Wright v. Director of Corrections

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUL 18 2011
MOLLY C. DWYER, CL
U .S. C O U R T OF APPE A
DELANO LARTEL WRIGHT, No. 07-55988
Plaintiff - Appellant, D.C. No. CV-04-01873-IEG
v.
MEMORANDUM *
DIRECTOR OF CORRECTIONS; K.
GRADY, Correctional Sergeant; J. M.
GUZMAN, Correctional Officer; J.
HAWKES, Correctional Officer;
GASGOHIA, Correctional Officer; R.
DAVIS, Correctional Lieutenant; R.
JOHNSON, Correctional Sergeant,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted May 11, 2011
San Francisco, California
Before: GOULD and M. SMITH, Circuit Judges, and GERTNER, District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Nancy Gertner, United States District Judge for the District
of Massachusetts, sitting by designation.
Prison inmate Delano Lartel Wright ("Wright") sued various correctional
officers at Calipatria State Prison ("Calipatria") pursuant to 42 U.S.C. § 1983,
alleging that they violated his rights under the Eighth Amendment by employing
excessive force against him and failing to protect him from such force, as well as
his rights under the First Amendment by retaliating against him for filing a prison
grievance. Proceeding pro se, Wright alleged in his handwritten complaint that,
after he raised concerns about the improper manner in which correctional officers
were searching his cell, one of the defendants, Sergeant K. Grady ("Grady"),
forced Wright, handcuffed and wearing nothing other than his underpants, into the
yard and then strangled him, all the while slamming Wright's head against a wall.
Wright further alleged that other correctional officers—Defendants Officer
Gasgonia ("Gasgonia"), Officer J. M. Guzman ("Guzman"), and Officer H.
Hawkes ("Hawkes")—were present while Wright was being abused but failed to
intervene on his behalf.
Wright filed a grievance and soon thereafter was summoned to speak with
Defendants Lieutenant Davis ("Davis") and Sergeant R. Johnson ("Johnson").
Davis and Johnson allegedly threatened to put Wright in administrative segregation
(commonly known as solitary confinement or "The Hole") and confiscate his
personal property unless he recanted. A few weeks later, Wright was transferred to
-2-
a higher security prison. Wright claims that the transfer was in retaliation for
pursuing his grievance against the officers.
The district court denied Wright's request for the appointment of counsel and
later granted Defendants' motion for summary judgment, dismissing all of Wright's
claims. We now reverse with respect to the appointment of counsel, the Eighth
Amendment claims, and the First Amendment claims insofar as they deal with the
alleged threat to put Wright in solitary confinement and confiscate his personal
property unless he recanted.
I. Eighth Amendment Claims
The district court dismissed Wright's Eighth Amendment claims for
excessive force and failure to protect him based on what it characterized as the lack
of evidence of any physical injury. It did not consider whether the force that Grady
and other officers applied was required by the circumstances. As both sides now
agree, in so holding, the district court applied the wrong legal standard. See
Wilkins v. Gaddy, 130 S. Ct. 1175 (2010).
Defendants "concede that a triable issue of fact exists concerning Wright's
claim that Defendant Grady used excessive force against him by choking him and
that Defendants Gasgonia, Guzman, and Hawkes failed to intervene to stop this use
of force." Red Br. 1-2. We agree and remand for a jury determination of Wright's
-3-
Eighth Amendment claims under the Wilkins standard.
II. First Amendment Retaliation Claims
Prisoners have a First Amendment right to file prison grievances. Bruce v.
Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). Retaliation against prisoners for their
exercise of this right is itself a constitutional violation, prohibited as a matter of
"clearly established law." Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). In
Rhodes v. Robinson, we set forth the five elements of a "viable claim of First
Amendment retaliation" in the prison context: "(1) [a]n assertion that a state actor
took some adverse action against an inmate (2) because of (3) that prisoner’s
protected conduct, and that such action (4) chilled the inmate’s exercise of his First
Amendment rights, and (5) the action did not reasonably advance a legitimate
correctional goal." 408 F.3d 559, 567–68 (9th Cir. 2005).
Wright's claims identify two different occasions when Defendants allegedly
violated his First Amendment rights: when Johnson and Davis threatened to place
Wright in "The Hole" and take away his personal property—which would require
him to re-purchase those items—unless he withdrew his grievance,1 and when
1
In his deposition, Wright admitted that only Davis threatened him. See SER 82.
