(PC) Guillen v. Carrillo

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 MARCOS CASEY GUILLEN, III, Case No. 1:19-cv-946-DAD-HBK

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

GRANT IN PART AND DENY IN PART

13 v. DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT1

14 D. CARRILLO,

FOURTEEN-DAY OBJECTION PERIOD

15 Defendant.

(Doc. No. 31)

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18 Pending before the Court is Defendant Carrillo’s motion for summary judgment with

19 supporting documents. (Doc. No. 31 through 31-4, MSJ). Plaintiff filed an opposition and a

20 supplemental declaration to the MSJ. (Doc. Nos. 32, 33). For the reasons stated below, the

21 undersigned recommends the district court grant in part and deny in part Defendant Carrillo’s

22 MSJ.

23 I. BACKGROUND

24 Plaintiff Marcos Casey Guillen, III (“Plaintiff” or “Guillen”), a state prisoner, initiated this

25 action in the Superior Court for California by filing a pro se complaint on April 3, 2019. (Doc.

26 No. 1 at 4-30). Defendant removed the action to this court under 28 U.S.C. § 28 U.S.C. 1441(b).

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1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302

28 (E.D. Cal. 2022).

1 (Id. at 1-2). The Court denied Plaintiff’s motion to remand the action back to the state court.

2 (Doc. Nos. 6, 9, 11).

3 On April 9, 2020, the Court screened the initial Complaint and found Plaintiff’s allegation

4 of a strip search and cell sufficiently stated a First Amendment retaliation claim under 42 U.S.C.

5 § 1983 and the Tom Bane Civil Rights Act, California Code § 52.1, against Defendant Carrillo.

6 ((Doc. No. 17 at 1-2).2 Defendant Carrillo filed his answer and affirmative defenses. (Doc. No.

7 18). After discovery and in compliance with the scheduling order (Doc. Nos. 19), Defendant

8 timely moved for summary judgment. (Doc. No. 31). In support of his MSJ, Defendant files: a

9 statement of undisputed facts (Doc. No. 31-3), portions of Plaintiff’s deposition transcript (Doc.

10 No. 31-4), which was later supplemented with Plaintiff’s complete deposition transcript (Doc.

11 Nos. 35, 36), and Defendant Carrillo’s sworn declaration (Doc No. 31-5). In summary, Carrillo

12 argues the Court should grant his MSJ because the record contains no genuine dispute of material

13 fact on either Plaintiff’s § 1983 claims or the California Bane Act claims. (See generally Doc.

14 Nos. 31-2; 31-3; 31-5). Specifically, Carrillo contends the evidence establishes that Plaintiff was

15 placed in a holding cell to calm down and the subsequent search of Plaintiffs’ cell was not

16 conducted by Carrillo. Alternatively, Carrillo asserts that he is entitled to qualified immunity.

17 (Doc. No. 31-2 at 8-11). Plaintiff filed an opposition to the MSJ supported by his own sworn

18 declaration and his supplemental sworn declaration. (Doc. Nos. 32, 33).

19 II. SUMMARY JUDGMENT STANDARD

20 Summary judgment is appropriate when there is “no genuine dispute as to any material

21 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is

22 material where it is (1) relevant to an element of a claim or a defense under the substantive law

23 and (2) would affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

24 247 (1987).

25 The party moving for summary judgment bears the initial burden of proving the absence

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2 It appears the screening order was inadvertently docketed twice as both orders appear identical and are

27 two-pages in length. (See Doc. Nos. 16, 17). For purposes of these Findings and Recommendation, the

undersigned cites to the later docketed screening order. (See Doc. No. 17).

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1 of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When

2 the moving party has met this burden, the nonmoving party must go beyond the pleadings and set

3 forth specific facts, by affidavits, deposition testimony, documents, or discovery responses,

4 showing there is a genuine issue that must be resolved by trial. See Fed. R. Civ. P. 56(c)(1);

5 Pacific Gulf Shipping Co. v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir.

6 2021). A mere “scintilla of evidence” in support of the nonmoving party’s position is

7 insufficient. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Rather, the

8 evidence must allow a reasonable juror, drawing all inferences in favor of the nonmoving party,

9 to return a verdict in that party’s favor. Id.

