(PC) Gleason v. CDCR

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 Thomas Lee Gleason, No. 2:20-cv-00775-KJM-CKD 12 Plaintiff, ORDER 13 v. California Department of Corrections and 15 Rehabilitation, et al., 16 Defendants.

18 Plaintiff Thomas Gleason, who was incarcerated in California State Prison Solano and is | not represented by an attorney, alleges a correctional officer retaliated against him for filing | prison grievances in violation of the First Amendment. Gleason also asserts claims under state | law. The case was referred to the assigned Magistrate Judge for all pretrial purposes under this | District’s Local Rules. The Magistrate Judge recommends granting summary judgment to the | defendant officer on Gleason’s First Amendment claim, and she recommends the court decline to | exercise supplemental jurisdiction over Gleason’s state law claims. See generally F&Rs, ECF | No. 80. Gleason objected, ECF No. 81, the officer responded to his objections, ECF No. 82, and | Gleason requested permission to file a reply to the officer’s objections, ECF No. 83. The court | grants Gleason’s request and considers the arguments in his filing at ECF No. 83.

1 “Prisoners have a First Amendment right to file grievances against prison officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). A prisoner can prove an officer defendant is reliable for retaliation in violation of the First Amendment by proving five things: 5 (1) The plaintiff filed a grievance, which is protected conduct under the First 6 Amendment. Id. 7 (2) The defendant took some adverse action against the plaintiff. Id. 8 (3) The defendant took that action “because of” the grievance. Rhodes v. Robinson, 9 408 F.3d 559, 567 (9th Cir. 2005).

10 (4) The defendant’s actions “would chill or silence a person of ordinary firmness from 11 future First Amendment activities.’” Watison, 668 F.3d at 1114 (quoting Rhodes, 12 408 F.3d at 568).

13 (5) The adverse action did not “reasonably advance a legitimate correctional goal.”

14 Rhodes, 408 F.3d at 567.

15 The Magistrate Judge recommends granting summary judgment to the defendant officer because the officer’s allegedly retaliatory actions did not deter Gleason from filing additional prison grievances. See F&Rs at 8. But a plaintiff can prevail in a First Amendment retaliation case without proving “his speech was actually inhibited or suppressed.” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting Rhodes, 408 F.3d at 569). If proof of actual inhibition or suppression were necessary, then a defendant could “escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity.” Id. (quoting Rhodes, 408 F.3d at 569). A plaintiff need only prove that “a person of ordinary firmness” would be chilled or silenced. Id. This court cannot say as a matter of law on this record that Gleason has fallen short of this objective standard.

25 The court declines to adopt the findings and recommendations (ECF No. 80). The motion for summary judgment (ECF No. 75) is denied. This matter is referred to Sujean Park, the court’s pro bono coordinator, for identification of an attorney on the pro bono panel to represent plaintiff at a mandatory settlement conference before another judge of this court.

1 IT IS SO ORDERED.

2 DATED: August 18, 2023.

CHIEF ED STATES DISTRICT JUDGE