deposition, Plaintiff alleged that out of the 13 twenty windowpanes, seven were completely missing, two windowpanes were broken, and the 14 large middle windowpane, consisting of six windows, was completely gone. Pl.’s Dep. at 91:25- 15 92:15. Plaintiff also explained that the tape — which he purchased from other inmates and placed 16 on the windows himself — constantly fell off due to wind and rain. Id. at 90:20-91:2. Plaintiff 17 alleges that the exposure to extreme cold caused him to become sick with a persistent cold, and 18 exacerbated his arthritis pain, as evidenced by his health care service requests and medical records. 19 See Suppl. Ex. 1, Dkt. No. 63. 20 Plaintiff’s evidence is sufficient to permit a reasonable jury to conclude that the 21 temperatures in Plaintiff’s cell were frequently near freezing. See Gillespie, 629 F.2d at 642. 22 Furthermore, Plaintiff contends that these conditions were lengthy because they persisted for 23 fifteen months, encompassing two winters. See Johnson, 217 F.3d at 732; see also Dixon, 114 24 F.3d at 643 (“[I]t is not just the severity of the cold, but the duration of the condition, which 25 determines whether the conditions of confinement are unconstitutional.”). Therefore, even if there 26 was some amount of heating and two blankets in Plaintiff’s cell, a reasonable juror could still 27 conclude that Plaintiff’s longstanding exposure to cold temperatures as a result of the broken 1 01771-AWI, 2012 WL 2116351, at *7 (E.D. Cal. June 11, 2012), report and recommendation 2 adopted, No. 1:09-CV-01771-AWI, 2012 WL 3201689 (E.D. Cal. Aug. 3, 2012) (“in-cell 3 exposure to “ice cold air” for over six months could rise to the level of a serious harm within the 4 meaning of the Eighth Amendment.”); Lopez v. Adams, No. 1:07-CV-00808-LJO, 2011 WL 219932, at *5 (E.D. Cal. Jan. 21, 2011), report and recommendation adopted, No. 1:07-CV- 5 00808-LJO, 2011 WL 976465 (E.D. Cal. Mar. 17, 2011) (placement of inmate in cold cell without 6 mattress, linens, or clothing, combined with temperatures “in the thirties” could violate Eighth 7 Amendment.”). 8 Defendant argues that Plaintiff’s failure to request to have the heat in his cell turned up 9 shows that he did not face a substantial risk of serious harm. Whether the failure to raise the issue 10 of his heat undermines Plaintiff’s credibility is a determination for the jury that cannot be made on 11 summary judgment. See T.W. Elec. Serv., Inc., 809 F.2d at 630. Further, while Plaintiff may not 12 have filed a 22 Form requesting that the heat be turned up, Plaintiff provides evidence that he 13 submitted at least one administrative appeal complaining about the extreme cold. See Compl., Ex. 14 C. 15 Defendant also argues that Plaintiff’s cell could not have been excessively cold because the 16 heating in C-Wing was sufficient to heat Plaintiff’s entire cell. See Trevino Am. Decl. ¶ 4. 17 However, Plaintiff claims his cell was still extremely cold because the heating was insufficient to 18 overcome the excessively cold air coming in through the many broken windowpanes. See Lopez, 19 2011 WL 219932, at *5 (“[F]eelings of cold can be experienced through one’s senses.”) 20 Finally, while the evidence shows that Plaintiff received two blankets, Plaintiff maintains 21 the blankets were insufficient to protect him from the extreme cold, and that when he requested 22 additional blankets or sheets, he was denied. Whether the blankets were sufficient to overcome 23 the cold is a determination that must be left for the jury, to decide the extent to which plaintiff had 24 alternative means of warmth and whether that was sufficient to overcome the cold. See 25 Micenheimer, 2013 WL 5217467, at *5 (citing Dixon, 114 F.3d at 644 ). 26 For these reasons, Plaintiff has satisfied the first prong of a conditions of confinement 27 claim. 1 To establish his conditions-of-confinement claim, Plaintiff must also show that Defendant 2 Zavala knew of and disregarded an excessive risk to Plaintiff’s health or safety. Farmer, 511 U.S. 3 at 837. “[T]he official must both be aware of facts from which the inference could be drawn that a 4 substantial risk of serious harm exists, and he must also draw the inference.” Id. “Whether an official possessed such knowledge ‘is a question of fact subject to demonstration in the usual 5 ways, including inference from circumstantial evidence ....’” Johnson, 217 F.3d at 734 (quoting 6 Farmer, 511 U.S. at 842). 