10 The court must view the evidence in the light most favorable to the nonmoving party.

11 Tolan v. Cotton, 572 U.S. 650, 655 (2014). It may not weigh evidence or make credibility

12 determinations. Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017). Conclusory or speculative

13 testimony in affidavits and supporting papers is insufficient to raise a genuine issue of fact and

14 defeat summary judgment. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007);

15 see Fed. R. Civ. P. 56(c)(2). Furthermore, the Ninth Circuit has “held consistently that courts

16 should construe liberally motion papers and pleadings filed by pro se inmates and should avoid

17 applying summary judgment rules strictly.” Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018)

18 (quoting Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)). While prisoners are relieved

19 from strict compliance, they still must “identify or submit some competent evidence” to support

20 their claims. Soto, 882 F.3d at 872. Plaintiff’s verified complaint may serve as an affidavit in

21 opposition to summary judgment if based on personal knowledge and specific facts admissible in

22 evidence. Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc). However, a

23 complaint’s conclusory allegations, unsupported by specifics facts, will not be sufficient to avoid

24 summary judgment. Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 922 (9th

25 Cir. 2001). And, where a plaintiff fails to properly challenge the facts asserted by the defendant,

26 the plaintiff may be deemed to have admitted the validity of those facts. See Fed. R. Civ. P.

27 56(e)(2).

28 The undersigned has carefully reviewed and considered all arguments, points and

1 authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any,

2 objections, and other papers filed by the parties. The omission to an argument, document, paper,

3 or objection is not to be construed that the undersigned did not consider the argument, document,

4 paper, or objection. Instead, the undersigned thoroughly reviewed and considered the evidence it

5 deemed admissible, material, and appropriate for purposes of issuing this Findings and

6 Recommendations on Defendant’s MSJ.

7 III. ANALYSIS

8 A. Allegations in Complaint

9 The events giving rise to the cause of action occurred on August 29, 2018, at 2:25 p.m.,

10 when Plaintiff requested to go to the law library while he was in the prison yard at California

11 State Prison, known as B-yard. (Doc. No. 1 at 6). Plaintiff was “waived” over by Defendant

12 Carrillo to be searched before he could go the law library. Defendant Carrillo told Plaintiff it was

13 “irritating for the Plaintiff to ask if the law library (on B-yard) was open.” (Id.). After Defendant

14 completed his search, Plaintiff “turned around to face [the] officer” and remarked, “there is

15 nothing wrong to ask about the law” and “also that the plaintiff had a court deadline.” (Id. at 7).

16 Again, Defendant Carrillo stated, “there was something wrong to ask if the law library was open.”

17 (Id.). Plaintiff then proceeded to take out a pen and a piece of paper stating his intent to file a

18 “602 administrative appeal complaint.” (Id.). Immediately thereafter, Carrillo asked Plaintiff to

19 turn around, he cuffed Plaintiff up, and took Plaintiff to a cell where he performed a strip search,

20 forcing Plaintiff to strip naked and squat. (Id.).

21 After being released from the holding cell at 3:45 p.m., Plaintiff returned to his cell and

22 found his locker was empty of his clothes, and his personal items and legal papers strewn over the

23 floor. (Id.). Plaintiff’s cellmate’s personal items “were untouched.” (Id.).

24 B. Undisputed Facts and Law

25 As previously stated, the undersigned considers the entire record and deems only those

26 facts true which are properly supported by evidence. The undersigned finds the following

27 material facts to be either undisputed, or, following the undersigned’s review of the evidence

28 submitted, are deemed undisputed, unless otherwise indicated. Plaintiff pursued this action

1 against one defendant: Defendant Carrillo.

2 • The incidents giving rise to the cause of action occurred on August 29, 2018, while

3 Plaintiff was in the prison yard at California Correctional Institution. (Doc. Nos.

4 31-4 at 38; 32 at 2 ¶ ¶1-2; 31-5 a 1 ¶2).

5 • Defendant Carrillo was assigned to work in the yard. (Doc. Nos. 31-5 at 1 ¶2; 32

6 at 2 ¶¶1-2).

7 • Over a hundred inmates were present in the yard at the time of the incident. (Doc.

8 Nos. 31-5 at 1 ¶2; 32 at 2 ¶¶5-6) (the total number of inmates varies from 130 as

9 reported by Plaintiff Guillen to 200 to 300 as reported by Carrillo).

10 • Inmates are permitted to go to the law library during yard time. Standard practice

11 is to wait for all inmates to come to the yard before permitting inmates to go to the

12 law library. Once all inmates are in the yard, staff then call for inmates who wish

13 to go to the law library. (Doc. 31-

14 • Before all the inmates were in the yard, Plaintiff approached Defendant Carrillo to

15 ask him if he could go to the prison law library and Carrillo told him to wait until

16 all the inmates were on the yard. (Doc. Nos. 31-4 at 32:12-13; 31-5 at 2 ¶32 at 2

17 ¶¶4-5).

