Frost v. Ducart ( 2020 )

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SHAWN KEVIN FROST, 4 Case No. 17-cv-07228-YGR (PR) Plaintiff, 5 ORDER GRANTING DEFENDANTS’ v. MOTION FOR SUMMARY 6 JUDGMENT D. WILCOX, et al., 7 Defendants. 8 9 I. INTRODUCTION 10 Plaintiff Shawn Kevin Frost, a state prisoner currently incarcerated at California State 11 Prison-Sacramento, has filed a pro se civil rights action under 42 U.S.C. § 1983. The operative 12 complaint in this action is the amended complaint, in which Plaintiff alleged constitutional rights 13 violations at Pelican Bay State Prison (“PBSP” or “Pelican Bay”) where he was previously 14 incarcerated. Dkt. 10 at 3-7.1 In his amended complaint, Plaintiff has named the following 15 Defendants at PBSP and the California Department of Corrections and Rehabilitation (“CDCR”): 16 Warden Clark E. Ducart; Chief Deputy Warden D. W. Bradbury; Associate Warden C. Olsen; 17 Captain T. S. Buchanan; Lieutenant D. Higgerson; Sergeant J. Schrag; Correctional Officer T. 18 Toussaint; Correctional Counselor II D. Wilcox; Office of Appeals (“OOA”) Chief M. Voong; and 19 OOA Captain M. Hodges. Id. at 2. Plaintiff has sought declaratory relief and monetary damages. 20 Id. at 3, 7. Specifically, Plaintiff’s claims stemmed from the named Defendants’ alleged 21 retaliation for his filing a CDCR Form 602 inmate appeal (“602 appeal” or “grievance”). 22 In an Order dated January 16, 2019, the Court dismissed Plaintiff’s supervisory liability 23 claim against Defendant Ducart without prejudice, and it found Plaintiff’s First Amendment 24 claims against the remaining Defendants (hereinafter “Defendants”) to be cognizable. 25 The parties are presently before the Court on Defendants’ Motion for Summary Judgment. 26 Dkt. 30. Plaintiff has filed an opposition to Defendants’ motion, and Defendants have filed a 27 1 reply. Dkts. 35, 38. Plaintiff has also filed a document entitled, “Plaintiff’s Request for 2 Admissions/Consideration of Addendum/Request for Counsel.” Dkt. 40. 3 Having read and considered the papers submitted and being fully informed, the Court 4 hereby GRANTS Defendants’ motion for summary judgment and DENIES any pending motions 5 as moot. 6 II. FACTUAL BACKGROUND2 7 A. The Parties 8 At the time of the events set forth in his amended complaint, Plaintiff was housed in 9 PBSP. Dkt. 10 at 3. Defendants Schrag, Wilcox, Buchanan, Bradbury, Olson, Higgerson, and 10 Toussaint are either current or former PBSP employees. Schrag Decl. at 1:22-23; Wilcox Decl. at 11 1:23-24; Buchanan Decl. at 1:22-23; Bradbury Decl. at 1:24-25; Olson Decl. at 1:23-24; 12 Higgerson Decl. at 1:22-24; Toussaint Decl. at 1:24-25. Defendants Hodges and Voong are 13 employees at the CDCR’s OOA in Sacramento. Hodges Decl. at 1:25-27; Voong Decl. at 1:21-23. 14 B. Plaintiff’s Version 15 The following background relating to Plaintiff’s retaliation claims is taken from the 16 Court’s January 16, 2019 Order: 17 Plaintiff alleges that Defendants, officials and employees of PBSP and the CDCR violated his constitutional rights. His claims arise 18 from their alleged retaliation for his filing an appeal, log no. PBSP- 16-01431, on July 6, 2016 naming several supervisorial and custody 19 staff as co-conspirators of malfeasance. Plaintiff alleges that three days later, on July 9, 2016, he was rehoused in a cell “which lacked a 20 seat/stool, no desk or table to eat meals [or] write, no electrical power to use his approved personal property . . . and a broken sink . . . .” 21 Dkt. 10 at 3. It seems Plaintiff was placed in such inadequate housing for approximately 5 months or until around November 2016 before 22 he was “moved back to adequate and appropriate/normal general population housing.” Id. at 5-6. According to the amended 23 24 2 This Order contains some acronyms or abbreviations. Here, in one place, they are: 25 602 appeal CDCR Form 602 inmate appeal CDCR California Department of Corrections and Rehabilitation 26 Form 22 CDCR Form 22 IHAs Inmate Housing Assignments 27 OOA Office of Appeals complaint, Plaintiff filed another appeal, log no PBSP-16-01584, in 1 which he raised his claims in this action. Plaintiff’s specific claims are as follows: (1) Defendants Schrag, Wilcox, and Buchanan 2 retaliated against Plaintiff in violation of his First Amendment rights; and (2) Defendants Olsen, Bradbury, Higgerson, Hodges, Voong, and 3 Toussaint were aware of the unconstitutional actions but failed to take correct action by denying his related grievance, also in violation of 4 his First Amendment rights. 5 Dkt. 11 at 2. To elaborate, Plaintiff’s retaliation claims are as follows: (1) against Defendants 6 Schrag, Wilcox, and Buchanan for their part in placing Plaintiff in cell A2-105 on July 9, 2016 as 7 punishment for filing PBSP-16-01431; (2) against Defendant Toussaint for refusing to process 8 Plaintiff’s July 17, 2016 CDCR Form 22 (“Form 22”), “Inmate/Parolee Request for Interview, 9 Item or Service,” directly to the warden; and (3) against Defendants Olson, Bradbury, Higgerson, 10 Hodges, and Voong for being aware of the aforementioned alleged retaliatory actions by others 11 but failing to take corrective action when they denied his grievances. Dkt. 10 at 3-7. 12 C. Defendants’ Version 13 1. Cell Assignments With Inmates L. J. Perry and B. J. Ford in Cell A8-102 14 “[I]nmate housing assignments are made on the basis of available documentation and 15 individual case factors.” Cal. Code. Regs., tit. 15, § 3269.1. Individual case factors include, but 16 are not limited to the inmate’s history of racial violence, their commitment offense, their 17 classification score, their custody level, and their disciplinary history. Id. “Inmates shall accept 18 Inmate Housing Assignments (“IHAs”) as directed by staff. It is the expectation that all inmates 19 double cell[.] If staff determine an inmate is suitable for double-celling [. . .] that inmate shall 20 accept the housing assignment or be subject to disciplinary action for refusing. IHAs shall be 21 made on the basis of available documentation and individual case factors. Inmates are not entitled 22 to single cell assignment, housing location of choice, or to a cell mate of their choice.” Id., § 3269 23 (brackets added). 24 Consistent with the above, at the time of these alleged events, Plaintiff was cleared for 25 double-celling. Wilcox Decl. at 3:19-21, Ex. A [Chronos of Plaintiff’s Classification Hearings 26 Chair by D. Wilcox]. At the time of these events, Defendant Schrag was a correctional sergeant, 27 Defendant Buchanan was acting as a correctional captain, and Defendant Wilcox was correctional 1 at 1:22-25; Wilcox Decl. at 1:23-25. On June 8, 2016, Plaintiff was housed in Cell A8-102, and 2 his cellmate was Inmate L. J. Perry. Dewitt Decl., Ex. A [June 8, 2016 Bed Request Batch for 3 Inmate Perry]; Schrag Decl., Ex. A [June 8, 2016 Bed Request Batch for Inmate Perry]. Inmate 4 Perry’s move had been requested by D. Martinez, and that move was reviewed and approved by 5 Sergeant E. Enos. Id. On or about June 15, 2016, inmate B. J. Ford moved into cell A8-102, and 6 became Plaintiff’s new cellmate. Dewitt Decl., Ex. A [June 8, 2016 Bed Request Batch for Inmate 7 Ford]; Schrag Decl., Ex. A [June 8, 2016 Bed Request Batch for Inmate Ford]. Inmate Ford’s 8 move had been requested by M. Patsel, and that move was reviewed and approved by J. Preston. 9 Id. Plaintiff had no documented enemy concerns with either Inmate Perry or Inmate Ford. Dewitt 10 Decl. at 2:17-20. Defendants Schrag, Buchanan, and Wilcox had no personal involvement in 11 deciding either of these cellmate assignments. Schrag Decl. at 2:15-20, Ex. A; Dewitt Decl., Ex. 12 A; Buchanan Decl. at 3:21-22; Wilcox Decl. at 2:19-26, Ex. A [Chronos of Plaintiff’s 13 Classification Hearings Chair by D. Wilcox]. D. Martinez, E. Enos, M. Patsel, and J. Preston are 14 correctional staff who not parties to this action. 