The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a California prisoner proceeding without counsel, with an action for violation of civil rights under 42 U.S.C. § 1983. Plaintiff has filed a motion for summary judgment.
On October 9, 2009, plaintiff's complaint was screened pursuant to 28
U.S.C. § 1915A. The court found that plaintiff states claims upon
which relief could be obtained for First Amendment-based retaliation
claims against defendants Miles, Herrera and Singh.*fn1
On November 24, 2009, the court reconsidered the October 9,
2009 order and ruled that plaintiff also states a First
Amendment-based retaliation claim against defendant Cappel. The only
claims that survived the screening process are the claims described
above. While plaintiff seeks summary
judgment with respect to "due process," "equal protection," and other
claims, plaintiff's motion will only be considered as it pertains to
the First Amendment claims which are before the court.
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. " Fed. R. Civ. P. 56(a).*fn2
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 56(c). If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material in support of its contention that such a dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving a summary judgment motion, the court may examine the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . .. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586 (citation omitted).
Prison officials cannot retaliate against inmates for exercising First Amendment rights. Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). Retaliation in this context is adverse action taken against an inmate because of conduct by the inmate which is protected by the First Amendment. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005).
Something more than minimal harm must have resulted from the retaliation. Id. at 568 n. 11 (9th Cir. 2005). A chilling effect on the exercise of a plaintiff's First Amendment rights is sufficient harm. Id. at 567-68.
Because a prisoner's First Amendment rights are necessarily curtailed, a successful retaliation claim requires a finding that "the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals." Rizzo, 778 F.2d at 532. The plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
In his complaint, plaintiff alleges defendants Herrera, Singh and Miles retaliated against plaintiff because plaintiff filed prisoner grievances and lawsuits. Plaintiff alleges that as a result of these grievances and lawsuits, defendants either terminated or contributed to the termination of plaintiff's job assignment at the book bindery at plaintiff's prison.
Defendants Herrera, Singh and Miles provide affidavits with defendants' opposition to plaintiff's motion for summary judgment and all three defendants state that at no time did they ever take any adverse action against plaintiff because he filed prisoner grievances or lawsuits. They all indicate, or at least suggest, that plaintiff was removed from his job at the book bindery because it had been determined that plaintiff had a history of escape, because he was not scheduled to be released within twenty years, or both. The job at the book bindery, according to defendants, required special clearance which, in light of the two factors identified above, plaintiff could not obtain. As indicated above, the court must accept these facts as true for purposes of plaintiff's motion for summary judgment.
The evidence presented by plaintiff indicating these defendants did take action against him because of protected activity is, at best, circumstantial. There is no direct evidence of retaliation, e.g. there is nothing in the record indicating any of these three defendants ever threatened adverse action against plaintiff for his engaging in protected activity, nothing suggesting any defendant told any other person they were retaliating or were going to retaliate, and nothing suggesting retaliation is the only rational explanation for plaintiff's position at the book bindery being terminated. Of course, it would be very difficult for plaintiff to establish that he is entitled to ...