18 • Approximately thirty minutes later, Plaintiff went to Carrillo a second time to ask

19 to go to the prison law library, but again Carrillo told him to wait. (Doc. Nos. 31-4

20 at 32-33:18-20, 5-9; 31-5 at 2 ¶5; 32 at 2 ¶7).

21 • A short time later, an announcement was made that the law library was opened, so

22 Plaintiff proceeded to line up behind a yellow line with other inmates requesting

23 the law library. (Doc. Nos. 31-4 at 38:13-34; 31-5 at 2 ¶¶6; 32 at 2 ¶¶8-12).

24 • Carrillo specifically selected Plaintiff for a pat-down search and at some point,

25 Plaintiff turned around and pulled out a pen and paper. (Doc. Nos. 31-4 at 40:10-

26 22; 31-5 at 2 ¶7; 32 at 2 ¶¶18-19).

27 • Carrillo thought Plaintiff appeared anxious or agitated. (Doc. No. 31-5 at 2 ¶7).

28 • Plaintiff denied he was agitated but acknowledges he was anxious. (Doc. No. 31-4

1 at 42:16-17).

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• Carrillo then handcuffed Plaintiff and brought him inside to a holding cell and

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conducted a strip search and no contraband was found. (Doc. Nos. 31-4 at 47:12-

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25; 31-5 at 2 ¶8; 32 at 3 ¶¶17-18).

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• Following the strip search, the parties do not dispute Plaintiff’s cell was subject to

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a search but both acknowledge that Defendant Carrillo did not participate in the

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cell search. (Doc. Nos. 31-5 at 3 ¶¶10-11; 31-4 at 54; 32 at 7). Plaintiff

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acknowledges in his sworn declaration that his cell was searched and trashed by

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Officer Deleo and Peña. (Doc. No. 32 at 7).

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C. Disputed Material Facts

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The following facts surrounding whether Plaintiff cooperated with the pat-down search

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and the reason Carrillo brought Plaintiff inside to conduct the strip search are disputed.

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• Per Carrillo: Plaintiff appeared to want to avoid the pat down search, was agitated

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and anxious. (Doc. No. 31-5 at 2 ¶7). Based on Plaintiff’s demeanor, Carrillo

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believed Plaintiff was hiding contraband. (Doc. No. 31-5 at 2 ¶7-8). Carrillo

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claims Plaintiff turned around during the pat-down search. Based upon standard

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practice, when an inmate subject to a pat down search becomes agitated,

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confrontational, argumentative, or engages in potentially threatening behavior, it is

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standard practice to place the inmate in handcuffs and place them in a holding cell

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to calm down, followed by a strip search. (Id.). Carrillo states this is because

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inmates who behave this way often do so when carrying contraband. (Id. at 2 ¶8).

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Further, because there are at least one-hundred inmates on the yard at one time and

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only four or five correctional guards, Carrillo believed it was necessary to remove

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Plaintiff from the yard to a holding cell “to de-escalate the situation before a

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potential physical confrontation occurs.” (Id. at 1-2, ¶¶2, 7-8). Thus, Carrillo

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escorted Plaintiff out of the yard to a holding cell and conducted an unclothed

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body search to preserve institutional order and security. (Id. at 3 ¶9).

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1 • Per Plaintiff: he cooperated with the pat down search on the yard. (Doc. No. 31-4

2 at 40:20-22). Plaintiff acknowledges he was anxious, but explains his anxious

3 demeanor was because he wanted to go to the law library because he had a

4 deadline in another case. (Id. at 42:16-17). Plaintiff alleges Carrillo specifically

5 called him over for a pat-down search despite there being five other inmates

6 waiting in line to go to the law library and was confrontational during the search.

7 (Id. at 42:10-13; Doc. No. 32 at 7). In his deposition, Plaintiff states that he did

8 not turn around until after Carrillo completed the pat-down search. Plaintiff also

9 claims that during pat-down search Carrillo initiated the discussion about the law

10 library. Also in his deposition, Plaintiff states he was cuffed up immediately after

11 he informed Carrillo that he was writing a 602-inmate appeal on him. This is

12 consistent with the Complaint, wherein Plaintiff alleged Carrillo strip searched him

13 in retaliation for taking down Carrillo’s name and telling him he was going to file

14 an inmate grievance on him and because he wanted to go to the law library

15 because he was under a deadline. (Doc. No. 1 at 7). In his declaration, Plaintiff

16 claims in response to Plaintiff’s interrogatories Carrillo admitted that “Plaintiff’s

17 statement that he was going to submit an inmate appeal (602 complaint) was made

18 prior to [him] being placed in handcuffs” (Doc. No. 21 at 7) (citing Defendant’s

19 response to interrogatories, set two, no. 6)3; see also (Doc, Nos. 32 at 7; 33 at 1).