15 2. Plaintiff’s Cell Move to Cell A2-105 During Facility A’s Bed Compactions 16 On or about the time of July 1, 2016, Pelican Bay was experiencing an influx of inmate 17 transfers that increased the inmate population in Facility A. Schrag Decl. at 2:24-28; Buchanan 18 Decl. at 3:10-17. In order to place Facility A’s inmates into available bed space, bed compactions 19 were conducted by correctional staff. Id. Cell moves are conducted by correctional staff 20 submitting bed batch requests of those inmates that need to be moved. Dewitt Decl. at 2:3-8; 21 Schrag Decl. at 3:1-8. Bed requests are entered into Pelican Bay’s Strategic Offender 22 Management System (“SOMS”) by correctional staff, and those requests were reviewed and 23 approved by correctional sergeants or other supervisorial staff in SOMS. Id. From July 1, 2016 to 24 July 9, 2016, Facility A processed an estimated 126 inmate moves to compact available bed 25 spaces. Schrag Decl. at 2:28-3:2. During this time, in an effort to appropriately house all inmates 26 at Pelican Bay, all vacant cells had to be used, regardless of the functionality of each individual 27 cell’s electrical outlets. Buchanan Decl., Ex. B [Buchanan’s Letter Response to Plaintiff’s Form 1 During the compactions in July 2016, correctional staff attempted to assign a new cellmate 2 named Inmate Anthony J. Davis to Plaintiff in Cell A8-102 on or about July 8, 2016. Schrag 3 Decl. at 2:28-3:2; Chen Decl., Ex. A [Frost Depo.] 61:19-25. On July 9, 2016, Officer J. Young, 4 requested that Plaintiff be bed-swapped with Inmate Oliver in A2-105. Dewitt Decl., Ex. B [July 5 9, 2016 Bed Request Batch]; Schrag Decl. at 3:14-17, Ex. B [July 9, 2016 Bed Request Batch]. 6 The request was reviewed and approved by Sergeant J. Reynoso. Id. The Court notes that neither 7 Officer Young nor Sergeant Reynoso are parties in this case. 8 Overrides in SOMS are required if correctional staff request to move an inmate to a bed 9 inconsistent with their housing factors. Schrag Decl. at 3:10-13; Dewitt Decl. at 2:8-11, 2:23-24. 10 No override was necessary to place Plaintiff into that cell, since it matched his housing factors. Id. 11 More specifically, at the time of these events, Cell A2-105 was designated to house general 12 population inmates, which matched Plaintiff’s designated level of programming.3 Schrag Decl. at 13 4:1-5; Wilcox Decl. at 3:10-16; Buchanan Decl. at 3:23-26; DeWitt Decl. at 2:23-25; Chen Decl., 14 Ex. A [Frost Depo.] at 48:7-10. Plaintiff received the same level of access to programs, services, 15 and activities as he did prior to that cell move. Higgerson Decl. at 4:2-3. During Plaintiff’s period 16 of placement in A2-105, Plaintiff kept his appliances and was accommodated by their use in 17 dayroom.4 Buchanan Decl. at 4:4-5; Chen Decl., Ex. A [Frost Depo.] at 53:16-17. 18 Defendants Schrag, Buchanan, and Wilcox conducted no personal actions in requesting, 19 reviewing, or approving Plaintiff’s July 8, 2016 move to A2-105. Schrag Decl. at 3:14-15; 20 Buchanan Decl. at 3:19-20; Wilcox Decl. at 2:22-26. In any case, Defendant Schrag did not 21 instruct any correctional staff to destroy Plaintiff’s property if he did not comply with the move to 22 A2-105. Schrag Decl. at 3:19-23. Plaintiff was not present himself to observe any alleged 23 instruction from Defendant Schrag to prison staff. Chen Decl., Ex. A [Frost Depo.] at 56:3-7. 24 3. Plaintiff’s Attempt to Submit Form 22 as Confidential Legal Mail 25 “Inmates and parolees may request interviews with staff and/or request items and services 26 3 Plaintiff “disputes that cell A2-105 is a normal general population cell.” Dkt. 35 at 11. 27 1 via a written request process. The objective of timely resolution of routine matters through an 2 effective and non-conflicting communications process shall be facilitated in [title 15, article 8.5][.] 3 Departmental staff shall attempt to resolve inmate and parolee issues expeditiously.” Cal. Code. 4 Regs., tit. 15, § 3086(a) (2016). “When seeking response to a written request for an interview, 5 item, or service, the inmate or parolee shall complete the [Form 22] [and deliver] or mail via 6 institutional mail the completed form to any staff member who is able to respond to the issue.” 7 Cal. Code. Regs., tit. 15, § 3086(e) (2016). “[The] written request process does not stay the time 8 constraints for filing an appeal, the inmate or parolee is not precluded from filing an appeal on the 9 same issue prior to receiving a response to their written request.” Cal. Code. Regs., tit. 15, 10 § 3086(e)(2) (2016). 11 On or about July 17, 2016, Defendant Toussaint and his partner were processing inmate 12 mail in Building 2. Toussaint Decl. at 2:9-11, 2:23-24. At the time, Defendant Toussaint was 13 newly employed as a correctional officer at CDCR for less than two months. Id. Plaintiff 14 approached Defendant Toussaint to submit a Form 22 that detailed Plaintiff’s allegations 15 regarding Facility A staff subjecting him to cruel and unusual punishment based on A2-105’s lack 16 of electrical power for appliance usage, shelves for his “hygiene-food-etc.,” and a desk for writing. 17 Sheldon Decl., Ex. B [Second level Response to PBSP-16-01584]; Chen Decl., Ex. B [Plaintiff’s 18 July 17, 2016 Form 22]. Plaintiff requested that Defendant Toussaint submit the Form 22 directly 19 to the warden. Toussaint Decl. at 2:24-26. Defendant Toussaint informed Plaintiff that he would 20 process the Form 22 but that it would possibly be answered before reaching the warden, 21 depending on the issues involved in Plaintiff’s request. Toussaint Decl. 2:26-3:2. Defendant 22 Toussaint stated that this process was for the purpose of ensuring the expeditious resolution of 23 inmate issues in Form 22s. Id. Dissatisfied, Plaintiff placed the Form 22 in a sealed envelope and 24 requested that Defendant Toussaint process it as confidential legal mail. Toussaint Decl. at 3:3-7. 25 Defendant Toussaint, unsure as to the appropriate procedure for processing a Form 22 through the 26 confidential mailing process, took the envelope to his partner to discuss. Toussaint Decl. at 3:8- 27 10. Defendant Toussaint’s partner informed Defendant Toussaint that Form 22s could not be 1 envelope back to Plaintiff. Toussaint Decl. at 3:10-14. Defendant Toussaint, in turn, informed 2 Plaintiff that he could not process his Form 22 as legal mail as submitted. Id. Plaintiff stated 3 Defendant Toussaint was denying his right to correspond with the warden. Toussaint Decl. at 4 3:14. Defendant Toussaint replied that Plaintiff could write the warden a letter and submit it as 5 confidential legal mail for processing, or that Plaintiff could submit a Form 22 through its standard 6 non-confidential process. Toussaint Decl. at 3:14-16. Plaintiff repeated that Defendant Toussaint 7 had denied his right to correspondence and walked away, which Defendant Toussaint took as 8 Plaintiff ending the conversation. Toussaint Decl. at 3:17-18. 