The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are Defendants' Motion for Summary Judgment (Doc. # 38) and the Report and Recommendation of the Magistrate Judge (Doc. # 44).
On September 1, 2007, Plaintiff, a state prisoner proceeding pro se, initiated this action by filing his Complaint. (Doc. # 1). On September 13, 2007, the Court dismissed the case without prejudice for failure to pay the filing fee or to move to proceed in forma pauperis ("IFP"). On October 31, 2007, Plaintiff moved to proceed IFP. (Doc. # 4). On December 6, 2007, the Court granted Plaintiff IFP status. (Doc. # 6).
On January 22, 2008, Plaintiff filed a First Amended Complaint ("FAC") which is the operative pleading. (Doc. # 8). Plaintiff's FAC alleges claims against Defendants G. Janda, W. Price, R. Johnson, and J. Anaya, employees of the California Department of Corrections and Rehabilitation at Calipatria State Prison. Id. The FAC alleges claims for Retaliation for Exercise of First Amendment Rights, Cruel and Unusual Punishment in violation of the Eighth Amendment, and Denial of Equal Protection in violation of the Fourteenth Amendment. Id. The FAC alleges Plaintiff had a work assignment as chairman of the Men's Advisory Council ("MAC"), which involved addressing prisoners' concerns. Id. at 3-4. The FAC alleges that on June 20, 2007, Defendant Johnson told Plaintiff that if he "didn't stand down from criticizing the Administration position regarding the denial of program towards African Americans he would be bar[red] from his work assignment." Id. at 4. The FAC alleges Defendant Johnson then told Plaintiff "no one here likes a whistle blower." Id. The FAC alleges Defendants Johnson and Price "violated his rights by filing false charges" against Plaintiff. Id. The FAC alleges Plaintiff was acquitted of these charges, but was eventually transferred despite this acquittal in retaliation for his work with the MAC. Id. at 4-5. The FAC alleges this transfer was based on an unfounded report from an informant in May of 1995. Id. at 6. The FAC alleges that after the transfer, Plaintiff continued to be subjected to mistreatment, including "unauthorized opening and reading" of his legal mail, "excessive cell searches" and the destruction of his property in retaliation for his work on the MAC. Id. at 7. Plaintiff signed the FAC "under penalty of perjury" and swore to the truth of his allegations. (Doc. # 8-1 at 3).
On January 15, 2009, the Court dismissed Plaintiff's claims for Cruel and Unusual Punishment in violation of the Eighth Amendment and Denial of Equal Protection in violation of the Fourteenth Amendment. (Doc. # 26). In the same order, the Court denied Defendants' Motion to Dismiss Plaintiff's First Amendment retaliation claim, concluding Plaintiff had stated a claim and that Defendants were not entitled to qualified immunity because "the prohibition against retaliatory punishment is clearly established in the Ninth Circuit for qualified immunity purposes." Id. at 8 (citation omitted).
On March 30, 2009, Defendants filed an Answer to Plaintiff's claim for Retaliation for Exercise of First Amendment Rights. (Doc. # 27). On December 30, 2009, Defendants filed their Motion for Summary Judgment. (Doc. # 38). Also on December 30, 2009, the Magistrate Judge issued a Klingele/Rand Notice to Plaintiff. (Doc. # 39). On February 2, 2010, Plaintiff filed his opposition to the Motion for Summary Judgment. (Doc. # 41). On April 15, 2010 Magistrate Judge issued the Report and Recommendation ("R&R") which recommends granting the motion for summary judgment. (Doc. # 44).
II. The Motion for Summary Judgment
Defendants contend that "the uncontroverted facts" show that Defendants did not take any retaliatory actions against Plaintiff. (Doc. # 38-1 at 7). Defendants contend that "no single prison staff member has the authority to autonomously place an inmate in Administrative Segregation or to retain him there," so placing Plaintiff in administrative segregation cannot be a retaliatory action against him. Id. at 8. Defendants contend that Plaintiff admits that none of the named Defendants ever opened or read Plaintiff's confidential legal mail. Id. Defendants contend that any cell searches conducted by Defendant Johnson were "in connection with an authorized investigation." Id. Defendants contend that it is undisputed that none of the Defendants "ever subjected Plaintiff to hostility or threats." Id.