20 D. First Amendment Retaliation

21 To prevail on a claim of retaliation under the First Amendment, a plaintiff must show five

22 requisite elements: (1) he or she engaged in a protected conduct; (2) defendant took adverse

23 action against the plaintiff; (3) a causal connection between the adverse action and the protected

24 conduct; (4) the official’s acts would chill a person of ordinary firmness from future exercise of

25 First Amendment rights; and (5) the action did not reasonably advance a legitimate correctional

26 goal. See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); see also Rhodes v. Robinson,

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28 3 Plaintiff, however, does not attach a copy of Carrillo’s answer to the cited interrogatory.

1 408 F.3d 559, 567-68 (9th Cir. 2005).

2 Filing an inmate grievance is protected conduct. Rhodes, 480 F.3d at 568. Threatening to

3 file an inmate grievance has also been deemed protected conduct under the First Amendment.

4 See Gleason v. Placensia, Case No. 1:19-cv-539-LJO-EPG, 2020 WL 3497001, at *3 (E.D. Cal.

5 2020) (citations omitted) (noting courts have deemed asking to obtain grievances or threatening to

6 file grievances within the purview of protected First Amendment activity). Regarding the second

7 element, adverse action taken against the prisoner “need not be an independent constitutional

8 violation. The mere threat of harm can be an adverse action.” Watison, 668 F.3d at 1114

9 (internal citations omitted). The causal connection between the adverse action and the protected

10 conduct can be inferred from an allegation of a chronology of events. Pratt v. Rowland, 65 F.3d

11 802, 806 (9th Cir. 1995). But, depending on the facts presented, mere timing of events may not

12 be sufficient to establish causation. (Id.).

13 1. Incidents on the Yard

14 On the day of the incident, Carrillo attests under oath that the recreation yard had 200-300

15 inmates and only a handful of correctional officials. (Doc. Nos. 31-2 at 2-3). Plaintiff does not

16 present any facts to dispute the number of inmates on the yard and the limited number of

17 correctional officials but in his deposition estimated that the yard had at least 130 inmates. Both

18 parties acknowledge that there were only between six and eight guards in the yard at this time.

19 Carrillo explains that Plaintiff’s anxious demeanor caused his suspicion to arise that Plaintiff may

20 be hiding contraband. Carrillo further attests and Plaintiff does not dispute, that an agitated

21 inmate on the yard is a security concern considering the number of inmates on the yard and the

22 limited number of correctional officials. While Plaintiff acknowledges he had an “anxious”

23 demeanor on the yard on the day of the incident, he explains he was anxious to get to the law

24 library because he had a deadline in his other case and was having difficulties being able to get to

25 the law library. Plaintiff also claims Carrillo was confrontational and sets forth a sequence of

26 events: he twice asked Carrillo about when it would be time to go to the law library, when he

27 lined up after a call was made to go to the law library, Carrillo signaled him out for a pat-down

28 search, during the search Carrillo made comments about Plaintiff asking to go to the law library,

1 after Plaintiff fully complied with the pat-down search and turned around and took out his paper

2 and pen and advised Carrillo that he was going to file an 602 inmate appeal on him, Carrillo

3 cuffed him up and escorted inside to a cage and conducted a further strip search on him, making

4 him strip and squat and Plaintiff was unable to go to the law library.

5 It is unequivocable that both Plaintiff’s actions in filing an inmate grievance or a request

6 for access to the law library in reference to a civil rights complaint filed against another

7 correctional officer are both protected activities under the First Amendment. See Rhodes, 408

8 F.3d at 567 (right to file prison grievances and civil rights complaints). Nor does Defendant

9 Carrillo dispute that Plaintiff was engaged in protected conduct. (Doc. No. 31-2).

10 Defendant disputes that any adverse action was taken because Carrillo asked to go to the

11 law library or threatened to file a 602-inmate grievance and instead argues the cuffing of Plaintiff

12 and subsequent strip search was in furtherance of legitimate institutional goals because he

13 believed by Plaintiff’s demeanor that Plaintiff was hiding contraband. Plaintiff points to the above

14 sequencing of events and notes that Carrillo took the action immediately after they exchanged

15 words during the pat-down search about going to the law library and right after Plaintiff took out

16 a piece of paper to write down Carrillo’s name to file a 602-grievance appeal.