9 4. Plaintiff’s Grievances Relating to Plaintiff’s Allegations of Retaliation 10 a. PBSP-16-01431 11 On or about June 22, 2016,5 Plaintiff submitted appeal no. PBSP-16-01431 alleging that 12 his assignments to Inmate Perry on June 8, 2016, and Inmate Ford on June 15, 2016, were 13 retaliatory cell assignments by Defendants Schrag and Buchanan, among other individuals, for his 14 past filed grievances. Ramos Decl., Ex. D [Third Level Response to PBSP-16-01431]. On July 15 16, 2016, Sergeant T. Combs interviewed Plaintiff regarding those allegations, during which 16 Plaintiff stated that he had nothing further to add. Royal Decl. at 4:21-23; Ramos Decl., Ex. D 17 [Third Level Response to PBSP-16-01431]. Defendant Buchanan conducted the first level inquiry 18 and recommended that the appeal be partially granted at the first level of review, based on his 19 review of Plaintiff’s submitted documents in support of the first level grievance, his review of 20 Plaintiff’s central file indicating association with the Del Paso Heights Bloods, Plaintiff’s related 21 Form 22s submitted on the same allegations, and Plaintiff’s July 16, 2016 interview by Sergeant 22 Combs. Buchanan Decl. at 2:22-28, Ex. A [First Level Response to PBSP-16-01431]. Defendant 23 Olson reviewed and approved Defendant Buchanan’s recommendation at the first level based on 24 all relevant information provided to the first level inquiry. Olson Decl. at 2:22-28, Ex. A [First 25 Level Response to PBSP-16-01431]; Ramos Decl., Ex. D [Third Level Response to PBSP-16- 26 5 The Court notes that the record contradicts Plaintiff’s claim as to the date that he filed 27 PBSP-16-01431 (he states he filed it on July 6, 2016, see dkt. 10 at 3), but there is no need to 1 01431]. Outside of this administrative review and approval, Defendant Olson was not otherwise 2 involved in Plaintiff’s housing assignments in June 2016 and had no involvement in assigning 3 Plaintiff to any particular facility, building, or cell. Olson Decl. at 4:1-3. Plaintiff was dissatisfied 4 and sought a second level review. Royal Decl. at 4:25-26, Ex. A [Plaintiff’s Pelican Bay Appeals 5 Tracking Log]. Appeals Coordinator A. Sheldon, conducted the second level inquiry and agreed 6 with the first level review in finding that Plaintiff was a documented non-validated Del Paso 7 Heights Bloods associate, and had not been housed with an enemy. Sheldon Decl. at 2:12-24, Ex. 8 A [Second Level Response to PBSP-16-01431]. Appeals Coordinator Sheldon provided her 9 findings and recommendations for Defendant Bradbury’s review and approval on behalf of the 10 hiring authority. Sheldon Decl. at 2:24-26, Ex. A [Second Level Response to PBSP-16-01431]; 11 Bradbury Decl. at 2:21-25, Ex. B [Second Level Response to PBSP-16-01431]. Plaintiff remained 12 dissatisfied and submitted the grievance to the CDCR’s OOA for a third level of review, where 13 Appeals Examiner J. Dominguez conducted the inquiry and recommended that no modification 14 order was necessary. Hodges Decl. at 3:6-8, Ex. A [Third Level Response to PBSP-16-01431]; 15 Ramos Decl., Ex. A [Plaintiff’s Third Level Appeals Tracking Log]. Defendant Hodges reviewed 16 that recommendation, which included consideration of the findings and recommendations of the 17 first and second levels of review, Plaintiff’s central file, relevant title 15 sections, and Plaintiff’s 18 housing and classification factors, and approved the recommendation that no modification order 19 was necessary; she approved the recommendation on behalf of Defendant Voong, Chief of the 20 OOA. Hodges Decl. at 3:6-10, Ex. A [Third Level Response to PBSP-16-01431]; Voong Decl. at 21 3:10-14; Ramos Decl., Ex. D [Third Level Response to PBSP-16-01431]. Defendants Hodges and 22 Voong had no involvement in Pelican Bay’s housing operations and had no authority to conduct 23 Plaintiff’s cellmate assignments or bed moves. Hodges Decl. at 3:19-26; Voong Decl. at 2:21-25. 24 Defendant Voong was not involved in reviewing or approving this grievance, as he designated 25 Defendant Hodges to act on his behalf. Voong Decl. at 3:2-4. 26 b. PBSP-16-01584 27 On or about July 19, 2016, Plaintiff submitted appeal no. PBSP-16-01584 alleging that his 1 Higgerson Decl. at 2:12-16; Sheldon Decl., Ex. B [Second Level Response to PBSP-16-01584]. 2 Of these Defendants, Plaintiff named only Defendants Schrag, Wilcox, and Buchanan, in this 3 grievance as among those alleged to be responsible for this cell move. Id. These allegations were 4 treated as a staff complaint. Olson Decl. at 3:3-8, Ex. B [First Level Response to PBSP-16- 5 01584]. Defendant Higgerson conducted the first level inquiry and interviewed Defendant on 6 August 7, 2016 in relation to this grievance; Defendant Higgerson provided his findings to the 7 non-staff complaint allegations to Defendant Olson. Higgerson Decl. at 3:2-4:8; Olson Decl. at 8 3:3-8, Ex. B [First Level Response to PBSP-16-01584]. Defendant Olson reviewed Defendant 9 Higgerson’s recommendation and approved the first level’s partial grant of this grievance, 10 agreeing that staff were found to have not violated CDCR policy. Olson Decl. at 3:5-8, Ex. B 11 [First Level Response to PBSP-16-01584]. Defendant Olson’s approval of this response was 12 based on a review of the issues contained in Plaintiff’s appeal and Defendant Higgerson’s August 13 7, 2016 interview with Plaintiff. Id. Defendant Olson had no personal participation in Plaintiff’s 14 housing assignments or moves. Olson Decl. at 4:1-3. 15 Defendant Higgerson provided his findings and recommendations, that Plaintiff’s staff 16 complaint allegations be denied, to the second level. Sheldon Decl. at 3:4-8, Ex. B [Second Level 17 Response to PBSP-16-01584]. Defendant Higgerson’s recommendation was based on, among 18 other things, his interviews of Plaintiff, Defendant Schrag, Officer Branion, an inspection of A2- 19 105, its work order history, and a review of Plaintiff’s access to services, programs, and activities. 20 Higgerson Decl. at 3:2-4:8. That recommendation was reviewed and approved by Appeals 21 Coordinator A. Sheldon. Sheldon Decl. at 3:4-11, Ex. B [Second Level Response to PBSP-16- 22 01584]. Appeals Coordinator Sheldon agreed with Defendant Higgerson’s recommendation that 23 there was no evidence of staff wrongdoing, based on information from a review of Plaintiff’s 24 central file and Defendant Higgerson’s interviews. Id. Appeals Coordinator Sheldon’s 25 recommendation was reviewed and approved by Defendant Bradbury on behalf of the hiring 26 authority. Bradbury Decl. at 3:7-9, Ex. D. [Second Level Response to PBSP-16-01584]; Sheldon 27 Decl. at 3:10-12, Ex. B [Second Level Response to PBSP-16-01584]. Plaintiff remained 1 Defendant Hodges, as the Appeals Examiner, conducted the inquiry and recommended that no 2 modification order was necessary. Hodges Decl. at 3:12-15, Ex. B [Third Level Response to 3 PBSP-16-01584]; Ramos Decl., Ex. E [Third Level Response to PBSP-16-01584]. Defendant 4 Hodges based her consideration of the findings and recommendations on the institutions’ review, 5 Plaintiff’s central file, and relevant sections of the California Penal Code, title 15, and the CDCR’s 6 Operations Manual. Hodges Decl., Ex. B [Third Level Response to PBSP-16-01584]. Defendant 7 Hodges’ recommendation was approved by OOA Acting Chief S. Hemenway and thus Defendant 8 Voong was not involved in reviewing or approving this grievance, as he designated Acting Chief 9 Hemenway to act on his behalf. Hodges Decl. at 3:15-17, Ex. B [Third Level Response to PBSP- 10 16-01584]; Voong Decl. at 3:2-4, 3:24-4:1, Ex. B [Third Level Response to PBSP-16-01584]. 11 c. PBSP-16-01757 12 On or about August 2, 2016, Plaintiff submitted appeal no. PBSP-16-01757 alleging 13 Defendant Toussaint had obstructed Plaintiff from pursing his First Amendment right to write 14 Warden Ducart through confidential legal mail. Royal Decl., Ex. D [Second Level Review to 15 PBSP-16-01757]; Olson Decl., Ex. C [First Level Appeal Response to PBSP-16-01757]. Sergeant 16 T. Combs interviewed Plaintiff in relation to this grievance on September 18, 2016 and provided it 17 to the first level. Id. At the first level, Captain C. J. Parry conducted the inquiry and provided his 18 recommendation to Defendant Olson that the grievance be denied. Olson Decl. at 3:15-17, Ex. C 19 [First Level Appeal Response to PBSP-16-01757]. Defendant Olson reviewed and approved 20 Parry’s recommendation in denying the grievance at the first level, based on a review of Plaintiff’s 21 allegations and a review of relevant regulations discussing Form 22 and mailing procedures. Id. 22 Defendant Olson had no personal participation in processing this Form 22. Olson Decl. at 4:3-5. 