# Leonard v. Peters

> District Court, D. Oregon · June 16, 2021

URL: https://www.frixlaw.com/law-library/cases/10393455

## Case

- **Court:** District Court, D. Oregon
- **Decided:** June 16, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10393455

## How later opinions describe it (automated extraction)

- describing protection against “sufficiently imminent dangers”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

GLENN E. LEONARD, Case No. 2:18-cv-00893-AC

Plaintiff, OPINION AND ORDER

v.

COLLETTE PETERS, Director of the
Oregon Department of Corrections;
DAVID PEDRO, Former Operations
Captain at Two Rivers Correctional
Institution; ADAM ARCHER, Former
Correctional Lt. at Two Rivers
Correctional Institution; STEVE BRUCE,
Former TRCI Housing Sgt.; M. GIBSON,
Correctional Officer,

Defendants.

Ellen F. Rosenblum, Attorney General; Nathaniel Aggrey, Assistant Attorney General; and
Shannon M. Vincent, Senior Assistant Attorney General; Oregon Department of Justice, 1162
Court Street NE, Salem, OR 97301. Attorneys for Defendants.

IMMERGUT, District Judge.

On December 18, 2020, Magistrate Judge John V. Acosta issued his Findings and
Recommendation (“F&R”), ECF 106, recommending that this Court grant Defendants’ Motion
for Summary Judgment, ECF 87.
Judge Acosta found that any section 1983 claims against defendants in their official
capacities are barred by the Eleventh Amendment but that, with respect to individual capacity
claims, Plaintiff had sufficiently shown personal involvement. ECF 106 at 14–17. Nevertheless,
Judge Acosta found that Plaintiff did not provide sufficient evidence to demonstrate that
Defendants violated his First, Eight, and Fourteenth Amendment rights and accordingly

recommended granting summary judgment in favor of Defendants. Id. at 17–26. Alternatively,
assuming a constitutional right had been violated, Judge Acosta found that qualified immunity
applied to bar the claim. Id. at 26–28. Having recommended dismissal of Plaintiff’s section 1983
claims, Judge Acosta recommended declining to exercise supplemental jurisdiction over
Plaintiff’s remaining negligence claim. Id. at 28–29.
Plaintiff filed timely Objections to the F&R on March 5, 2021. Plaintiff’s Objections total
64 pages of briefing and 52 pages of exhibits. ECF 114; ECF 114-1. Defendants responded to
those objections on March 10, 2021 with two paragraphs, incorporating by reference their earlier
briefing. ECF 115.

This Court has reviewed de novo the portions of the F&R to which Plaintiff objected. The
Court adopts Judge Acosta’s F&R as explained and supplemented in this Opinion.
STANDARDS
Under the Federal Magistrates Act (“Act”), as amended, the court may “accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1). If a party objects to a magistrate judge’s F&R, “the court shall make a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id. But the court is not required to review, de
novo or under any other standard, the factual or legal conclusions of the F&R to which no
objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985); United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Nevertheless, the Act “does not
preclude further review by the district judge, sua sponte” whether de novo or under another
standard. Thomas, 474 U.S. at 154.
DISCUSSION
This Court has reviewed de novo the portions of the F&R to which Plaintiff objected and

adopts the F&R subject to the additional discussion below.
A. Claims against Bruce, Peters, Archer, and Pedro fail at objective prong of Eighth
Amendment claim
This Court agrees with the F&R’s Eighth Amendment analysis and writes only to
supplement that discussion as follows.
“General intimidation, harassment, and nonspecific threats, . . . although undesirable, do
not demonstrate a constitutionally intolerable risk of harm.” Chandler v. Amsberry, No. 3:08-
CV-00962-SI, 2014 WL 1323048, at *7 (D. Or. Mar. 28, 2014) (citing Williams v. Wood, 223 F.
App’x 670, 671 (9th Cir.2007)) (discussing, following bench trial, plaintiff’s allegation that he
was “subjected to implied threats through hostile stares and body language and offensive
comments”). On an Eighth Amendment deliberate indifference claim on a theory of preventing
future harm, the plaintiff must “present evidence of a specific or direct threat of imminent bodily
harm and the ability of another to effectuate that harm.” Id. at *8; see also Helling v. McKinney,
509 U.S. 25, 34 (1993) (describing protection against “sufficiently imminent dangers”).
Here, Plaintiff does not provide sufficient evidence to create a triable issue of fact on the
objective element of his Eighth Amendment claims. Plaintiff was admitted to TRCI in July 2012,