17 Preserving institutional order and security are clearly legitimate penological interests that,

18 if in fact were the motivation behind Carrillo’s actions, will defeat a retaliation claim. See

19 Barnett v. Centoni, 31 F. 3d 813, 815 (9th Cir, 1994); Bruce v. Ylst, 351 F.3d 1283-89-90 (9th

20 Cir. 2003). The record, however, contains a genuine dispute of material fact that the action

21 Carrillo took, specifically identifying Plaintiff for a pat-down search in the yard prior to law

22 library access and his subsequent cuffing and strip search in a holding cell, was done for

23 legitimate correctional goals, or was done in retaliation. The intent behind Carrillo’s actions that

24 day is a credibility determination and one the Court cannot make. See Trap v. United States,

25 Case No. 13-00003-DMG, 2017 WL 8793328, at *27 (C.D. Cal. Oct. 13, 2017) (reviewing

26 retaliation claim, among others, determining issue remaining was credibility determination for the

27 jury).

28 There are other uncontroverted facts and factual discrepancies upon which a reasonable

1 jury could infer that Defendant Carrillo had a retaliatory motive when he escorted Plaintiff and

2 conducted a strip search of Plaintiff. Both parties acknowledge that Plaintiff lined-up with other

3 inmates who wanted to go to the law library. Plaintiff does not dispute correctional officers

4 conduct random pat down searches before inmates leave the yard to attend the law library.

5 However, nothing in the current record suggests that all inmates were subject to a pat down

6 search before going from the yard to the law library. Instead, out of those inmates in line for the

7 law library, only certain inmates were selected for a pat down search. And not only was Plaintiff

8 selected for the pat down search—it was Carrillo who chose him out of the line-up for the pat

9 down search. Thus, the timing of events discussed above raise a question as to the intent leading

10 to Carrillo’s actions in cuffing Plaintiff and escorting him for a strip search. See Pratt, 65 F.3d at

11 808 (recognizing that timing can be circumstantial evidence of intent).

12 For the reasons stated above, the undersigned find that while Carrillo may have been

13 justified in cuffing up Plaintiff and conducting the strip search, Plaintiff has presented sufficient

14 evidence from which a reasonable jury could conclude that Carrillo’s actions was a pretext for

15 retaliation, i.e., subjecting Plaintiff to being cuffed, strip searched and prohibiting him from

16 accessing the law library, because Plaintiff continued to ask him to go to the law library in

17 connection with a pending civil rights action against another correctional officials and/or because

18 Plaintiff told him he was filing a 602-inmate appeal.

19 The record also contains a question of fact on the chilling effect of a strip search. Both pat

20 down searches and strip searches occur in prisons, usually for purposes of maintaining the

21 security and safety of correctional staff and inmates alike. Bell v. Wolfish, 441 U.S. 520, 540

22 (1979) (upholding strip searches of pretrial detainees because correctional officials have an

23 obligation to maintain jail security and restraints that are reasonably related to maintain jail

24 security, without more, is not unconstitutional); see also Bull v. City and County of San

25 Francisco, 595 F.3d 964, 976 (9th Cir. 2010) (affirming strip search policy that did not require

26 individualized reasonable suspicion before searching at San Francisco County Jail under the

27 Fourth Amendment due to importance of maintaining security and preventing contraband

28 smuggling and limited to visual inspection). Plaintiff acknowledges during his incarceration he

1 has been subjected to strip searches in the past, sometimes once a year. (Doc. No. 36 at 51-52).

2 The First Amendment inquiry asks, “whether an official’s acts would chill or silence a

3 person of ordinary firmness from future First Amendment activities.” It is unclear on this record

4 whether Carrillo’s response to Plaintiff in fact chilled his speech. Rhodes, 408 F.3d at 568-69

5 (citing Mendocino Environmental Cty v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir.

6 1999)). “[A] plaintiff must provide evidence showing that ‘by his actions [the defendant]

7 deterred or chilled [the plaintiff’s] political speech and such deterrence was a substantial or

8 motivating factor in [the defendant’s] conduct.’” Mendocino Environmental Cty, 192 F.3d at

9 1300. The question presented is whether it is demonstrated that defendant “intended to interfere”

10 with a plaintiff’s free speech. (Id.) (emphasis in original).

