United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
DEFENDANT'S MOTION TO DISMISS BE DENIED (ECF NO. 34)
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).
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).
reasons that follow, the Court will recommend that
Defendant's motion to dismiss be denied.
PLAINTIFF'S SECOND AMENDED COMPLAINT
events alleged in the complaint occurred at the Delano State
Prison reception center building.
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
confronted Defendant about the matter, and Defendant told
Plaintiff not to tell him how to run the unit. Plaintiff then
asked for a 602 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.”
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.”
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).
DEFENDANT'S MOTION TO DISMISS
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.).
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
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.