and there is no evidence of unpleasant interactions between Plaintiff and any other inmates since
then, other than in late 2016 and early 2017. See ECF 95 at 9–12 (Plaintiff’s response on this
point arguing only that he was transferred to TRCI due to gang risks at prior facility and that
TRCI housed him with that same gang; not mentioning any unpleasant interactions once at
TRCI). Once assigned to unit 7 in late 2016, Plaintiff expressed concerns to Defendants using
phrases such as “imminent danger” even before entering unit 7, based on his belief that
“historically [] non-gang members w[]ere subjected to assaults and menacing.” ECF 96-2 at 19–
21. Once Plaintiff entered unit 7, Plaintiff never reported that any harassment exceeded “faux

swings.” Id. The evidence shows that Plaintiff endured the admittedly unpleasant sort of
harassment that does not establish the objective element of an Eighth Amendment failure to
protect claim. Crump’s February 4, 2017 approach toward Leonard’s cell did not demonstrate, as
Plaintiff contends in his objections, that it was “obvious” that Crump, or any unnamed gang
member, would attack Plaintiff on February 10, 2017. ECF 114 at 13. Plaintiff did not face an
objectively substantial, or sufficiently imminent, risk of harm at that time.
After the February 10, 2017 incident, Plaintiff was transferred to unit 5 that same day,
and Crump was immediately disciplined and placed in segregation for nearly four months. ECF
96-1 at 37-45 ECF 106 at 8; ECF 88-3 at 1; ECF 88-1 at 1. Plaintiff did not report any other

threats or harassment after February 10. Plaintiff argues that beginning in June 2017, when
Crump was released from segregation and returned to unit 7, Crump had the opportunity to
attack Plaintiff when their paths crossed at call-outs (as they now lived in different units). ECF
114 at 42. This possibility, based on one non-physical and one physical incident almost four
months earlier, does not raise a genuine dispute as to whether Plaintiff endured an objectively
sufficiently serious or imminent risk of harm due to Crump.
In sum, the evidence shows that since arriving at TCRI in 2012, Plaintiff suffered only
generally unpleasant harassment in late 2016 and early 2017 by nameless individuals, and two
specific incidents in the dayroom, only one of which was physical and both of which were met
immediately with reasonable discipline. The day of the physical incident, Plaintiff was
transferred to a different unit; since then he has reported no further unpleasant interactions. The
evidence does not raise a genuine dispute of fact that Plaintiff faced an objectively substantial
risk of harm while at TRCI, nor that Defendants knew of and disregarded such a risk. See Funk
v. Schriro, No. CV08-0739-PHX-GMS (JCG), 2009 WL 4898262, at *7 (D. Ariz. Dec. 14, 2009)

(dismissing where Plaintiff averred that “while housed at CB 6, he was subjected to a ‘constant
threat of violence’” and described one incident of assault in a year-long period); cf. Galligar v.
Franke, No. 2:12-CV-01891-PK, 2015 WL 10373492, at *3 (D. Or. Dec. 28, 2015) (denying
defendant’s motion for summary judgment because of (1) defendants’ “inaction” by not
removing plaintiff from shared cell with white supremacist gang member after the latter kicked
plaintiff in the throat and plaintiff told defendants he feared for his safety, and (2) an undisputed
“long-standing dispute with various white supremacist prison gangs” that included “six physical
altercations between [plaintiff] and other inmates prior to the two [cellmate] altercations”),
report and recommendation adopted, No. 3:12-CV-01891-PK, 2016 WL 756473 (D. Or. Feb.

24, 2016); Berg v. Kincheloe, 794 F.2d 457, 462 (9th Cir. 1986) (“If the evidence only involves a
‘dispute over the . . . existence of arguably superior alternatives’” to the choice of action
defendants took, “the plaintiff has not met his burden and the case should not be presented to a
jury.”) (quoting Whitley v. Albers, 475 U.S. 312, 322 (1986)).
B. Claim 24: Fourteenth Amendment procedural due process
This Court agrees with the F&R’s Fourteenth Amendment due process discussion. ECF
106 at 22–23. The Court writes to supplement that analysis with the following independent
reason justifying a grant of summary judgment and to address a due process claim arguably
raised in Plaintiff’s Second Amended Complaint.
“The law is well established that prisoners do not have a constitutional right to a specific
prison grievance procedure, nor do they have a liberty interest in the grievance process protected
by the Due Process Clause.” Matthews v. Taylor, No. 2:16-CV-01958-SB, 2018 WL 4441524, at
*12 (D. Or. Apr. 24, 2018), report and recommendation adopted in part, rejected in part, No.
2:16-CV-01958-SB, 2018 WL 4431318 (D. Or. Sept. 17, 2018); see also Mann v. Adams, 855