11 Here, Plaintiff appears to have proceeded in filing inmate grievances and ultimately

12 initiated the instant lawsuit against Carrillo in state court. (Doc. No. 1 at 4-8). This presents the

13 proverbial Catch-22 discussed in Rhodes regarding inmates who file a complaint on the retaliation

14 who then cannot then prove the retaliation claim.

15 Because the undersigned finds a dispute of material fact on the other elements, likewise

16 the undersigned finds a dispute of material fact as to whether a strip search would chill or silence

17 a person of ordinary firmness from future First Amendment activities. See McMillan v. Ringler,

18 No. 213CV0578MCEKJNP, 2018 WL 497374, at *8 (E.D. Cal. Jan. 22, 2018), report and

19 recommendation adopted, No. 213CV0578MCEKJNP, 2018 WL 888469 (E.D. Cal. Feb. 14,

20 2018) (because a dispute of fact remained on whether search for cell phones a pretext for

21 retaliation court declined to find the searches would not silence a person of ordinary firmness

22 from future First Amendment activities). Therefore, because the issues revolve around credibility

23 determinations which are better suited for a jury, the undersigned recommends the Court deny

24 Defendant’s motion for summary judgment on the First Amendment retaliation claim related to

25 the strip search.

26 2. Cell Search and Trashing of Plaintiff’s Cell

27 Plaintiff also alleged retaliation in connection with the search and trashing of his cell that

28 occurred the same day. The Constitution permits random searches of cells and in fact cell

1 searches have been commented to be “the most effective weapon of the prison administrator in

2 the constant fight against the proliferation of knives and guns, illicit drugs, and other contraband.”

3 Hudson v. Palmer, 468 U.S. 517, (1984). Here, unlike Hudson, Plaintiff contends his cell was

4 targeted and trashed, so the search was akin to harassment.

5 Title 42 U.S.C. § 1983 provides “every person who, under color of any statute of any

6 state. . . subjects, or causes to be subjected, any citizen of the United States or other person

7 within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured

8 by the Constitution and laws, shall be liable to the party injured . . ..” Id. “A person ‘subjects’

9 another to the deprivation of a constitutional right, within the meaning of section 1983, if he [or

10 she] does an affirmative act, participates in another’s affirmative acts, or omits to perform an act

11 which he is legally required to do that causes the deprivation of which complaint is made.”

12 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In other words, liability arises under § 1983

13 when the official personally participates in the alleged violation or sets into motion a series of

14 acts by others which the actor knows or reasonably should know would cause others to inflict

15 constitutional injury. Id.

16 The undisputed facts of record, however, show Carrillo was not involved in the search of

17 Plaintiff’s cell. (Doc. Nos. 31-2 at 7; 31-5 at 3 ¶¶10-11; 31-4 at 54). Plaintiff admits that his cell

18 was “trashed by Officers Peña and Deleo.” (Doc. No. 32 at 4). Plaintiff claims in his opposition

19 that Carrillo admitted he spoke with Sergeant Gentry about the yard incident, and he states that

20 Gentry then directed the two Officers to trash the cell. (Doc. No. 32 at 1). While Carrillo admits

21 he spoke to Gentry, he states it was only to advise Gentry that he had placed Plaintiff into the

22 holding cell, after which Gentry told him he would speak with Plaintiff and release him back to

23 his housing unit. (Doc. No. 31-5 at 3, ¶ 10). During his deposition, Plaintiff testified that “he did

24 not know why” Carrillo would tell Gentry to search his cell, but surmised it was because he was

25 angry. (Doc. No. 31-4 at 54). At most, Plaintiff speculates that Carrillo told Gentry, who then

26 allegedly told Officers Peña and Deleo, to trash Plaintiff’s cell. Plaintiff provides no evidence to

27 support this speculation or dispute Carrillo’s evidence that he had nothing to do with either

28 searching of the cell or directing anyone else to search the cell. (See supra at 4) (noting that a

1 non-moving party must go beyond the pleadings and set forth specific facts, by affidavits,

2 deposition testimony, documents, or discovery responses, showing there is a genuine issue that

3 must be resolved by trial). Thus, the undersigned recommends Defendant Carrillo’s MSJ be

4 granted as to the First Amendment retaliation claim stemming from the search and trashing of

5 Plaintiff’s cell.

6 E. Qualified Immunity to claims under § 1983

7 In the alternative, Defendant Carrillo asserts the defense of qualified immunity. (Doc. No.

8 31-2 at 8-10). Qualified immunity shields government officials from money damages unless their

9 conduct violated “clearly established statutory or constitutional rights.” Kisela v. Hughes, 138 S.

