Botts v. Sheppard

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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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.

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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).

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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

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1 The full facts of this case are aptly summarized in Judge Montenegro’s R&R (ECF No.

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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

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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,

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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

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