23 Plaintiff was dissatisfied and submitted the grievance for a second level review, which was 24 received on October 4, 2016. Royal Decl. at 5:20-22, Ex. D [Second Level Response to PBSP-16- 25 01757]; Bradbury Decl., Ex. F [Second Level Response to PBSP-16-01757]. Appeals Coordinator 26 K. Royal conducted the second level inquiry by considering all relevant sections of title 15 and the 27 CDCR’s Department Operations Manual, and agreed with the first level’s response; Appeals 1 second level on behalf of the hiring authority. Royal Decl. at 5:20-24, Ex. D [Second Level 2 Response to PBSP-16-01757]; Bradbury Decl. at 3:22-24, Ex. F [Second Level Response to 3 PBSP-16-01757]. Plaintiff remained dissatisfied and appealed to the third level of review, where 4 Appeals Examiner J. Vila conducted the inquiry and recommended that no modification order was 5 necessary. Voong Decl. at 4:3-4, Ex. C [Third Level Response to PBSP-16-01757]; Ramos Decl., 6 Ex. F [Third Level Response to PBSP-16-01757]. That recommendation was reviewed and 7 approved by OOA Acting Chief R. Briggs, whom Defendant Voong designated to review on his 8 behalf. Voong Decl. at 4:5-9; Ramos Decl. Ex. F [Third Level Response to PBSP-16-01757]. 9 Defendant Voong was not involved in reviewing or approving this grievance. Voong Decl. at 3:2- 10 4, 4:5-8. 11 III. LEGAL STANDARD 12 Summary judgment is proper where the pleadings, discovery and affidavits demonstrate 13 that there is “no genuine issue as to any material fact and that the moving party is entitled to 14 judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the 15 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a 16 material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for 17 the nonmoving party. Id. 18 The party moving for summary judgment bears the initial burden of identifying those 19 portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine 20 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving 21 party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no 22 reasonable trier of fact could find other than for the moving party. On an issue for which the 23 opposing party by contrast will have the burden of proof at trial, as is the case here, the moving 24 party need only point out “that there is an absence of evidence to support the nonmoving party’s 25 case.” Id. at 325. 26 Once the moving party meets its initial burden, the nonmoving party must go beyond the 27 pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a 1 material facts and “[f]actual disputes that are irrelevant or unnecessary will not be counted.” 2 Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine 3 issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party 4 has the burden of identifying, with reasonable particularity, the evidence that precludes summary 5 judgment. Id. If the nonmoving party fails to make this showing, “the moving party is entitled to 6 a judgment as a matter of law.” Celotex, 477 U.S. at 323. 7 Only admissible evidence may be considered in ruling on a motion for summary judgment. 8 Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002). Submitted by Defendants in support of the 9 motion for summary judgment are Plaintiff’s deposition (Dkt. 34-2 at 111-115, Chen Decl., Ex. A) 10 as well as declarations and all attached exhibits from the following: OOA Chief T. Ramos; PBSP 11 Appeals Coordinators A. Sheldon and K. Royal; Deputy Attorney General Joanne Chen; and 12 Defendants Voong, Hodges, Bradbury, Olson, Wilcox, Buchanan, Higgerson, Schrag, and 13 Toussaint. Dkts. 31-1 – 31-3, 34-1 – 31-2 at 106. Meanwhile, Plaintiff has filed his verified 14 amended complaint (dkt. 10) and his verified opposition to Defendants’ motion (dkt. 35). The 15 Court will construe these filings as affidavits under Federal Rule of Civil Procedure 56, insofar as 16 they are based on personal knowledge and set forth specific facts admissible in evidence. See 17 Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). Finally, Plaintiff has 18 submitted various exhibits and declarations filed in support of his opposition. Dkt. 38-1. 19 Defendants have filed objections to Plaintiff’s evidence in support of his opposition. Dkt. 38-1 at 20 1-7. Defendants assert some of Plaintiff’s supporting exhibits and declarations either: (1) lack a 21 foundation of personal knowledge or expertise; (2) show that Plaintiff is not an expert with 22 knowledge as to the information contained in the exhibit; (3) constitute speculation; (4) contain 23 inadmissible hearsay; (5) have not been authenticated; and (6) are irrelevant and outside the scope 24 of this action. Although the Court may discuss some of Plaintiff’s evidence in question in its 25 analysis, the Court points out within its analysis why this evidence is not sufficient to defeat 26 summary judgment. The Court finds that even if any of Plaintiff’s aforementioned evidence was 27 admitted and accepted at face value, Defendants still would be entitled to judgment as a matter of IV. DISCUSSION 1 Plaintiff cites the First Amendment and alleges in his complaint that Defendants’ actions 2 were in retaliation for Plaintiff submitting formal grievances. Dkt. 10 at 3. Specifically, Plaintiff 3 states retaliation claims: (1) against Defendants Schrag, Wilcox, and Buchanan for their part in 4 placing Plaintiff in cell A2-105 on July 9, 2016 as punishment for filing PBSP-16-01431; 5 (2) against Defendant Toussaint for refusing to process Plaintiff’s July 17, 2016 Form 22 directly 6 to the warden; and (3) against Defendants Olson, Bradbury, Higgerson, Hodges, and Voong for 7 being aware of the aforementioned alleged retaliatory actions by others but failing to take 8 corrective action when they denied his grievances. Dkt. 10 at 3-7. 9 Retaliation by a state actor for the exercise of a constitutional right is actionable under 10 section 1983, even if the act, when taken for different reasons, would have been proper. See Mt. 11 Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84 (1977). Retaliation is 12 actionable because retaliatory actions may tend to chill individuals’ exercise of constitutional 13 rights, even though retaliation is not expressly referenced in the Constitution. See Perry v. 14 Sindermann, 408 U.S. 593, 597 (1972). 15 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 16 elements: (1) An assertion that a state actor took some adverse action against an inmate 17 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 18 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 19 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 20 Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under 21 section 1983 for retaliation must allege that he was retaliated against for exercising his 22 constitutional rights and that the retaliatory action did not advance legitimate penological goals, 23 such as preserving institutional order and discipline); Barnett v. Centoni, 31 F.3d 813, 816 (9th 24 Cir. 1994) (per curiam) (same); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (contention 25 that actions “arbitrary and capricious” sufficient to allege retaliation). The prisoner must show 26 that the type of activity he was engaged in was constitutionally protected, that the protected 27 conduct was a substantial or motivating factor for the alleged retaliatory action, and that the 1 retaliatory action advanced no legitimate penological interest. Hines v. Gomez, 108 F.3d 265, 2 267-68 (9th Cir. 1997). 