7 Here, a reasonable juror could conclude that Defendant Zavala knew of the longstanding 8 cold conditions in Plaintiff’s cell and disregarded them. It is undisputed that Defendant Zavala 9 worked on C-Wing where Plaintiff was housed, and that her duties required her to make regular 10 cell bar checks for the purpose of observing any structural damage and to request work repairs. 11 See Pl.’s Opp., Ex. J, Dkt. No. 62 at 56. Plaintiff also provides an affidavit in which he alleges 12 that he made repeated requests to Defendant Zavala asking to be rehoused or to have the windows 13 repaired due to the extreme cold. Pl.’s Aff. ¶¶ 10-17. While Defendant Zavala denies those 14 allegations, claiming that she never observed, spoke with, or refused any of Plaintiff’s requests, 15 that denial raises a disputed issue of material fact as to whether Defendant Zavala was aware of 16 the conditions in Plaintiff’s cell and his repeated requests for the problem to be resolved. The 17 Court cannot grant summary judgment where there is a dispute of material fact. Nor can the Court 18 resolve the dispute herein; courts are not permitted to make credibility determinations or weigh 19 conflicting evidence at this stage of litigation. See T.W. Elec. Serv., 809 F.2d at 630. Thus, 20 viewing the evidence in Plaintiff’s favor, a reasonable jury could find that Defendant Zavala knew 21 of and disregarded the allegedly cold conditions in Plaintiff’s cell. For these reasons, Plaintiff has 22 satisfied the second prong of a conditions of confinement claim.

23 B. Summary Judgment is Denied as to the First Amendment Claim Against 24 Defendant Zavala Plaintiff claims that Defendant Zavala retaliated against him for filing grievances against 25 Officers Perez-Pantoja and Mendoza by failing to respond to Plaintiff’s requests to be rehoused or 26 submit work orders to fix the broken windows. For the reasons below, Defendant Zavala’s 27 1 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 2 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 3 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 4 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) (footnote omitted). 5 Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under § 6 1983 for retaliation must allege that he was retaliated against for exercising his constitutional 7 rights and that the retaliatory action did not advance legitimate penological goals, such as 8 preserving institutional order and discipline); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) 9 (per curiam) (same); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (contention that actions 10 “arbitrary and capricious” sufficient to allege retaliation). The prisoner must show that the type of 11 activity he was engaged in was constitutionally protected, that the protected conduct was a 12 substantial or motivating factor for the alleged retaliatory action, and that the retaliatory action 13 advanced no legitimate penological interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 14 1997) (inferring retaliatory motive from circumstantial evidence). Retaliatory motive may be 15 shown by the timing of the allegedly retaliatory act and inconsistency with previous actions, as 16 well as direct evidence. Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2003). However, mere 17 speculation that defendants acted out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 18 904 (9th Cir. 2014) (citing cases) (affirming grant of summary judgment where no evidence that 19 defendants knew about plaintiff’s prior lawsuit, or that defendants’ disparaging remarks were 20 made in reference to prior lawsuit). 21 The prisoner also bears the burden of pleading and proving absence of legitimate 22 correctional goals for the conduct of which he complains. Pratt, 65 F.3d at 806. At that point, the 23 burden shifts to the prison official to show, by a preponderance of the evidence, that the retaliatory 24 action was narrowly tailored to serve a legitimate penological purpose. See Schroeder v. 25 McDonald, 55 F.3d 454, 461-62 (9th Cir. 1995) (defendants had qualified immunity for their 26 decision to transfer prisoner to preserve internal order and discipline and maintain institutional 27 security). 1 the First Amendment retaliation claim. See generally, Mot. Accordingly, the Court will only 2 discuss the first and second elements. 3 a. First element 4 Relying on the same arguments raised above, Defendant Zavala contends that she did not commit an adverse action against Plaintiff because he had two blankets, tape to cover his windows 5 and heat in his cell. See Mot. at 11. However, Plaintiff provides evidence that the blankets, tape, 6 and heat were insufficient to overcome the extreme cold which persisted for 15 months. See 7 generally, Compl. As previously explained, because both Plaintiff and Defendant Zavala provide 8 evidence to support their arguments, there is a disputed fact as to whether Plaintiff was subject to 9 an adverse action. The Court cannot grant summary judgment where there is a dispute of material 10 fact. See T.W. Elec. Serv., supra, 809 F.2d at 630. 