Botts v. Sheppard

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 D’RON BOTTS, Case No.: 19cv1387 DMS (RBM) 12 Plaintiff, ORDER ADOPTING AND 13 v. SUPPLEMENTING REPORT AND RECOMMENDATION, AND 14 CORRECTIONAL OFFICER DENYING DEFENDANTS’ MOTION SHEPHERD, et al., 15 FOR SUMMARY JUDGMENT Defendants. 16 17 18 Before the Court is United States Magistrate Judge Ruth Bermudez Montenegro’s 19 Report and Recommendation (“R&R”) recommending that the Court deny Defendants’ 20 motion for summary judgment. There are no objections to the R&R. For the reasons set 21 forth below, this Court adopts and supplements the R&R, and denies the motion for 22 summary judgment in its entirety. 23 I. 24 INTRODUCTION 25 Plaintiff D’Ron Botts (“Plaintiff”) is a state prisoner proceeding in forma pauperis 26 and represented by counsel. (ECF Nos. 1–3, 6.) He brings an action under the Civil Rights 27 Act, 42 U.S.C. § 1983, against several Correctional Officers, and a former Warden, at 28 Richard J. Donovan Correctional Facility (“Donovan”). (ECF No. 8.) Plaintiff alleges 1 retaliation in violation of the First Amendment, failure to protect under the Eight 2 Amendment, negligence, and a violation of civil rights under California’s Bane Act. (Id.) 3 On June 11, 2021, Defendants filed a motion for summary judgment. (ECF No. 43.) 4 Plaintiff filed an opposition (ECF No. 62), and Defendants filed a reply. (ECF No. 70.) 5 On January 13, 2022, Magistrate Judge Ruth Bermudez Montenegro issued a Report 6 and Recommendation ("R&R") on the present motion, recommending that it be denied. 7 (ECF No. 75.) No party has filed objections to the R&R, and the time for doing so has 8 expired. 9 A. Standard of Review 10 The duties of the district court in connection with a magistrate judge’s R&R are set 11 forth in Rule 72(b)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). 12 See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(c). The district court must “make a de 13 novo determination of those portions of the report … to which objection is made[,]” and 14 “may accept, reject, or modify, in whole or in part, the findings or recommendations made 15 by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c). 16 While no objections to the R&R were filed, the Court conducted a de novo review 17 and agrees with the Magistrate Judge that the summary judgment motion ought to be denied 18 as to the Eighth Amendment, negligence, and Bane Act claims, as well as to the First 19 Amendment retaliation claim on the question of protected speech. The Court also agrees 20 that Defendants are not entitled to summary judgment on the First Amendment retaliation 21 claim based on qualified immunity, and supplements the analysis of the R&R on that issue 22 below. 23 II. 24 DISCUSSION 25 A. Summary Judgment 26 Summary judgment is appropriate if “there is no genuine issue as to any material 27 fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 28 56(a). The moving party has the initial burden of demonstrating that summary judgment 1 is proper by “showing the absence of any genuine issue of fact.” Adickes v. S.H. Kress & 2 Co., 398 U.S. 144, 153 (1970). If the moving party meets its burden, the burden then shifts 3 to the opposing party to show that summary judgment is not appropriate. Celotex Corp. v. 4 Catrett, 477 U.S. 317, 324 (1986). The opposing party’s evidence is to be believed, and 5 all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 6 U.S. 242, 255 (1986). 7 B. Qualified Immunity 8 In addition to arguments on other grounds, Defendants argue they are entitled to 9 summary judgment on Plaintiff’s First Amendment retaliation claim based on qualified 10 immunity. (ECF No. 43 at 18.) Defendants argue it is not clearly established that a 11 prisoner’s verbal comments outside of the formal grievance process is protected speech 12 under the First Amendment, and thus they are entitled to qualified immunity. (Id.) 13 “Qualified immunity attaches when an official’s conduct does not violate clearly 14 established statutory or constitutional rights of which a reasonable person would have 15 known.” Kisela v. Hughes, ___ U. S. ___, 138 S. Ct. 1148, 1152 (2018). As the focus is 16 on notice, “clearly established” in the present context means it would be clear to reasonable 17 officers at the time that their conduct violated the law. See Anderson v. Creighton, 483 18 U.S. 635, 640 (1987). While this cannot be assessed at a high level of generality, Kisela, 19 138 S. Ct. at 1152, there need not be a case directly on all