3 Retaliation claims brought by prisoners must be evaluated in light of concerns over 4 “excessive judicial involvement in day-to-day prison management, which ‘often squander[s] 5 judicial resources with little offsetting benefit to anyone.’” Pratt v. Rowland, 65 F.3d 802, 807 6 (9th Cir. 1995) (quoting Sandin v. Conner, 515 U.S. 472, 482 (1995)) (brackets added). In 7 particular, courts should “‘afford appropriate deference and flexibility’ to prison officials in the 8 evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory.” Id. 9 A. Alleged Retaliation By Defendants Schrag, Wilcox, and Buchanan In Moving Plaintiff to Cell A2-105 10 To reiterate, Plaintiff alleges that he was placed in cell A2-105 as punishment for filing a 11 grievance, log no. PBSP-16-01431, naming several supervisorial and custody staff as co- 12 conspirators of malfeasance. Dkt. 10 at 3. In its Order of Service, the Court found that Plaintiff’s 13 aforementioned allegations raised a cognizable retaliation claim against Defendants Schrag, 14 Wilcox, and Buchanan in violation of his First Amendment rights. Dkt. 11 at 2. 15 Defendants maintain that Plaintiff’s move to cell A2-105 was “for reasons unrelated to 16 Plaintiff’s grievance activities” and instead it was because “Facility A was experiencing an 17 increased number of inmate transfers and needed to compact beds in order to accommodate the 18 institution’s goal of efficient use of bed space and accommodating the program needs of Facility 19 A’s inmates.” Dkt. 30 at 21 (citing Schrag Decl. at 2:24-28; Buchanan Decl. at 3:10-17). Thus, 20 Defendants argue “Plaintiff’s claims of retaliation against [them] fail as he cannot establish that 21 his cell move during bed compactions advanced no legitimate correctional goal of the institution.” 22 Id. at 22. 23 As to the first and second elements of retaliation listed above, Plaintiff claims that 24 Defendants Schrag, Wilcox, and Buchanan took the following adverse actions against him because 25 after he filed PBSP-16-01431: (1) he was rehoused on July 9, 2016 in cell A2-105 “which lacked a 26 seat/stool, no desk or table to eat meals [or] write, no electrical power to use his approved personal 27 property . . . and a broken sink . . . ,” dkt. 10 at 3; and (2) Plaintiff was placed in such inadequate 1 housing for approximately 5 months or until around November 2016 before he was “moved back 2 to adequate and appropriate/normal general population housing,” id. at 5-6. In contrast, 3 Defendants argue that their actions were not adverse to Plaintiff, stating as follows: 4 Plaintiff alleges that the cell move was adverse because he was a general population inmate and A2-105 was a “management cell.” 5 (Pl.’s First Amended Compl., ECF No. 10.) Plaintiff cannot provide a consistent account of what he means by “management cell,” but 6 concedes he learned about the “management” term through “random people in prison.” (Chen Decl. Ex. A [Frost Depo.] at 53:6-12.) 7 There can be no dispute that A2-105, was designated for general population inmates, and that Plaintiff was a general population 8 inmate. [Schrag Decl. at 4:2-3; Wilcox Decl. at 3:11-13; Buchanan Decl. at 3:23-25; DeWitt Decl. at 2:24-25;; Chen Decl., Ex. A [Frost 9 Depo.] at 48:7-10.] No override was necessary to move Plaintiff into A2-105 and the cell was further appropriate for Plaintiff’s placement 10 in that it matched all of his housing factors. [Schrag Decl. at 3:10-13; Dewitt Decl. at 2:8-11; 23-24.] Plaintiff was confirmed to have 11 received the same level of access to programs, services, and activities in A2-105 as he did prior. [Higgerson Decl. at 4:2-3.] 12 And to the extent that Plaintiff is alleging physical plant defects in 13 A2-105 constituted adverse action, this argument must again fail, because inmates have no expectation to be housed in a particular cell. 14 See Cal. Code. Regs., tit 15, § 3269 (2016) (stating that inmates are not entitled to a housing location of their choice). It is further 15 undisputed that during his inquiry of Plaintiff’s administrative grievance, Defendant Higgerson also placed work orders to help 16 remedy physical plant defects to restore the cell’s electrical use after Plaintiff complained about them. (Higgerson Decl. at 3:2-4:8.) 17 Moreover, Defendant Higgerson, in conducting his inquiry, offered Plaintiff the possibility of potentially being able to move to another 18 cell if Plaintiff could find someone he was willing to cell with, and Plaintiff refused. [Higgerson Decl. at 2:26-3:1.] During this time, 19 Plaintiff kept his appliances and was accommodated by their use in the dayroom. [Buchanan Decl. at 4:4-5; Chen Decl., Ex. A [Frost 20 Depo.] at 53:16-17.] Plaintiff eventually moved to another cell on October 26, 2016. (Buchanan Decl., Ex. D [Plaintiff’s Bed 21 Assignment History].) 22 Dkt. 30 at 23-24 (brackets added). 23 Nevertheless, Plaintiff points out that after he was assigned to cell A2-105, he “requested, 24 several times, to be allowed use of his typewriter for an hour in the dayroom, every third day, but 25 was denied, each, and every time he asked for this access.” Dkt. 35 at 9. Moreover, Plaintiff 26 “disputes that cell A2-105 is a normal general population cell.” Id. at 11. Plaintiff claims that cell 27 A2-105 “serves as a punishment cell, worse than the security housing unit, or administrative 1 personal appliances, as Plaintiff did.” Id. Plaintiff adds that “Defendants Schrag, Buchanan and 2 Wilcox conducted these cell moves in retaliation to punish Plaintiff for his willingness to file 3 CDCR 602 [appeals] . . . .” Id. at 5. The Court finds that such action could be sufficient to 4 constitute adverse action. See e.g., Rhodes, 408 F.3d at 568 (noting that arbitrary confiscation and 5 destruction of property, initiation of a prison transfer, and assault in retaliation for filing 6 grievances was sufficient to plead an adverse action); Pratt, 65 F.3d at 806 (re-affirming that an 7 allegation of retaliatory prison transfer and double-cell status sufficiently states a claim of 8 retaliation). Retaliatory motive may be shown by the timing of the allegedly retaliatory act and 9 inconsistency with previous actions, as well as direct evidence. See Bruce v. Ylst, 351 F.3d 1283, 10 1288-89 (9th Cir. 2003). In the instant matter, Plaintiff has shown that his July 9, 2016 cell move 11 to cell A2-105 occurred after he filed PBSP-16-01431. Dkt. 10 at 3. 12 As to the third of the above-referenced five elements, Plaintiff has submitted evidence 13 sufficient to show the asserted retaliatory cell move on July 9, 2016 occurred after he filed PBSP- 14 16-01431. Dkt. 10 at 3. Prisoners may not be retaliated against for exercising their “First 15 Amendment right to pursue civil rights litigation in the courts.” See Schroeder v. McDonald, 55 16 F.3d 454, 461 (9th Cir. 1995). The right of access to the courts extends to established prison 17 grievance procedures. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004). 18 With respect to the fourth element, although Plaintiff must show his First Amendment 19 rights were “chilled,” a prisoner need not show a total chilling of his First Amendment rights in 20 order to establish a retaliation claim. See Rhodes, 408 F.3d at 568-69 (rejecting argument that 21 inmate failed to state retaliation claim where, after alleged adverse action, plaintiff nonetheless 22 had been able to file inmate grievances and lawsuit). Here, Plaintiff has alleged that after he filed 23 PBSP-16-01431, he was moved to cell A2-105, which lacked certain items, like a seat/stool, a 24 desk/table, electrical power, and a working sink. See Dkt. 10 at 3. Such action is sufficient to 25 chill Plaintiff’s First Amendment Rights, irrespective of whether Plaintiff was actually inhibited. 26 See Rhodes, 408 F.3d at 569. 