The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
DAMEION DOUGLAS, Case No. 6:22-cv-01004-AA
Plaintiff, OPINION AND ORDER
v.
ASSIS. ADMIN. OF REL. SERV. STUART
YOUNG; ADMIN. OF REL. SERV. DARYL
BORELLO; CHAPLAIN THOMPSON;
CHAPLAIN STAHLNECKER;
CORRECTIONAL OFFICER STEWART;
SERGEANT WHITNEY; CAPTAIN
SUNDQUIST,
Defendants.
_______________________________________
AIKEN, District Judge.
Plaintiff, a self-represented adult in custody (AIC) at the Oregon State Penitentiary
(OSP), filed suit under 42 U.S.C. § 1983 and alleged that Defendant Sundquist retaliated against
him for engaging in protected conduct in violation of Plaintiff’s rights under the First
Amendment.1 Defendant Sundquist now moves for summary judgment on grounds that the facts
of record do not support Plaintiff’s claim. For the reasons explained below, Plaintiff fails to raise
a genuine issue of material fact to defeat summary judgment, and the motion is granted.
BACKGROUND
On March 7, 2022, Plaintiff filed a grievance against OSP Sergeant Whitney after he
confiscated a mirror from Plaintiff’s cell. Sundquist Decl. ¶ 9 & Ex. 1 at 1-2 (ECF No. 38).
Sergeant Whitney responded to Plaintiff’s grievance and explained that he mistakenly believed
mirrors must be confiscated from AICs and stated that Plaintiff’s mirror would be returned to
him. Id. Ex. 1 at 3. Plaintiff appealed the response and accused Sergeant Whitney of lying and
discriminating against him. Id. Ex. 1 at 4; Pl.’s Response to Mot. Summ. J. at 3 (ECF No. 57).
Plaintiff explained that “it has been over 6 weeks since I had a mirror and [due to] the fact that
Whitney lied, didn’t follow policy by not writing a confiscation form, and undermined [another
officer’s] authority I’m not willing to just accept a new mirror [and] something else has to be
attached to deter future similar conduct.” Sundquist Decl. Ex. 1 at 4.
While Plaintiff’s initial grievance appeal was pending, Defendant Sundquist, one of
Sergeant Whitney’s supervisors, called Plaintiff into his office. Id. ¶¶ 4-6. During their thirty-
minute conversation, Plaintiff and Defendant Sundquist “went back and forth, and Sundquist
surprisingly told him he spoke with Whitney and agreed with him that there was a
misunderstanding and he believed that Whitney must have misunderstood something and that
there wasn’t any discrimination.” Pl’s Response to Mot. Summ. J. at 3. Plaintiff was not satisfied
with Defendant Sundquist’s response and stated that he intended to file a second appeal Id.
1 Plaintiff’s claims against the other named Defendants were dismissed in a previous
Order.
Plaintiff alleges that, after stating his intent to file a second grievance appeal against
Sergeant Whitney, Defendant Sundquist asked Plaintiff how long he had been at OSP. Defendant
Sundquist also allegedly said that AICs “had it good” at OSP compared to other institutions and
at they could be transferred at any time. Sec. Am. Compl. at 4; Pl’s Response to Mot. Summ. J.
at 3. Plaintiff replied, “That’s why guys try to be on their best behavior,” and Defendant
Sundquist reiterated that AICs can be transferred at any time. Id.
Plaintiff subsequently filed a second grievance appeal against Sergeant Whitney and
another grievance against Defendant Sundquist, complaining that Defendant Sundquist
threatened Plaintiff with a retaliatory transfer for filing grievances. Sundquist Decl. ¶¶ 9-10 &
Ex. 1 at 6, Ex. 2. Plaintiff was not disciplined or transferred to another institution after he filed
these additional grievances. Id. ¶ 11.
DISCUSSION
Plaintiff alleges that Defendant Sundquist retaliated against him in violation of his rights
under the First Amendment by issuing an implicit threat that Plaintiff could be transferred to
another institution if he continued to file grievances.
Defendant Sundquist moves for summary judgment on grounds that Plaintiff cannot
succeed on the merits and Defendant Sundquist is entitled to qualified immunity. To prevail,
Defendant Sundquist must show that “there is no genuine dispute as to any material fact” and he
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). As the moving party, Defendant
Sundquist bears the burden of establishing the absence of any genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once this initial burden is met, the burden
shifts to Plaintiff to demonstrate through the production of probative evidence that there remains
an issue of fact to be tried. Id.
The Court must “draw all reasonable inferences” in favor of Plaintiff, the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 255 (1986). The Court “does not
weigh the evidence or determine the truth of the matter, but only determines whether there is a
genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999).
“Where the record taken as a whole could not lead a rational trier of fact to find for the non-
moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citations and quotation marks omitted).
Plaintiff argues that Defendant Sundquist’s statements that AICs could be transferred
from OSP “at any time” was an implicit threat directed at Plaintiff because of his grievances
against Sergeant Whitney and constituted unlawful retaliation against him for engaging in
protected conduct.