10 Ct. 1148, 1152 (2018); accord Felarca v. Birgeneau, 891 F.3d 809, 815 (9th Cir. 2018). To

11 overcome the heavy burden of qualified immunity, Plaintiff must show that “(1) the official

12 violated a statutory or constitutional right, and (2) that the right was clearly established at the time

13 of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

14 “To be clearly established, a legal principle must have a sufficiently clear foundation in

15 then-existing precedent,” as shown in “controlling authority or a robust consensus of cases of

16 persuasive authority.” District of Columbia v. Wesby, 138 S. Ct. 577, 589-90 (2018). “It is not

17 enough that the rule is suggested by then-existing precedent. The precedent must be clear enough

18 that every reasonable official would interpret it to establish the particular rule the plaintiff seeks

19 to apply.” Id. at 590. The legal standard at issue must also have a high “degree of specificity.”

20 Mullenix v. Luna, 136 S. Ct. 305, 309 (2015). Courts must not “define clearly established law at

21 a high level of generality, since doing so avoids the crucial question whether the official acted

22 reasonably in the particular circumstances that he or she faced.” Wesby, 138 S. Ct. at 590. A

23 legal principle is too broad if the unlawfulness of an official’s conduct “does not follow

24 immediately from the conclusion that [the rule] was firmly established.” Id. (quoting Anderson v.

25 Creighton, 483 U.S. 635, 640-41 (1987)).

26 Here, taking the facts in the light most favorable to Plaintiff, he has stated a claim for the

27 violation of his First Amendment right to be free from retaliation for engaging in protected

28 activity—the threat of filing a prison grievance. See Watison, 668 F.3d at 1114. Second, the law

1 at the time of the challenged conduct clearly established that retaliation in response to the threat

2 of filing prison grievances was unlawful. See Pratt, 65 F.3d at 806 & n.4 (stating “[t]he

3 prohibition against retaliatory punishment [for filing prison grievances] is ‘clearly established

4 law’ in the Ninth Circuit, for qualified immunity purposes.”). “The most fundamental of the

5 constitutional protections that prisoners retain are the First Amendment rights to file prison

6 grievances and to pursue civil rights litigation in the courts, for ‘[w]ithout those bedrock

7 constitutional guarantees, inmates would be left with no viable mechanism to remedy prison

8 injustices.’” Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017) (quoting Rhodes, 408 F.3d

9 at 567) (“[I]t was, of course, clearly established when [plaintiff] filed his grievances . . . that he

10 had the ‘constitutional right’ to do that.”).

11 Defendant Carrillo argues he did not violate Plaintiff’s rights and acted reasonably, so he

12 is entitled to qualified immunity. (Doc. No. 31-2 at 9). Carrillo also argues that based on the

13 facts presented, it would not have been clear to a reasonable official that his actions were

14 unlawful under the circumstances when faced with an inmate who “became anxious, repeatedly

15 asking to go to the law library in spite of being told he needed to wait until all inmates had arrived

16 on the yard.” (Id.).

17 As discussed above, triable issues of fact exist as to whether Carrillo strip searched

18 Plaintiff in retaliation for his request to use to the law library and/or threatening to file a prison

19 grievance, or for a legitimate correctional goal after Carrillo observed Plaintiff’s behavior on the

20 yard. In the event Defendant’s motive was to retaliate when he conducted a strip search of

21 Plaintiff, the right to be free from such retaliation is clearly established law. Accordingly,

22 Defendant is not entitled to qualified immunity on Plaintiff’s First Amendment retaliation claim.

23 F. Pendent State Law Claim

24 The federal court has pendent jurisdiction over a state claim where there is a claim arising

25 under the U.S. Constitutions or laws of the United States, and there is a relationship between that

26 federal claim and the state claim. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725

27 (1966). Here, this Court has pendent jurisdiction over the Bane Act claim because the action

28 removed to this Court set forth a claim under 42 U.S.C. § 1983 for retaliation under the First

1 Amendment.

2 The Tom Bane Civil Rights Act, Cal. Civ. Code § 52.1 civilly protects individuals from

3 conduct aimed at interfering with rights that are secured by federal or state law, where the

4 interference is carried out “by threats, intimidation or coercion.” Reese v. County of Sacramento,