27 Lastly, for his retaliation claim to survive, Plaintiff must also prove the fifth element, i.e., 1 Rhodes, 408 F.3d at 567-68. As explained above, Defendants argue that based on the evidence 2 “Pelican Bay advanced a legitimate goal of the institution when Facility A staff moved Plaintiff to 3 cell A2-105.” Dkt. 30 at 21-22. Defendants elaborate on this as follows: 4 Contrary to Plaintiff’s claims, his move to A2-105 was in fact for reasons unrelated to Plaintiff’s grievance activities. It is undisputed 5 that, at the time of these events, Facility A was experiencing an increased number of inmate transfers and needed to compact beds in 6 order to accommodate the institution’s goal of efficient use of bed space and accommodating the program needs of Facility A’s inmates. 7 [Schrag Decl. at 2:24-28; Buchanan Decl. at 3:10-17.] Plaintiff’s move to A2-105 was one among an estimated 126 bed moves 8 conducted during these July 2016 bed compactions. [Schrag Decl. at 2:28-3:2.] All vacant cells had to be utilized to accommodate 9 institutional and program needs on Facility A, regardless of whether electrical outlets were available in each one. [Buchanan Decl., Ex. B 10 [Buchanan’s Letter Response to Plaintiff’s Form 22s].] The impetus behind Plaintiff’s particular bed move to A2-105—during these bed 11 compactions occurred by Plaintiff’s objection to a newly assigned cellmate, Inmate Davis. [Chen Decl., Ex. A [Frost Depo.] at 61:24- 12 25.] Plaintiff’s July 9, 2016 refusal thereby prompted the need for staff to identify other housing arrangements for him, as he was 13 explicitly refusing to cooperatively house with another inmate. This resulted in Officer J. Young requesting a bed swap for Plaintiff, then- 14 housed in A8-102, with Inmate Oliver, then-housed in Cell A2-105. [Dewitt Decl., Ex. B [July 9, 2016 Bed Request Batch]; Schrag Decl. 15 at 3:14-17, Ex. B [July 9, 2016 Bed Request Batch].] Plaintiff’s claims of retaliation against Defendants fail as he cannot establish that 16 his cell move during bed compactions advanced no legitimate correctional goal of the institution. 17 Dkt. 30 at 21-22 (brackets added). 18 However, Plaintiff claims that he “disputes any of Defendants’ claims that these [cell] 19 moves were done for legitimate institution goals, and [he] reiterates the fact that Defendants’ sole 20 purpose was to cause harm, harass, and chill Plaintiff from exercising his First Amendment right 21 secured by the United States Constitution.” Dkt. 35 at 16. Specifically, Plaintiff claims that the 22 “[cell] swap of A2-105 occupied by Inmate Oliver on July 9, 2016 to A8-102 occupied by Plaintiff 23 was vengeful and retaliatory,” stating as follows: 24 By swapping Plaintiff with [inmate] Oliver, who had no electrical 25 appliances, to cells that contradict each other’s need[s], was simply, and obviously malicious, and spiteful, because the lack of electrical 26 power, inmate Oliver did not need, because he had no appliances, at the time. Everyone knew why the cell move was done, because 27 Plaintiff had filed several complaints on staff, which they were very 1 Dkt. 35 at 16-17 (citing Pl.’s Exs., Inmate Anthony J. Davis Decl. (dkt. 35-1 at 58-60) and Inmate 2 Henry Albanez (dkt. 35-1 at 64)) (brackets added). Inmate Albanez, who was housed next door in 3 A2-103, states under penalty of perjury as follows: 4 . . . I personally observed cell #105 while Mr. Frost was housed and assigned to that cell, which was in no way similar to [Inmate 5 Albanez’s] assigned cell and all other cells. The cell Mr. Frost was assigned had no seat, no desk, not even a mirror, or electrical power 6 to plug-in appliance[s], which Mr. Frost had in his possession inside the cell by was unable to utilize. 7 Dkt. 35-1 at 64. Meanwhile, Inmate Davis, who was originally assigned as Plaintiff’s cellmate in 8 cell A8-102 on July 8, 2016 (when he was moved from A6-103 to A8-102), states under penalty of 9 perjury as follows: 10 After arriving at cell #102, I spoke to Mr. Frost and immediately 11 learned that we were incompatible due to religious beliefs, geographical areas of contrast, because I snore loud, and finally 12 because of my “alleged,” street gang affiliation, “Blood,” which the CDCR has erroneously labeled me and has failed to correct thus far! 13 Mr. Frost, stated adamantly that he is non-affiliated with any street gangs and does not want to be celled up with anyone that is. I 14 communicated all of this information to Correctional Officer Guietierrez [sic], the “A” yard, Bldg. #6, floor office that escorted me 15 to Bldg. 8. He stated, “I don’t care. You don’t have a choice! Are you refusing to go into the cell with him? I could not refuse because 16 to do so I knew would result in a serious rules violation report (CDCR [Form] 115) and that would have ruined my chances at a transfer to 17 a prison closer to Sacramento, where my mom lives. She’s d[y]ing of kidney failure and I’m trying to see her again before she dies. 18 Ultimately, Mr. Frost and I were “forced” under duress and fears of retaliation/reprisal by Correctional Staff here at PBSP, to cell up 19 together. At approx.. 1:04 PM on 7/8/2016, they released Bldg. #8 “A” yard for afternoon yard. I went immediately out to the program 20 office and spoke to a Sgt. For unknown reasons, the Sgt. moved Frost to A Yard’s Bldg[.] #2, Cell #105. That cell has no electrical power 21 system, no mirror . . . . 22 Dkt. 35-1 at 58-59 (brackets added). 23 Defendants argue that based on Inmate Davis’s declaration, the record shows that on July 24 8, 2016, “there was a legitimate correctional goal in separating Plaintiff and his cellmate in cell 25 A8-102, which resulted in Plaintiff being moved to cell A2-105 (and Inmate Oliver being moved 26 to cell A8-102 with Inmate Davis).” Dkt. 38 at 5. Defendants argue as follows: 27 Plaintiff does not dispute that Facility A was conducting bed (Schrag Decl. at 2:28-3:2, Buchanan Decl., Exh. B.) Utilizing 1 available bed space is a legitimate penological interest. 2 Prison officials also have a legitimate interest in the safety and security of inmates and the institution—interests that were advanced 3 by Plaintiff’s transfer from cell A8-102 to cell A2-105, which was prompted by information received by staff that Plaintiff was 4 incompatible with his cellmate in cell A8-102. Indeed, Plaintiff’s own evidence—the declaration of his former cellmate Anthony 5 Davis—demonstrates that Plaintiff’s move from cell A8-102 was performed in furtherance of the safety and security of inmates and the 6 institution. 7 Dkt. 38 at 4-5. Defendants point out that Inmate Davis recount of his July 8, 2016 encounter with 8 Plaintiff, who stated he did not want to be in the same cell as Inmate Davis once they “learned that 9 [they] were incompatible due to religious beliefs, geographical areas of contrast, because [Inmate 10 Davis] snore[d] loud[ly], and finally because of [Inmate Davis’s] ‘alleged,’ street gang 11 affiliation[.]” Id. at 5 (quoting Dkt. 35-1 at 58). 12 Under Rhodes, the Court finds that Plaintiff has failed to show that the adverse action he 13 suffered was because of his protected conduct, i.e., filing PBSP-16-01431. See 408 F.3d at 567- 14 68. Further, the only non-speculative assertion which Plaintiff could rely upon to link his conduct 15 to Defendants’ adverse action of moving him cell A2-105 is that cell move occurred after Plaintiff 16 filed PBSP-16-01431. But retaliation is not established simply by showing adverse activity by a 17 defendant after protected speech; rather, the plaintiff must show a nexus between the two. See 18 Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on the 19 logical fallacy of post hoc, ergo propter hoc, i.e., “after this, therefore because of this”). Plaintiff 20 has not shown a nexus here. Furthermore, Plaintiff has presented no facts indicating Defendants 21 knew about PBSP-16-01431. Mere speculation that Defendants Schrag, Wilcox, and Buchanan 22 must have acted out of retaliation because they knew about PBSP-16-01431 is not sufficient. 