However, Johnson was in the room with Davis and, apparently, did not convey
disagreement with Davis' statements.
-4-
Wright was transferred to a higher-security facility supposedly as punishment for
pursuing the grievance.
A. No Waiver
As a preliminary matter, Defendants assert that Wright abandoned his First
Amendment claims by failing to oppose the First Amendment arguments raised in
Defendants' motion for summary judgment. We disagree. In the Argument section
of his summary judgment reply brief, Wright chronicled what happened when he
filed a grievance, noting that "Lieutenant Davis used intimidating tactics of saying
that plaintiff and inmate Weathers would be placed in administrative segregation
out of sight from the general population unless plaintiff and inmate Weathers
recanted statements of excessive force." SER 242. Affording Wright's brief the
liberal construction owed to the pleadings of a pro se inmate, we read Wright's
response as an opposition to both the First Amendment and Eighth Amendment
aspects of Defendant's motion for summary judgment. See Thomas v. Ponder, 611
F.3d 1144, 1150 (9th Cir. 2010) (affirming that "courts should construe liberally
motion papers and pleadings filed by pro se inmates and should avoid applying
summary judgment rules strictly"). Accordingly, Wright has not waived his First
Amendment claims.
B. Davis/Johnson Threat
-5-
The district court neglected to address the Davis/Johnson threat prong of
Wright's First Amendment claims. As such, we remand for the district court to
consider this issue in the first instance.
C. Transfer Claim was Properly Dismissed
With respect to Wright's allegation of a retaliatory transfer, the district court
properly found for the Defendants. As Wright himself concedes, his transfer claim
is based completely on circumstantial inferences of retaliation—inferences from
the timing of his transfer, from statements by unnamed officials that his
psychological status did not require him to have been transferred, and from the
allegation that Davis and Johnson had previously threatened to punish him if he
refused to recant. The timing, however, is off; Wright was transferred two months
after he filed his grievance and stayed at High Desert for over a year. Furthermore,
Wright has not identified any particular Defendant who may have been even
remotely involved in the classification committee's decision to transfer him. Nor
has he undermined the prison's purported rationale for classifying him with
psychiatric needs that Calipatria could not accommodate. In other words, as the
district court found, Wright "has failed to produce evidence sufficient to show that
any of the named Defendants acted in the absence of a legitimate penological
goal." SER 299.
-6-
In contrast, Defendants have submitted direct evidence to rebut Wright's
inferences. Defendants testified that they had no involvement in transferring
Wright to High Desert State Prison, that transfers occur only if a "classification
committee" recommends it, and that none of the Defendants were on the
classification committee that recommended Wright's transfer. Under the
circumstances, the district court properly granted summary judgment on Wright's
retaliatory transfer claim.
III. Appointment of Counsel
Wright claims that the district court abused its discretion by denying his
request for the appointment of counsel pursuant to 28 U.S.C. § 1915. In the instant
case, the district court recited the correct standard but failed to apply it. While
there is no constitutional right to appointed counsel in civil-rights cases, Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other
grounds, 154 F.3d 952 (9th Cir. 1998), in exceptional circumstances, the court may
request counsel to voluntarily provide representation, 28 U.S.C. § 1915(e)(1). In
deciding whether to appoint counsel pursuant to 28 U.S.C. § 1915, the district
court must evaluate both the likelihood of success on the merits and the ability of
the petitioner to articulate his claims pro se in light of the complexity of the legal
issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) ("Neither
-7-
of these factors is dispositive and both must be viewed together before reaching a
decision.") (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986));
see Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (concerning appointment
of counsel for a habeas petitioner) (citing Maclin v. Freake, 650 F.2d 885, 887–88
(7th Cir. 1981)). In denying Plaintiff's motion, the district court ignored the
likelihood of success factor, deciding only that Wright "does appear to have a
sufficient grasp of his case, the legal issues involved, and is able to adequately
articulate the factual basis of his case." AER 15.
Under the correct legal standard, Wright is entitled to the appointment of
counsel. Moreover, since we are reversing the district court's grant of summary
judgment on Wright's excessive force claim, there will be a trial, which would
surely tax Wright's abilities.
IV. Conclusion
The district court's denial of Wright's request for the appointment of counsel
is REVERSED, and its grant of summary judgment is REVERSED IN PART
and AFFIRMED IN PART. This case is REMANDED.
Each party bears its own costs.
-8-