F.2d 639, 640 (9th Cir. 1988) (“There is no legitimate claim of entitlement to a grievance
procedure.”); Gonzalez v. Mullen, 446 F. App’x 17, 18 (9th Cir. 2011) (“The district court
properly dismissed Gonzalez’s due process claim concerning the alleged improper processing of
his grievance because Gonzalez has no due process right to the handling of grievances in any
particular manner.”). Accordingly, Pedro’s alleged interference in the investigation of his own
misconduct does not give rise to a Fourteenth Amendment procedural due process claim.
Plaintiff also argues that Pedro prevented him from filing a timely grievance against
Bruce by not providing him with the rules governing Bruce’s job duties. ECF 114 at 37, 55 &
n.14. Plaintiff arguably alludes to this claim in his Second Amended Complaint. See ECF 76 at

21, 24–25 (alleging due process violation against Pedro based only on his “conducting a ‘sham
investigation’ into his own conduct,” but also alleging First Amendment violation by Pedro
“provid[ing] false information to Mr. Leonard that caused the Plaintiff to default on the ODOC
grievance process and a 42 U.S.C. § 1997e violation”).1 Plaintiff does not sufficiently develop or
engage with the facts of this arguable claim to raise a genuine dispute of fact at summary
judgment. For example, Plaintiff does not engage with the various exceptions to PLRA’s
exhaustion requirement where administrative remedies are “effectively unavailable.” Sapp, 623

1 The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), “requires a prisoner
to exhaust his administrative remedies before filing a lawsuit concerning prison conditions”
under section 1983. Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010) (citation omitted).
F.3d at 822–23 (discussing examples, such as where prisoner’s failure to exhaust was excused
because he “reasonably believed . . . that [prison] regulation was necessary, not merely useful, to
prepare his appeal,” and where “prison officials refuse[d] to give a prisoner the forms necessary
to file an administrative grievance”) (quotation marks and citations omitted). Plaintiff also does
not explain why Plaintiff’s prior grievance against Bruce, submitted on February 12, 2017—

before Plaintiff ever spoke to Pedro—would not satisfy the PLRA’s exhaustion requirements.
See ECF 96-2 at 22, 86–87. Plaintiff also does not explain how Pedro’s actions caused either of
the alleged harms in claim 20, defaulting on the grievance process or violating the PLRA . The
incident at issue occurred on February 10, 2017. Plaintiff’s first grievance was denied on
February 21, 2017. ECF 96-2 at 22, 87. Plaintiff first reached out to Pedro on March 30, 2017—
which was more than a month after the February 10, 2017 incident, and even more than a month
since the February 21, 2017 denial of the first grievance. See ECF 96-2 at 22–23, 87; ECF 114 at
55 n.14 (Plaintiff’s objections stating that “the inmate must file a grievance within 30 days of the
alleged condition or incident”). Indeed, Plaintiff appeared at the time to assign blame for the

tardiness of his intended second grievance to Bruce, not Pedro. See ECF 96-2 at 87 (grievance
form stating that “Bruce slow-played answering my CD214 which requested that information”
before telling Plaintiff to contact Pedro). Lastly, in the alternative, Pedro is entitled to qualified
immunity with respect to this due process claim.
C. First Amendment Retaliation
To succeed on a First Amendment retaliation claim in the prison context, a plaintiff must
prove: (1) the plaintiff engaged in protected First Amendment activity; (2) the defendant took an
adverse action against the plaintiff; (3) a causal connection exists between the plaintiff’s conduct
and the defendant’s adverse action; (4) the “official’s acts would chill or silence a person of
ordinary firmness from future First Amendment activities[;]” and (5) the defendant’s retaliatory
action did not advance the legitimate penological goals of the correctional institution. Watison v.
Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citations and internal quotation marks omitted).
The defendant’s adverse action “need not be an independent constitutional violation. The mere
threat of harm may be an adverse action. . . .” Id. (citations and internal quotation marks
omitted).