fours to determine a right is 20 clearly established. It is not the case that “an official action is protected by qualified 21 immunity unless the very action in question has previously been held unlawful.” Hope v. 22 Pelzer, 536 U.S. 730, 739 (2002) (holding officials can be on notice that their conduct 23 violates established law even in novel factual circumstances and finding correctional 24 officers violated inmate’s rights by handcuffing him to a hitching post). Rather, “a general 25 constitutional rule already identified in the decisional law may apply with obvious clarity 26 to the specific conduct in question.” Id. at 741. Some cases involve “conduct so clearly 27 and obviously wrong that the conduct itself unmistakably ‘should have provided 28 [defendants] with some notice’ that their alleged conduct violated their targets' 1 constitutional rights.” Hardwick v. Cty. of Orange, 844 F.3d 1112, 1120 (9th Cir. 2017) 2 (quoting Hope, 536 U.S. at 745) (holding social workers were not entitled to qualified 3 immunity when they perjured testimony and fabricated evidence in child removal 4 proceedings.) 5 1. Retaliation for discussing prison corruption with a CDCR Director constitutes 6 ‘conduct clearly and obviously wrong’ that precludes qualified immunity. 7 While the Ninth Circuit has not addressed whether an inmate’s verbal complaints 8 about prison conditions or policy are protected by the First Amendment, the Seventh 9 Circuit has addressed the issue and concluded that an inmate’s verbal complaints outside 10 the formal grievance process are protected by the First Amendment and may provide the 11 basis for a retaliation claim. See Pearson v. Welborn, 471 F.3d 732, 740 (7th Cir. 2006) 12 (holding an inmate's verbal complaints about general prison conditions or policy of concern 13 to all prisoners are protected by the First Amendment). However, the Ninth Circuit has 14 “long recognized that a correctional officer may not retaliate against a prisoner for 15 exercising his First Amendment right to report staff misconduct” and “[a] prisoner’s 16 general right against retaliatory punishment [i]s clearly established.” Shepard v. Quillen, 17 840 F.3d 686, 688, 693 (9th Cir. 2016). And the Ninth Circuit, in harmony with many 18 other circuits, has held that an inmate’s personal prison grievances are protected by the 19 First Amendment. See Rhodes v. Robinson, 408 F.3d 559 (9th Cir.2005) (holding an 20 inmate’s personal complaints advanced through the prison grievance process and civil 21 litigation are protected by the First Amendment). Indeed, “a prison inmate retains those 22 First Amendment rights that are not inconsistent with his status as a prisoner or with the 23 legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 24 817, 822 (1974). 25 26 27 28 1 The facts of this case are unique, but the law is clear. In early October 2017, 2 Plaintiff alleges he spoke with California Department of Corrections and Rehabilitation 3 (“CDCR”) Director Brian Duffy (“Duffy”) in Plaintiff’s housing unit about alleged 4 corruption and illegal acts by officers at Donovan. (ECF No. 8 at 3; ECF No. 43 at 11– 5 12.) Duffy was visiting the prison to conduct an audit. (ECF No. 8 at 3.) Plaintiff alleges 6 the conversation took place in plain view of correctional officers and lasted fifteen to 7 twenty minutes. (ECF No. 62 at 8.) Plaintiff alleges that following his discussion with 8 Duffy, he received threats from, and ultimately was assaulted at the behest of, the 9 Defendants. (Id.) 10 Defendants cannot reasonably argue that correctional officers lack notice that they 11 would infringe an inmate’s First Amendment rights by threatening and harming the inmate 12 after the inmate complained to a supervisor about the correctional officers’ conduct. While 13 the specific facts here may not have “previously been held unlawful,” Hope, 536 U.S. at 14 739, the alleged conduct is “so clearly and obviously wrong” as to “have provided 15 [defendants] with some notice[,]” thus barring qualified immunity. Hardwick, 844 F.3d at 16 1120 (internal citation omitted). 17 2. Plaintiff’s actions can be reasonably construed as a grievance or threat of grievance, 18 which is clearly established as protected activity for retaliation purposes. 