11 Accordingly, the Court must deny Defendant Zavala’s summary judgment motion to the 12 extent it is based on Plaintiff’s failure to fulfill the first element of a retaliation claim. 13 b. Second element 14 Regarding the second element of a relation claim, a plaintiff must establish that retaliatory 15 animus was the “but-for” cause of the plaintiff’s injury, “meaning that the adverse action . . . 16 would not have been taken absent the retaliatory motive.” Nieves v. Bartlett, 139 S. Ct. 1715, 17 1722 (2019). To show this element on a motion for summary judgment, a plaintiff “need only put 18 forth evidence of retaliatory motive, that, taken in the light most favorable to him, presents a 19 genuine issue of material fact as to [the defendant’s] intent.” Brodheim, 584 F.3d at 1271 (citation 20 omitted). 21 Defendant Zavala argues that she was unaware of Plaintiff’s grievances against Officers 22 Perez-Pantoja and Mendoza and so the grievances could not have motivated Defendant Zavala’s 23 refusal to respond to Plaintiff’s requests regarding the broken windowpanes. Defendant Zavala 24 asserts that she does not have access to inmate grievances against other officers while they are 25 pending. Zavala Decl., ¶ 11. She also asserts that she never spoke with Officers Perez-Pantoja 26 and Mendoza about any administrative grievances and was never made aware of Plaintiff’s 27 grievances. Id. Finally, Defendant Zavala states that she and Officer Mendoza work different 1 In his verified complaint, however, Plaintiff alleges that he was transferred to the cell with 2 broken windows on November 15, the same day he filed a grievance against Officer Mendoza, and 3 that the following day Defendant Zavala stated: “you don’t have anything coming in this Unit 4 because you already went complaining to Sgt. R. []Glaze and J. []Mendoza got you that cell”, in response to his request to be rehoused or have a work order submitted.3 Compl., ¶¶ 18-19, 21. 5 Plaintiff alleges that Defendant Zavala also stated: “J. []Mendoza asked for that cell for you!” Id. 6 The Court finds that Defendant Zavala’s statements, taken in the light most favorable to 7 Plaintiff’s claim of retaliation, presents a genuine dispute of material fact as to Defendant Zavala’s 8 intent in allegedly failing to respond to plaintiff’s complaints regarding the broken windowpanes. 9 See Brodheim, 584 F.3d at 1271. Furthermore, the proximity between Plaintiff’s grievances, his 10 transfer to a new cell, and Defendant Zavala’s statements, provide additional evidence of 11 Defendant Zavala’s retaliatory intent. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) 12 (“[T]iming can properly be considered circumstantial evidence of retaliatory intent.”). 13 The parties thus dispute the material fact of whether Defendant Zavala’s actions were 14 taken in response to Plaintiff’s filing of a grievance against Officer Mendoza. The Court cannot 15 resolve this dispute. See T.W. Elec. Serv., 809 F.2d at 630. Accordingly, the Court must deny 16 Defendant Zavala’s summary judgment motion to the extent it is based on Plaintiff’s failure to 17 fulfill the second element of a retaliation claim. 18 C. Qualified Immunity 19 Defendant Zavala argues that Plaintiff’s First and Eighth Amendment claims fail because 20 Defendant Zavala is entitled to qualified immunity. The Court disagrees. The defense of qualified 21 immunity protects “government officials . . . from liability for civil damages insofar as their 22 conduct does not violate clearly established statutory or constitutional rights of which a reasonable 23 person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The rule of 24 qualified immunity protects “‘all but the plainly incompetent or those who knowingly violate the 25