1. Claims that fail at elements one, two, three, or five.
Claims 18 and 19, which allege adverse actions taken on March 30, 2017, ECF 76 at 20–
21, fail at summary judgment. Plaintiff’s arguments and evidence establish that around March
30, 2017, Pedro did not know of—and thus could not retaliate against—Plaintiff’s prior or
intended First Amendment activity.2 Pedro asked why Plaintiff wanted his requested information
weeks later. See ECF 96-2 at 7 (Plaintiff’s memorandum of April 18, 2017 meeting, in which
Pedro “continually pushed to know why I was attempting to acquire the rules and regulations
that governed Steve Bruce’s job posting”). In his objections to the F&R, Plaintiff limits his
arguments to what Pedro learned on April 18, 2017, conceding that Pedro could not have
retaliated before that date. ECF 114 at 36–37 (objecting that the “first ‘adverse action’ was . . .

[i]n the April 18, 2017 meeting”). As to the tort notice, Plaintiff’s evidence demonstrates that
Pedro was unaware of that filing until even later. See ECF 96-2 at 10 (Plaintiff’s memorandum

2 Plaintiff also fails to raise genuine disputes of fact on the “adverse action” and
“causation” elements. There is no evidence that Pedro “reacted violently” on March 30, 2017, as
alleged in claim 18. ECF 76 at 20. Pedro and Plaintiff’s first in-person interaction occurred
weeks later. Nor does Pedro “provide[] false information” on March 30, 2017, as alleged in
claim 19. ECF 76 at 21. Plaintiff had asked “to know the rule/ODOC Policy/OAR” used for
housing assignments, and Pedro responded via message on March 31, 2017: “It isn’t a rule,
policy or OAR (that[’s] the rule). We employ the Cellmate Compliance Program whenever
possible. Unfortunately, (unlegible [sic]) we cannot for a (unlegible [sic]) of reasons. Is there
something specific your [sic] looking for?” ECF 114-1 at 20. Pedro provided the name of the
“Cellmate Compliance Program” and asked a clarifying question.
of April 24, 2017 meeting between Plaintiff and Pedro, in which Pedro “accused [Plaintiff] of
lying to him on April 19, 2017, because [Plaintiff] had not volunteered that [Plaintiff] had filed a
Tort against ODOC”).
Claims 22 and 28 fail because Plaintiff has not raised a genuine dispute of material fact
that the alleged adverse action—“withholding” the inmate conflict report (ICR) policy—did not

advance a legitimate penological objective. See ECF 76 at 23, 27 (claims 22 and 28). This Court
agrees with and adopts the F&R’s analysis of the ICR denials with respect to the penological
objective element. ECF 106 at 25-26.3 Plaintiff also fails to raise a triable issue that Defendants’
actions—denying conflict requests where at least some grounds warranted such denials—would
chill a person of ordinary firmness from future First Amendment activities.
Claims that Defendants Pedro and Archer participated in an agreement or conspiracy to
withhold the ICR policy from Plaintiff in violation of the First Amendment also fail at summary
judgment. See, e.g., ECF 76 at 25 (claim 25), 29 (claim 31), 31-33 (claims 34 and 35); ECF 114
at 40, 55 (explaining the “Fourteenth Amendment liberty interest” asserted in claims 34 and 35

3 In his objections, Plaintiff only argues that Pedro’s alleged threats did not advance a
penological interest, rather than the “withholding” of the ICR policy itself. See ECF 114 at 58–
59, 61–62. The threats will be addressed below. Plaintiff also argues in his objections that Archer
did not interview him within 30 days as the conflict policy requires. ECF 114 at 40–41. Plaintiff
does not address the many other justifications that Archer provided for denying Plaintiff’s
conflict requests. For example, Archer noted the lack of supporting documentation submitted,
Plaintiff’s and Crump’s separation during Crump’s disciplinary segregation, the lack of
information showing that Crump was affiliated with a gang, the lack of documented prior
conflicts or gang-related housing concerns with Crump, and the fact that altercations are
common and not every dispute rises to a “conflict” under the policy. See generally ECF 89
(Archer Decl.). Otherwise, housing inmates would be impossible. Id. at ¶ 14. Requiring
supporting information to show a threat of serious harm “prevents inmates from abusing the
process by reporting various, unsubstantiated ‘conflicts’ with other inmates in order to force
ODOC to make particular housing, placement, transportation or program assignments.” Id. at
¶ 10. Plaintiff did not address these penological objectives and accordingly has not raised a
genuine dispute of fact as to this element.
concerns a First Amendment retaliation theory). To assert a conspiracy claim under § 1983, the
plaintiff must show “‘(1) the existence of an express or implied agreement among the defendant
officers to deprive [the plaintiff] of his constitutional rights, and (2) an actual deprivation of
those rights resulting from that agreement.’” Klein v. Williams, 714 F. App’x 631, 636 (9th Cir.
2017) (quoting Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010)) (applying standard to First