Defendants contend that "[e]ven if Defendants can be deemed to have taken adverse action against Plaintiff because of their participation in the process that led to his placement in Administrative Segregation, it is undisputed that they did not do so because of Plaintiff's exercise of protected conduct." Id. Defendants contend that "Plaintiff admits that he personally did not complain about the lack of programs for African-Americans." Id. at 9. Defendants contend that even if Plaintiff did complain, Defendants Janda and Johnson were not personally aware of it. Id. Defendants contend that Plaintiff's placement in administrative segregation was based on Plaintiff's six-year-old conviction for assault on a prison guard. Id. Defendants contend that it was also based on "certain confidential information contained in his file."*fn1 Id.
Defendants contend Plaintiff's First Amendment rights were not chilled because Plaintiff admits he has filed numerous grievances and has been permitted to appeal the issue. Id. at 10. Defendants contend "Plaintiff cannot simply fall back on the claim that he is a person of extraordinary firmness" because placement in administrative segregation is too minimal to be "plausibly classified as a 'harm.'" Id. at 10. Defendants contend placement in administrative segregation did not impede Plaintiff's exercise of his First Amendment rights. Id. Defendants contend the conditions in administrative segregation approximate those of the general population. Id. at 11.
Defendants contend that this case is distinguishable from cases where the Ninth Circuit has held that placement in administrative segregation could constitute retaliation which chilled a plaintiff's speech. Id. at 12. Defendants contend that in those cases, a jury found that the plaintiff was placed in administrative segregation based on false reports, whereas in this case, Plaintiff was placed in administrative segregation "based on plausible information indicating that Plaintiff was a threat to the safety and security of the institution." Id. Defendants contend that Plaintiff was placed in administrative segregation in furtherance of a legitimate correctional goal. Id. at 13.
Defendants contend that they are protected by qualified immunity. Id. at 14. Defendants contend that "Plaintiff cannot show under the specific facts of this case that he had a 'clearly established' right to avoid placement in Administrative Segregation based on confidential information." Id. at 15.
In support of their motion for summary judgment, Defendants submitted an excerpt from Plaintiff's deposition testimony (Doc. # 38-1 at 19), the Declaration of D. Bell, Appeals Coordinator at Calipatria State Prison (Doc. # 38-2), the Declaration of D. De Geus, Appeals Coordinator at Centinela State Prison (Doc. # 38-3), the Declaration of G. Janda (Doc. # 38-4), the Declaration of R. Johnson (Doc. # 38-6), and the Declaration of W. Price (Doc. # 38-7).
In his deposition, Plaintiff testified that Defendants retaliated against him because he refused to "dismiss certain paperwork for  grievances and general complaints that the general population was filing and I refused to do it and then I was removed" from the position of "chairman of the Men's Advisory Council . . . ." (Doc. # 38-1 at 21). Plaintiff testified that the grievances were not his own grievances, rather complaints "pertaining to the general population." Id. at 22. Plaintiff testifies that Defendant Johnson was aware of the complaints because Plaintiff "filed agendas . . . that we're going to be discussing in  meeting[s]" of the MAC. Id. Plaintiff testifies that Defendant Janda "oversaw the decision made by Price" to place Plaintiff in administrative segregation. Id. at 23. Plaintiff testifies that his mail was being withheld, but he does not have "specific knowledge" that it was withheld or opened by Defendant Janda or Defendant Johnson. Id. Plaintiff testifies that Defendants Johnson, Price, and Janda never personally searched Plaintiff's cell, but that Defendants "had the authority to have other correctional officers do it for them." Id. at 23-24.
Plaintiff testified that Defendant Johnson labeled him a whistleblower and a snitch. Id. at 24. Plaintiff testified that Defendant Johnson "was saying that nobody around here likes a whistleblower, and that's tantamount to saying that I was a snitch, and then two days later I was placed in the hole." Id. Plaintiff testified that Defendant Price did not threaten him directly, but states "Based on the information that was presented to him, and then the allegations that [were] filed against me as threatening to assault staff, that right there is enough to bring hostility upon me." Id.
Plaintiff testified that he was transferred to administrative segregation based on his 1995 assault of correctional officers. Id. at 26. Plaintiff testified that he plead guilty to the assault. Id. Plaintiff testified that he was transferred out of Calipatria to Centinela in 2007 and was held in Calipatria in administrative segregation until the transfer. Id. at 27. Plaintiff testified he was told he was transferred because he "was a threat to the institution, but apparently they said it's non-adverse." Id. Plaintiff testified he does not know what non-adverse means. Id. Plaintiff states he filed five or six grievances while he was in administrative segregation in Calipatria. Id. Plaintiff states he attempted to file additional grievances but was not allowed to. Id. at 28.
In a declaration, D. Bell, the Calipatria inmate appeals coordinator, states Defendant filed three appeals after June of 2007. (Doc. # 38-2 at 1-2). Defendants submitted internal records of those appeals ...