19 Further, even assuming a reasonable officer would not have found it obvious that 20 retaliation based on a prisoner’s complaints of officer corruption to a CDCR director 21 violated that prisoner’s rights, it is clearly established that a prisoner’s grievance, or threat 22 or notice of intent to file a grievance, is protected from retaliation. See, e.g., Rhodes, 408 23 F.3d 559 (noting the import of the First Amendment right to file prison grievances). “An 24 inmate's reporting of officer misconduct, or the attempt to do so verbally or in writing, 25 constitutes speech or conduct entitled to First Amendment protection. In the retaliation 26 27 1 The full facts of this case are aptly summarized in Judge Montenegro’s R&R (ECF No. 28 1 context, there is no ‘legal distinction ... between the filing of a charge which is clearly 2 protected ... and threatening to file a charge.’” Uribe v. McKesson, No. 08CV01285 DMS 3 NLS, 2011 WL 9640, at *12 (E.D. Cal. Jan. 3, 2011) (citing Gifford v. Atchison, Topeka, 4 & Santa Fe Ry. Co., 685 F.2d 1149, 1155–56 n. 3 (9th Cir.1982)) (holding a prisoner’s 5 attempt to notify a Sergeant of officers’ misconduct could reasonably be construed as an 6 attempt to initiate a grievance on summary judgment). 7 In considering a motion for summary judgment, the non-movant’s evidence is 8 credited and all reasonable inferences are drawn in their favor. Anderson, 477 U.S. at 255. 9 Plaintiff alleges that he discussed with Duffy corrupt activity by correctional officers, 10 including wrongful treatment Plaintiff himself had experienced. (ECF No. 62 at 8.) This 11 occurred in the open in Plaintiff’s housing unit, in front of other correctional officers. (ECF 12 No. 62 at 8.) Taking these facts at face value, a reasonable inference may be drawn that 13 the alleged interaction was a verbal grievance to the correctional officers’ supervisor—a 14 CDCR Director, no less—which could support a retaliation claim. See Shepard, 840 F.3d 15 686 (finding a retaliation claim where a prisoner plaintiff reported verbally to a Sergeant 16 that another officer used excessive force during an escort and the prisoner was immediately 17 placed in administrative segregation). 18 Even if discussing wrongful conduct directly with a CDCR Director—rather than 19 working through the steps of the administrative complaint process—does not constitute a 20 grievance, Plaintiff’s allegations fairly suggest that onlooking officers would view the 21 discussion by Plaintiff with Duffy as a threat of a future grievance. After relaying the 22 illegal conduct he had observed, Plaintiff alleges he took Duffy’s contact information, and 23 Duffy told Plaintiff to call him to discuss any future issues.2 (ECF No. 62 at 8.) The 24 prohibition on retaliation against one who makes verbal threats to file a grievance is clearly 25 26 27 2 Plaintiff argues he kept Duffy’s contact information and asked his family to try to contact Duffy. (ECF No. 62 at 8.) However, there is no evidence Defendants were aware of this, 28 1 established law, as Defendants concede (ECF No. 43 at 16), and thus precludes qualified 2 ||immunity under the disputed facts here. Entler v. Gregoire, 872 F.3d 1031 (9th Cir. 2017) 3 || (reversing district court’s grant of qualified immunity on retaliation claim and holding there 4 no distinction, for retaliation claim purposes, between verbal threats to file and actually 5 || filing a lawsuit or grievance); see also Garcia v. Strayhorn, No. 13-CV-807-BEN KSC, 6 2014 WL 4385410, at *6 (S.D. Cal. Sept. 3, 2014) (“a number of courts have concluded 7 ||that verbal statements made by an inmate that essentially constitute a grievance, or that 8 ||indicate an intent to file a formal written grievance, are protected by the First 9 || Amendment.”) Accordingly, Defendants have not “show[n] the absence of any genuine 10 |/issue of fact” as to qualified immunity and are thus not entitled to summary judgment on 11 |/that basis. Adickes, 398 U.S. at 153 (1970). 12 Il. 13 CONCLUSION AND ORDER 14 Having reviewed de novo the R&R, the Court adopts the R&R entirely and denies 15 |}summary judgment on the Eight Amendment, negligence, and Bane Act claims, and the 16 || First Amendment claim on grounds that Plaintiff's conduct was protected speech. The 17 ||Court supplements the R&R to deny summary judgment based on qualified immunity 18 |/regarding the First Amendment claim. Further, lines 12-13 of page 3 are amended to read: 19 || “Accordingly, all of Plaintiff's causes of action against Warden Paramo and C/O Newman 20 ||have been dismissed.” (See ECF No. 75 at 3.) The Court therefore denies Defendants’ 21 motion for summary judgment. 22 IT IS SO ORDERED. 23 ||Dated: March 14, 2022 24 em abl 35 Hon. Dana M. Sabraw, Chief Judge United States District Court 26 27 28