Amendment retaliation claim). At the second element, as explained above, Plaintiff does not
raise a genuine dispute that the denials of the conflict requests did not advance a legitimate
penological goal or that the objective chilling standard is satisfied. Accordingly, Plaintiff does
not raise a genuine issue of material fact as to whether an actual First Amendment violation
resulted from the alleged conspiracy.
2. Claims that fail at element four.
Claims 20, 21, and 23 fail at the fourth element of First Amendment retaliation.
As relevant to these three claims, three meetings between Pedro and Plaintiff occurred
over roughly four months in 2017. On April 1, Plaintiff wrote to Pedro and asked him “to clarify
and tell me where I could find the ‘Cellmate Compliance Program[’] to read about it.” ECF 96-2

at 23. According to Plaintiff, on or about April 14 or 18, Pedro called Plaintiff to a meeting and
asked him “why [Plaintiff] wanted that information.” Id.; ECF 96-2 at 7–8; ECF 114-1 at 39
(handwritten change from April 14 to April 19, 2017). Plaintiff “explained the situation that I
had been forced to endure on unit 7.” ECF 96-2 at 23. Pedro “became very ang[]ry and
aggressive. He stated that if I was not content with my current housing that he could find me
some ‘altern[a]tive housing.’” Id. at 23; see also id. at 7. “Pedro stated that if I continued to push
this issue I may find myself some place I don’t think is so safe.” Id. at 7. On April 24, 2017,
Pedro met with Plaintiff and accused Plaintiff of lying to him because Plaintiff “had not
volunteered that I had filed a Tort against ODOC.” ECF 96-2 at 10. Pedro told Plaintiff, “you are
now on my shit-list, don’t you ever ask me or any of my staff for anything.” Id. Over the next
few months, Plaintiff corresponded via kyte with Defendants Archer and Peters about the status
of his conflict requests and filed a grievance against Archer. See ECF 106 at 11 (F&R factual
background); ECF 96-2 at 46 (Plaintiff’s memorandum). Plaintiff was called in to speak with
Pedro, as well as Archer, roughly four months after the April meetings. At that August 22, 2017

meeting, Pedro asked, “Didn’t I direct you to not ask my staff for anything?” and “threatened to
‘hold’ [Plaintiff] ‘accountable’ for violating his directive.” ECF 96-2 at 46. Pedro then sent
Plaintiff back to his unit, and Plaintiff wrote to multiple officials, including at the Department of
Justice, regarding Pedro. Id. at 47.
At the fourth element, Plaintiff must satisfy the objective standard that the adverse action
at issue “would chill or silence a person of ordinary firmness from future First Amendment
activities.” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quotation marks and citation
omitted). If a plaintiff only “alleges he suffered some other harm,” he may still have presented a
viable First Amendment retaliation claim because more than minimal harms may have a chilling
effect.4 Id. at 1269; Rhodes v. Robinson, 408 F.3d 559, 562 n.11 (9th Cir. 2005). On summary

judgment, “the plaintiff must demonstrate there is a triable issue of material fact on each element
of his claim, as opposed to merely alleging facts sufficient to state a claim.” Brodheim, 584 F.3d
at 1269 n.3.

4 Plaintiff focuses in his objections on the objective chilling standard rather than any
other “more than minimal harm.” See, e.g., ECF 114 at 38–40. Plaintiff had alleged that Pedro
and Archer, along with the other defendants, were responsible for not replacing his eyeglasses.
See, e.g., ECF 76 at 22–23. Plaintiff did not produce any evidence that Pedro or Archer were
involved with the eyeglasses replacement issue, and Plaintiff does not raise this issue in his
objections. See generally ECF 114.
Some would-be retaliatory action, such as “bad-mouthing” or non-impending, not
sufficiently serious verbal threats, is “so insignificant that it does not deter the exercise of First
Amendment rights.” Coszalter v. City of Salem, 320 F.3d 968, 975–76 (9th Cir. 2003); see also
McGiboney v. Corizon, No. 1:18-CV-00529-DCN, 2021 WL 1092222, at *28 (D. Idaho Mar. 22,
2021) (“Povar’s alleged statement [that plaintiff would not receive medical treatment], while