23 Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (citing cases) (affirming grant of summary 24 judgment where no evidence that defendants knew about plaintiff’s prior lawsuit, or that 25 defendants’ disparaging remarks were made in reference to prior lawsuit). Although Plaintiff 26 alleges that he submitted PBSP-16-01431 on July 6, 2016, just three days before his July 9, 2016 27 move to A2-105, it appears in the actual grievance documents that he in fact submitted it on or 1 July 6, 2016 date more accurately reflects the date in which the Appeals Office assigned it to the 2 Associate Warden’s Office for the first level response. See Olson Decl. Ex. A [First Level 3 Response to Appeal Log No. PBSP-16-01431]. In any case, Defendants argue that they “could 4 not have known about that appeal since the first level’s inquiry began on July 16, 2019.” Dkt. 30 5 at 15 (citing Royal Decl. at 4:21-23; Ramos Decl., Ex. D [Third Level Response to PBSP-16- 6 01431]). Defendants further argue as follows: 7 By the time Lieutenant Combs started his investigations into Facility A, Plaintiff was already housed in A2-105. [Dewitt Decl., Ex. B [July 8 9, 2016 Bed Request Batch]; Schrag Decl. at 3:14-17, Ex. B [July 9, 2016 Bed Request Batch]; Royal Decl. at 4:21-23; Ramos Decl., Ex. 9 D [Third Level Response to PBSP-16-01431].] Because of the aforementioned events—that were independent from his grievance 10 activity—Plaintiff would have been moved to A2-105 even without his submission of that appeal. 11 Dkt. 30 at 22-23 (brackets added). 12 Additionally, even if Plaintiff could show he was moved to cell A2-105 as retaliation for 13 exercising protected conduct, he cannot show that Defendants’ actions did not reasonably advance 14 the legitimate penological goal of utilizing all available bed space in the most efficient way 15 possible, as well as ensuring safety and security of inmates and the institution due to 16 incompatibility of the cellmates. It is undisputed that, at the time of these events, Facility A was 17 experiencing an increased number of inmate transfers and needed to compact beds in order to 18 accommodate the institution’s goal of efficient use of bed space and accommodating the program 19 needs of Facility A’s inmates. See Schrag Decl. at 2:24-28; Buchanan Decl. at 3:10-17. 20 Plaintiff’s move to cell A2-105 was one among an estimated 126 bed moves conducted during 21 these July 2016 bed compactions. See Schrag Decl. at 2:28-3:2. All vacant cells had to be utilized 22 to accommodate institutional and program needs on Facility A, regardless of whether electrical 23 outlets were available in each one. See Buchanan Decl., Ex. B [Buchanan’s Letter Response to 24 Plaintiff’s Form 22s]. Finally, Defendants have pointed out and the evidence shows that that the 25 “impetus behind Plaintiff’s particular bed move to A2-105—during these bed compactions 26 occurred by Plaintiff’s objection to a newly assigned cellmate, Inmate Davis.” Dkt. 30 at 22 27 (citing Chen Decl., Ex. A [Frost Depo.] at 61:24-25) ; Dkt. 38 at 4-5 (citing Dkt. 35-1 at 58 [Davis 1 Decl.]) Thus, the evidence shows that Plaintiff’s July 9, 2016 objection to be housed with Inmate 2 Davis thereby prompted the need for staff to identify other housing arrangements for him. See 3 Dkt. 35-1 at 58-59. This resulted in Officer Young requesting a bed swap for Plaintiff (in A8-102) 4 with Inmate Oliver (in Cell A2-105). See Dewitt Decl., Ex. B [July 9, 2016 Bed Request Batch]; 5 Schrag Decl. at 3:14-17, Ex. B [July 9, 2016 Bed Request Batch]. Therefore, Plaintiff has not 6 carried his burden of pleading and proving the last Rhodes factor—that his cell move did not 7 reasonably advance a legitimate correctional goal. 8 Having viewed the evidence in the light most favorable to Plaintiff, the Court finds that he 9 has failed to produce specific evidence to show that a genuine issue of material fact exists as to his 10 retaliation claim against Defendants for allegedly moving him to cell A2-105 as punishment for 11 filing PBSP-16-01431. Accordingly, these Defendants Schrag, Wilcox, and Buchanan are entitled 12 to summary judgment on Plaintiff’s First Amendment claim. Therefore, the Court GRANTS 13 Defendants’ motion for summary judgment as to this claim. 14 B. Defendant Toussaint’s Alleged Retaliation Against Plaintiff for Refusing to Process Plaintiff’s July 17, 2016 Form 22 Directly to the Warden 15 Plaintiff next claims that Defendant Toussaint retaliated against him by refusing to process 16 Plaintiff’s July 17, 2016 Form 22 directly to the warden. Dkt. 10 at 6-7. Meanwhile Defendants 17 argue that Plaintiff’s claims against Defendant Toussaint “necessarily fail because Defendant 18 Toussaint was acting with a legitimate penological purpose in returning Plaintiff’s July 17, 2016 19 Form 22.” Dkt 30 at 24-25. Defendants argue as follows: 20 It is undisputed that Defendant Toussaint first gave Plaintiff the 21 explanation that Form 22s were intended to resolve inmates’ requests expeditiously so it would not necessarily reach the warden’s level for 22 resolution. [Toussaint Decl. at 2:26-3:1.] In providing this explanation, Defendant Toussaint was reiterating the purpose of Form 23 22s, as articulated in title 15, wherein departmental staff must work to expeditiously resolve those inmate issues submitted through 24 written request by providing the Form 22 to any staff who is able to respond to the issue. [Toussaint Decl. at 2:19-21; Cal. Code Regs. tit. 25 15, § 3086(a) (2016).] Moreover, when Plaintiff apparently attempted to circumvent this process by sealing the Form 22 into an envelope 26 for processing as confidential legal mail, Defendant Toussaint went to ask his mail processing partner if such a request was possible. 27 [Toussaint Decl. at 3:8-10.] When he was informed that it was not, the warden through confidential legal mail, or submit the Form 22 1 through its usual non-confidential process. [Toussaint Decl. at 3:8- 16.] 2 Id. (brackets added). Defendants further argue that “Defendant Toussaint, by returning the Form 3 22 and encouraging Plaintiff follow the appropriate Form 22 procedures, as detailed in title 15, 4 section 3086, was acting in furtherance of a legitimate penological goal detailed in California’s 5 regulations.” Id. at 25. 6 Here, even if Plaintiff could show that Defendant Toussaint’s aforementioned actions were 7 in retaliation for exercising protected conduct, Plaintiff cannot show that Defendant Toussaint’s 8 actions of encouraging Plaintiff follow the appropriate Form 22 procedures (as explained in 9 Section 3086 of Title 15 of the California Code of Regulations) was in furtherance of a legitimate 10 penological goal. Therefore, Plaintiff has not carried his burden of pleading and proving the last 11 Rhodes factor—that Defendant Toussaint’s actions did not reasonably advance a legitimate 12 correctional goal. 13 Having viewed the evidence in the light most favorable to Plaintiff, the Court finds that he 14 has failed to produce specific evidence to show that a genuine issue of material fact exists as to his 15 retaliation claim against Defendant Toussaint for his alleged refusal to process Plaintiff’s July 17, 16 2016 Form 22 directly to the warden. Therefore, the Court GRANTS Defendants’ motion for 17 summary judgment as to this claim. 18 C. Defendants Olson’s, Bradbury’s, Higgerson’s, Hodges’s, Voong’s Alleged 19 Retaliatory Actions in Reviewing Plaintiff’s Grievances 20 Finally, Plaintiff claims that Defendants Olson, Bradbury, Higgerson, Hodges, and Voong 21 were aware of retaliatory actions by others, but failed to take corrective action when they denied 22 his grievances. Dkt. 10 at 4-7. 