5 888 F.3d 1030, 1040-41 (9th Cir. 2018). To state a claim under the Bane Act, a plaintiff must

6 allege “(1) interference with or attempted interference with a state or federal constitutional or

7 legal right, and (2) the interference or attempted interference was by threats, intimidation, or

8 coercion.” Lull v. Cty. of Sacramento, No. 217CV1211TLNEFBPS, 2019 WL 1014592, at *7

9 (E.D. Cal. Mar. 4, 2019), report and recommendation adopted, No. 217CV01211TLNEFB, 2019

10 WL 1429577 (E.D. Cal. Mar. 29, 2019) (citations omitted). Qualified immunity is not available

11 for claims brought under section 52.1. Reese, 88 F.3d at 1041.

12 The Bane Act proscribes conduct by any person, “whether or not acting under color of

13 law,” who “interferes by threats, intimidation, or coercion, or attempts to interfere by threats,

14 intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of

15 rights secured by the Constitution or laws of the United States, or of the rights secured by the

16 Constitution or laws of this state....” Cal. Civ. Code § 52.1(a). The Bane Act permits the

17 government, or an individual, to bring a civil action for damages, injunctive relief, or equitable

18 relief to protect the peaceable exercise or enjoyment of the right or rights secured. Id.

19 “To obtain relief under Civil Code section 52.1, a plaintiff need not allege the defendant

20 acted with discriminatory animus or intent; a defendant is liable if he or she interfered with the

21 plaintiff’s constitutional rights by the requisite threats, intimidation, or coercion.” O’Toole v.

22 Superior Court, 140 Cal. App. 4th 488, 502 (2006) (citing Venegas v. Cnty. of Los Angeles, 32

23 Cal. 4th 820, 841-43 (2004)). Section 52.1 “require[s] an attempted or completed act of

24 interference with a legal right, accompanied by a form of coercion.” Jones v. Kmart Corp., 17

25 Cal. 4th 329, 334 (1998) (citations omitted). “The essence of a Bane Act claim is that the

26 defendant, by the specified improper means (e.g., threats, intimidation or coercion), tried to or did

27 prevent a plaintiff from doing something he or she had the right to do under the law or to force

28 the plaintiff to do something that he or she was not required to do under the law.” Shoyoye v.

1 Cnty. of Los Angeles, 203 Cal. App. 4th 947, 956 (2012) (citations and internal quotation marks

2 omitted). “Technically, whether a constitutional violation occurred and whether that violation

3 was accompanied by any threats, intimidation or coercion are separate analytical inquiries (albeit

4 with intertwining facts).” Barsamian v. City of Kingsburg, 597 F. Supp. 2d 1054, 1057 (E.D. Cal.

5 2009).

6 Defendant Carrillo argues that because his actions were done for legitimate penological

7 purposes there is no evidence that he attempted to “interfere by threats, intimidation, or coercion

8 with the exercise by Guillen of his rights.” (Doc. No. 31-2 at 8). Because the undersigned has

9 found a genuine dispute of material fact exists as to the intent behind Carrillo’s actions and

10 whether he strip searched Plaintiff in retaliation for threatening to file an inmate grievance, the

11 undersigned must likewise find a genuine dispute of material fact exists on Plaintiff’s Bane Act

12 claim as to the strip search claim. The same facts supporting Plaintiff’s First Amendment

13 retaliation claim support a Bane Act claim. See McMillian, 2018 WL 497374, at *18 (finding

14 when facts supporting First Amendment retaliation claim are disputed, similar dispute remains on

15 Bane Act claims).

16 Accordingly, it is RECOMMENDED:

17 Defendant’s motion for summary judgment (Doc. No. 31) be GRANTED in part and

18 DENIED in part. The motion be GRANTED with respect to Plaintiff’s First Amendment

19 retaliation claim and Bane Act claim involving the search and trashing of Plaintiff’s cell but

20 DENIED with respect to Plaintiff’s First Amendment retaliation claim and Bane Act claim

21 involving Plaintiff’s strip search claim.

22 NOTICE TO PARTIES

23 These findings and recommendations will be submitted to the United States district judge

24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)

25 days after being served with these findings and recommendations, a party may file written

26 objections with the court. The document should be captioned “Objections to Magistrate Judge’s

27 Findings and Recommendations.” Parties are advised that failure to file objections within the

28 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

1 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).

2

>| Dated: _ March 28, 2022 ooo. WN fereh fackt

4 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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