Gleason v. Placencia

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT'S MOTION TO DISMISS BE DENIED (ECF NO. 34) FOURTEEN-DAY DEADLINE

         I. BACKGROUND

         Thomas Gleason (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This case is proceeding on Plaintiff's claims against defendant G. Placencia (“Defendant”) for excessive force in violation of the Eighth Amendment and retaliation in violation of the First Amendment. (ECF Nos. 10, 27, & 28).

         On December 17, 2019, Defendant filed a motion to dismiss Plaintiff's retaliation claim. (ECF No. 34). On December 26, 2019, Plaintiff filed his opposition. (ECF No. 37). On December 31, 2019, Defendant filed his reply. (ECF No. 38).

         For the reasons that follow, the Court will recommend that Defendant's motion to dismiss be denied.

         II. PLAINTIFF'S SECOND AMENDED COMPLAINT

         a. Summary

         The events alleged in the complaint occurred at the Delano State Prison reception center building.

         On March 20, 2017, at approximately 2:30 p.m., Defendant gave all the United States postal mail to an inmate to pass out. The inmate threw out just about all the mail for the black inmates. Plaintiff personally got three of his letters out of the trash.

         Plaintiff confronted Defendant about the matter, and Defendant told Plaintiff not to tell him how to run the unit. Plaintiff then asked for a 602^[1] form. Defendant asked Plaintiff why he wanted one, and Plaintiff replied “because I'm going to 602 this matter.” Defendant then said “turn around and cuff-up.” Defendant then took Plaintiff into the sally port, pressed Plaintiff's face against the wall, and hit Plaintiff on the side of the head and in the ribs. Defendant then said “listen[, ] I run this fucking building the way I see fit do you hear me.” Plaintiff said “yes, ” because he did not want to be hit again. Defendant then asked Plaintiff if he still wanted the 602, and Plaintiff replied “no.” Defendant then slapped Plaintiff on the side of the head and said, “yeah that's what I thought[, ] now go lock-up shit head.”

         Plaintiff alleges that Defendant “did chill my constitutional rights towards fruture [sic] First [A]mendment activity and make me [illegible] about writing a 602 at all.”

         b. Screening Order

         The Court screened Plaintiff's Second Amended Complaint, and ordered that this case proceed on Plaintiff's claims against Defendant for excessive force in violation of the Eighth Amendment and retaliation in violation of the First Amendment. (ECF Nos. 10, 27, & 28).

         III. DEFENDANT'S MOTION TO DISMISS

         a. Defendant's Position

         Defendant points out that “Gleason alleges that he orally requested a grievance form, and threatened to file a grievance against Defendant Placencia, and that in response Placencia pressed Gleason's face against a wall and punched him in the ribs.” (ECF No. 34-1, p. 1). Defendant argues that “Gleason's oral statements are not the constitutionally protected conduct necessary to support a claim for retaliation.” (Id.).

         Moreover, even if the oral statements were protected, Defendant is entitled to qualified immunity because “[i]t was not clearly established at the time (in early 2017) that such oral statements were constitutionally protected.” (Id. at 5). “There is no Ninth Circuit or Supreme Court precedent establishing that Gleason's alleged conduct was protected.” (Id. at 7). Additionally, there is no robust census of persuasive authority. (Id.).

         b. Plaintiff's Position

         Plaintiff argues that his oral threat to file a grievance was protected conduct, and that it was clearly established that it was protected conduct when he told Defendant that he was going to file a grievance.

         c. Legal Standards

         i. ...