“The First Amendment guarantees a prisoner a right to seek redress of grievances from
prison authorities and as well as a right of meaningful access to the courts.” Jones v. Williams,
791 F.3d 1023, 1035 (9th Cir. 2015). Accordingly, retaliation against AICs for exercising their
First Amendment right to file grievances “is itself a constitutional violation.” Brodheim v. Cry,
584 F.3d 1262, 1269 (9th Cir. 2009). To state a viable claim of First Amendment retaliation,
Plaintiff must establish five basic elements: “(1) An assertion that a state actor took some
adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that
such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did
not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-
68 (9th Cir. 2005) (footnote omitted).
With respect to the fourth element, Plaintiff must show either a “chilling effect” or “some
other harm.” Brodheim, 584 F.3d at 1269. An “objective standard governs the chilling inquiry; a
plaintiff does not have to show that ‘his speech was actually inhibited or suppressed,’ but rather
that the adverse action would chill or silence a person of ordinary firmness from future First
Amendment activities.” Id. at 1271 (quoting Rhodes, 408 F.3d at 568-69). While “the mere
threat of harm can be an adverse action” and “have a chilling effect,” the ultimate question is
whether the statements plausibly “intimated that some form of punishment or adverse regulatory
action would follow a failure to comply.” Id. at 1270.
Defendant Sundquist maintains that he spoke to Plaintiff in an attempt to resolve
Plaintiff’s grievance by explaining that Sergeant Whitney was allowed to search Plaintiff’s cell
and mistakenly believed he was required to confiscate Plaintiff’s mirror. Sundquist Decl. ¶ 4-5.
Defendant Sundquist disputes the alleged comments attributed to him and denies that he
threatened Plaintiff with transfer in retaliation for Plaintiff’s grievances. Id. ¶¶ 7-8. Despite this
factual dispute, Defendant Sundquist argues that summary judgment is appropriate because his
alleged comments, if accepted as true, served legitimate correctional goals and were nothing
more than vague, non-impending statements that cannot sustain a claim of retaliation.
Viewing the evidence in the light most favorable to Plaintiff, he fails to establish that two
vague comments about AIC transfers during a thirty-minute conversation constituted an adverse
action that would “chill” a reasonable person from exercising First Amendment rights. It is
undisputed that Defendant Sundquist did not issue a direct or explicit threat of transfer and did
not impliedly suggest that Plaintiff would be transferred because of his grievances. Rather,
Defendant Sundquist stated only that AICs “can be transferred at any time,” and this ambiguous
comment lacked specificity and did not reasonably suggest that Plaintiff’s transfer to another
facility was impending or “would follow” the future exercise of protected activity. Rhodes, 408
F.3d at 568-69; Wray v. Garton, 2020 WL 1330234, at *4 (D. Or. Mar. 2, 2020), report and
recommendation adopted, 2020 WL 1325354 (D. Or. Mar. 18, 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.”); see also Hardy v. Adams, 2018 WL 3559190, at *3 (6th Cir. Apr. 13, 2018)
(finding that “the vagueness of the alleged threat precludes any finding that a person of ordinary
firmness would be deterred from engaging in protected conduct”); Woodward v. Afify, 2018 WL
9875253, at *11 (W.D.N.Y. Sept. 28, 2018), report and recommendation adopted, 2019 WL
5394217 (W.D.N.Y. Oct. 22, 2019) (finding an official’s statement that “a lot of problems could
come” to the plaintiff did “not rise to the level of adverse actions sufficient to support a First
Amendment retaliation claim as a matter of law”); Quezada v. Roy, 2015 WL 5970355, at *23
(S.D.N.Y. Oct. 13, 2015) (dismissing First Amendment retaliation claims based on prison
officials’ verbal harassment and vague threats).
Indeed, after Defendant Sundquist’s comments, Plaintiff filed additional grievances,
initiated this federal court action, fully participated in litigation before this Court, and was never
transferred to another facility. Plaintiff has not alleged “other harm” aside from being “shocked”
by Defendant Sundquist’s statements, which is minimal harm at best. Thus, Plaintiff fails to
show that a prison of ordinary firmness would be deterred from future protected conduct as a
result of Defendant Sundquist’s alleged statements.
At minimum, Defendant Sundquist is entitled to qualified immunity. “Qualified
immunity attaches when an official’s conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” White v. Pauly, 580 U.S.
73, 78-79 (2017) (internal quotation marks and citation omitted) (per curiam). “To be clearly
established, a legal principle must have a sufficiently clear foundation in then-existing
precedent” and “must be clear enough that every reasonable official would interpret it to
establish the particular rule the plaintiff seeks to apply. Otherwise, the rule is not one that ‘every
reasonable official’ would know.” District of Columbia v. Wesby, 538 U.S. 48, 63 (2018)
(citations omitted).
Plaintiff cites no controlling precedent clearly establishing that Defendant Sundquist’s
vague and non-impending statements constituted an actionable threat of adverse action in
retaliation for engaging in protected conduct. Accordingly, summary judgment is appropriate on
grounds of qualified immunity.
CONCLUSION
Defendant’s Motion for Summary Judgment (ECF No. 37) is GRANTED and this action
is DISMISSED. Plaintiff’s Motion for Order (ECF No. 59) is DENIED, as Plaintiff produces no
admissible evidence that Defendant Sundquist answered interrogatories in bad faith.
IT IS SO ORDERED.
DATED this _2_9_t_h_ day of July, 2025.
________/s_/_A_n_n_ _A_i_k_e_n________
ANN AIKEN
United States District Judge