23 As against Defendant Olson, Plaintiff’s claim is based only on Defendant Olson’s apparent 24 participation in reviewing the related grievances: PBSP-16-01431, PBSP-16-01584, and PBSP-16- 25 01757. Dkt. 10 at 5-6. Defendant Olson’s approvals to the recommended responses, to the three 26 grievances at issue in this case, were given to Plaintiff after a methodical consideration of the 27 inquiry’s findings and proposed recommendations. See Olson Decl. at 3:5-8, 3:15-17, 3:21-28, 1 01584], Ex. C [First Level Response to PBSP-16-01757]; Ramos Decl., Ex. D [Third Level 2 Response to PBSP-16-01431]. 3 Meanwhile, Plaintiff’s claim against Defendant Bradbury is based solely on his 4 involvement in the institution’s second level review of Plaintiff’s grievances. Dkt. 10 at 5. 5 Defendant Bradbury’s involvement in these events was restricted only to approving and signing 6 Pelican Bay’s Appeals Coordinators’ recommended second level responses, on behalf of the hiring 7 authority. See Sheldon Decl. at 2:24-26, 3:10-12, Ex. A [Second Level Response to PBSP-16- 8 01431], Ex. B [Second Level Response to PBSP-16-01584]; Bradbury Decl. at 2:22-24, 3:7-9, 9 3:22-24, Ex. B [Second Level Response to PBSP-16-01431], Ex. D. [Second Level Response to 10 PBSP-16-01584]; Royal Decl. at 5:22-24, Ex. D [Second Level Response to PBSP-16-01757]. 11 These approvals were given only after the Appeals Coordinators reviewed all submitted and 12 relevant documents and information for each of Plaintiff’s allegations. See Sheldon Decl. at 2:11- 13 24, 3:4-8, Ex. A [Second Level Response to PBSP-16-01431], Ex. B [Second Level Response to 14 PBSP-16-01584]; Royal Decl. at 5:20-22, Ex. D [Second Level Response to PBSP-16-01757]; 15 Bradbury Decl., Ex. F [Second Level Response to PBSP-16-01757]. 16 As against Defendant Higgerson, Plaintiff alleges that Defendant Higgerson’s 17 administrative involvement into the first level grievance response to PBSP-16-01584 should have 18 led to the discovery of actual knowledge indicating Facility A staff’s retaliatory intent in 19 Plaintiff’s housing placement into A2-105. Dkt. 10 at 4-5. Defendant Higgerson was assigned to 20 conduct the interview of Plaintiff and the first level inquiry to PBSP-16-01584, and Defendant 21 Higgerson based his recommended response on information obtained through interviews with 22 Plaintiff and pertinent key witnesses, a visual inspection of A2-105, and his review of the work 23 order logs for that cell. Higgerson Decl. at 2:12-16, 3:2-4:8; Sheldon Decl., Ex. B [Second Level 24 Response to PBSP-16-01584]. 25 Plaintiff’s claims against Defendants Hodges and Voong, who work for the OOA in 26 Sacramento, relate to their alleged retaliatory denial of his grievances at the third level of appeal. 27 Dkt. 10 at 6. Defendant Hodges was not involved in the Pelican Bay’s housing operations and had 1 Defendant Hodges’ involvement is only in a retrospective administrative capacity as an Appeals 2 Examiner (and an episodic designated equivalent of Defendant Voong), and her third level 3 examination of PBSP-16 01431, and her review and approval of the third level response to PBSP- 4 16-01584, included considerations of the findings and recommendations of all levels of review, 5 relevant statutory and regulatory authority, departmental operations, and other facts relevant to 6 Plaintiffs’ grievances. See Hodges Decl. at 3:8-10, Ex. A [Third Level Response to PBSP-16- 7 01431], Ex. B [Third Level Response to PBSP-16-01584]; Ramos Decl., Ex. D [Third Level 8 Response to PBSP-16-01431]. Meanwhile, it is undisputed that Defendant Voong did not 9 personally review or approve the third level responses to the grievances at issue, as the record 10 shows that Defendant Voong designated other OOA staff to approve and sign those third level 11 responses on his behalf. See Voong Decl. at 3:2-4. 12 Defendants argue that their involvement in the review and resolution of inmate grievances, 13 without more, is not actionable under section 1983. Dkt. 30 at 25-28 (citing Shallowhorn v. 14 Molina, 572 Fed. Appx. 545, 547 (9th Cir. 2014) (claims against defendants involved in appeals 15 process properly dismissed because “inmates lack a separate constitutional entitlement to a 16 specific grievance procedure”); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (same)). 17 However, during its initial review of Plaintiff’s claims, the Court determined that Plaintiff had 18 stated a cognizable claim by alleging that Defendants’ denials of his appeals violated his rights 19 under the First Amendment because they had the authority to remedy the alleged violations but 20 failed to do so. Dkt. 11 at 2. 21 However, viewing the evidence in the light most favorable to Plaintiff, the Court finds 22 there is no genuine dispute as to any material fact relating to Plaintiff’s retaliation claim against 23 Defendants Olson, Bradbury, Higgerson, Hodges, and Voong based on their individual actions. 24 These Defendants’ involvement was in reviewing Plaintiff’s grievances related to his retaliation 25 claim, and as the explained above, the Court has already found that Plaintiff has failed to produce 26 specific evidence to show that a genuine issue of material fact exists as to his aforementioned 27 retaliation claims: (1) against Defendants Schrag, Wilcox, and Buchanan for allegedly moving him 1 his alleged refusal to process Plaintiff’s July 17, 2016 Form 22 directly to the warden. Therefore, 2 it follows that Plaintiff has also failed to produce specific evidence to show that a genuine issue of 3 material fact exists as to his retaliation claim against Defendants Olson, Bradbury, Higgerson, 4 Hodges, and Voong based on their participation in reviewing the related grievances to those 5 retaliation claims: PBSP-16-01431, PBSP-16-01584, and PBSP-16-01757. Again, mere 6 speculation that these Defendants acted out of retaliation is not sufficient. See Wood, 753 F.3d at 7 904. 8 In sum, none of the aforementioned actions by Defendants Olson, Bradbury, Higgerson, 9 Hodges, and Voong would lead a reasonable jury to find that these Defendants’ actions of 10 reviewing Plaintiff’s grievances violated his First Amendment rights. In opposition, Plaintiff has 11 failed to identify with reasonable particularity the evidence that precludes summary judgment. See 12 Keenan, 91 F.3d at 1279. Accordingly, Defendants Olson, Bradbury, Higgerson, Hodges, and 13 Voong are entitled to summary judgment on the retaliation claim against them based on their 14 involvement in the grievance process. Therefore, the Court GRANTS Defendants’ motion for 15 summary judgment as to this claim. 16 V. CONCLUSION 17 For the foregoing reasons, the Court orders as follows: 18 1. Defendants’ objections to Plaintiff’s evidence are DENIED as moot. Dkt. 38-1.2 19 2. Defendants’ motion for summary judgment is GRANTED as to all claims,6 and 20 judgment will be entered in their favor. Dkt. 30. 21 3. The Clerk of the Court shall terminate as moot all pending motions, including 22 Plaintiff’s motion entitled, “Plaintiff’s Request for Admissions/Consideration of 23 Addendum/Request for Counsel,”7 (dkt. 40), and close the file. 24 25 6 The Court’s finding that Defendants are entitled to summary judgment as a matter of law on Plaintiff’s First Amendment claims obviates the need to address these Defendants’ alternative 26 arguments. 27 7 Plaintiff seems to attempt to raise additional claims in his motion, which are not relevant 1 4. This Order terminates Docket Nos. 30 and 40. 2 IT IS SO ORDERED. 3 || Dated: March 23, 2020 4 YVONNE GONZALEZ ROGERS 5 United States District Judge 6 7 8 9 10 11 a 12 13 14 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28