improper, does not amount to the type of threat or intimidation of impending punishment
sufficient to deter a person of ordinary firmness.”); Wray v. Garton, No. 3:18-CV-01617-SB,
2020 WL 1330234, at *4 (D. Or. Mar. 2, 2020) (“The Court finds that no reasonable jury could
conclude that Deputy Smith’s vague threat of future rule violations, which never materialized,
would chill or silence a person of ordinary firmness from pursuing a grievance. . . .”), report and
recommendation adopted, No. 3:18-CV-01617-SB, 2020 WL 1325354 (D. Or. Mar. 18, 2020);
Woodroffe v. Rosenblum, No. 2:15-CV-02390-SB, 2018 WL 5091622, at *9 (D. Or. Sept. 28,
2018) (finding threats of segregation insufficient), report and recommendation adopted sub nom.
Woodroffe v. Curtis, No. 2:15-CV-2390-SB, 2018 WL 5085755 (D. Or. Oct. 18, 2018), aff'd,

836 F. App'x 636 (9th Cir. 2021); Quezada v. Roy, No. 14 CIV. 4056 CM, 2015 WL 5970355, at
*23 (S.D.N.Y. Oct. 13, 2015) (dismissing some First Amendment claims “because [the]
disgusting, offensive and highly unprofessional conduct does not rise to the level of a
constitutional tort (which is to say, it is not sufficiently serious to deter a person of ordinary
firmness from continuing to exercise his First Amendment rights)”; but not dismissing a claim
based on a threat to kill the plaintiff because it was “sufficiently serious” and a threat to
“seriously harm” plaintiff); Nazarzai v. Cty. of Orange, 845 F. App’x 559, 560 (9th Cir. 2021)
(finding plaintiff failed to satisfy objective standard at trial based on “threats and intimidation”);
cf. Watison v. Carter, 668 F.3d 1108, 1115–16 (9th Cir. 2012) (finding fourth element satisfied
because plaintiff alleged that the retaliatory actions “would have chilled or silenced a person of
ordinary firmness by alleging ‘more than minimal harms’”—the filing of a false disciplinary
charge, placement in administrative segregation, and interference with parole hearing; finding
same against different defendant based on “chilling conduct—the threat of physical violence” via
threat to punch plaintiff in the mouth); Brodheim, 584 F.3d at 1265–66, 1271 (finding genuine

dispute of fact as to chilling effect where defendant wrote on rejected interview request, “I’d also
like to warn you to be careful what you write, req[u]est on this form”) (alteration in original).
This Court finds on this record that no reasonable jury could conclude that Pedro’s
statements during these meetings would chill or silence a person of ordinary firmness from
exercising his or her First Amendment rights. According to Plaintiff, over the course of four
months, Pedro threatened to move Plaintiff to a “less safe” unit within TRCI, to not provide him
with the conflict policy’s protection in the future, and to hold Plaintiff “accountable” for
violating his order not to ask for anything. These statements were improper but also speculative,
vague, and not sufficiently serious to chill a person of ordinary firmness. Further, roughly four

months passed between the first two and the third of Pedro’s alleged threats with no follow-
through action taken to move Plaintiff from unit 5, ECF 88-1; no further unpleasant incidents
reported by Plaintiff regarding any inmate; no submission of a conflict request that could not
have been legitimately denied; and multiple communications from Plaintiff to various officials
complaining about inaction on his requests. Given Plaintiff’s limited history of unpleasant
interactions at TRCI over roughly five years, and then Pedro’s lack of action for four months, no
reasonable jury could conclude on this record that a person of ordinary firmness could be chilled
by Pedro’s conduct.
In the alternative, Pedro is entitled to qualified immunity on these claims.
CONCLUSION
This Court has reviewed de novo the portions of Judge Acosta’s F&R to which Plaintiff
objected. Judge Acosta’s F&R, ECF 106, is adopted as supplemented in this Opinion and Order.

This Court GRANTS Defendants’ Motion for Summary Judgment, ECF 87.

IT IS SO ORDERED.

DATED this 16th day of June, 2021.

/s/ Karin J. Immergut
Karin J. Immergut
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10393455. Public record. Not legal advice.