26 3 A verified complaint may be used as an opposing affidavit, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Keenan v. Hall, 83 F.3d 1083, 27 1090 n.1 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998) (treating allegations in 1 law’”; defendants can have a reasonable, but mistaken, belief about the facts or about what the law 2 requires in any given situation. Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Malley v. 3 Briggs, 475 U.S. 335, 341 (1986)). “Therefore, regardless of whether the constitutional violation 4 occurred, the [official] should prevail if the right asserted by the plaintiff was not ‘clearly established’ or the [official] could have reasonably believed that his particular conduct was 5 lawful.” Romero v. Kitsap Cnty., 931 F.2d 624, 627 (9th Cir. 1991). A court considering a claim 6 of qualified immunity must determine whether the plaintiff has alleged the deprivation of an actual 7 constitutional right and whether such right was clearly established such that it would be clear to a 8 reasonable officer that his conduct was unlawful in the situation he confronted. See Pearson v. 9 Callahan, 555 U.S. 223 (2009) (overruling the sequence of the two-part test that required 10 determination of a deprivation first and then whether such right was clearly established, as 11 required by Saucier, 533 U.S. at 194); Henry A. v. Willden, 678 F.3d 991, 1000 (9th Cir. 2012) 12 (qualified immunity analysis requiring (1) determining the contours of the clearly established right 13 at the time of the challenged conduct and (2) examining whether a reasonable official would have 14 understood that the challenged conduct violated such right). 15 Here, Defendant Zavala’s qualified immunity arguments fail for the same reasons cited 16 above. It was clearly established at the time of the relevant events that adverse action taken 17 against an inmate for his protected conduct without a legitimate correctional goal violates the First 18 Amendment. Rhodes, 408 F.3d 567-68. It was also clearly established at the time of the relevant 19 events that prisoners have a right to adequate heating in their cells, see Keenan, 83 F.3d at 1091; 20 Graves, 623 F.3d at 1049, and that prison officials may display deliberate indifference if they 21 know of longstanding deprivations and fail to address them, see Farmer, 511 U.S. at 842 (stating 22 that, to establish a claim for deliberate indifference, an inmate may present evidence showing that 23 a substantial risk of harm was “longstanding” and that the prison official was “exposed to 24 information concerning the risk and thus must have known about it”). 25 Defendant Zavala’s entitlement to qualified immunity requires the Court to accept her 26 version of the relevant events — that the heat, blankets, and tape provided to Plaintiff were 27 sufficient to overcome the cold in plaintiff’s cell — rather than Plaintiff’s version of events — that 1 Because resolution of these factual disputes is critical to a proper determination of Defendant 2 Zavala’s entitlement to qualified immunity, summary judgment on qualified immunity is 3 inappropriate. 4 For these reasons, Defendant Zavala is not entitled to summary judgment on Plaintiff’s First and Eight Amendment claims based on qualified immunity. 5 D. Punitive Damages 6 Defendant Zavala also argues that she is entitled to summary judgment on Plaintiff’s claim 7 for punitive damages because there is no evidence that Defendant acted with the necessary evil 8 motive or intent or the necessary reckless or callous indifference to the federally protected rights 9 of others. Mot. at 13. This argument requires the Court to accept Defendant Zavala’s version of 10 the relevant events. Because there are factual disputes surrounding Plaintiff’s claim of excessive 11 cold and his requests for it to be remedied, Defendant’s motion for summary judgment with 12 respect to punitive damages is DENIED. 13 CONCLUSION 14 For the reasons stated above, the Court orders as follows: 15 1. Defendant Zavala’s motion for summary judgment is DENIED. 16 2. The remaining claims in this case, including a First and Eighth Amendment claim 17 against Defendant Zavala, and a First Amendment claim against Defendant Perez- 18 Pantoja, are REFERRED to Magistrate Judge Robert Illman for settlement proceedings 19 pursuant to the Pro Se Prisoner Mediation Program. Such proceedings shall take place 20 within 120 days of the date this order is filed, or as soon thereafter as Magistrate Judge 21 Illman’s calendar will permit. Magistrate Judge Illman shall coordinate a place, time 22 and date for one or more settlement conferences with all interested parties and/or their 23 representatives and, within fifteen days of the conclusion of all settlement proceedings, 24 shall file with the Court a report thereon. 25 3. If the case does not settle, the Court will enter a new scheduling order for further 26 proceedings. 27 This order terminates ECF No. 52. 1 IT IS SO ORDERED. 2 || Dated: February 22, 2022 3 4 BETH LABSON FREEMAN 5 United States District Judge 6 7 8 9 10 1]

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