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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 11 SALVADOR VENEGAS, Case No. 5:19-cv-01557-JLS-SHK

12 Plaintiff, ORDER ACCEPTING IN PART AND 13 v. REJECTING IN PART THE FINDINGS AND RECOMMENDATION OF UNITED 14 CHAD BIANCO, et al., STATES MAGISTRATE JUDGE

15 Defendants.

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21 22 23 24 25 26 27 1 Pursuant to

, the Court has performed a de novo review of 2 the relevant record, including the First Amended Complaint (“FAC,” Doc. 15),1 3 the Motion to Dismiss filed by Defendants County of Riverside and its Sheriff’s 4 Department (Doc. 24), the Motion to Dismiss filed by individual Officer 5 Defendants (Doc. 71), Plaintiff’s Opposition to both Motions (Doc. 76), the Reply 6 brief filed by all Defendants (Doc. 77), the Report and Recommendation of the 7 United States Magistrate Judge (“R&R,” Doc. 80), Defendants’ Objection to the 8 R&R (Doc. 82), Plaintiff’s Objection to the R&R (Doc. 85), and Defendants’ 9 Reply to Plaintiff’s Objection (Doc. 86). 10 Pursuant to the Court’s review, and except as specified herein, the Court 11 accepts the findings and recommendations set forth in the R&R. 12 (1) Plaintiff’s First Amendment Claim Against Defendant 13 Irvine in his Individual Capacity is Viable 14 The Court declines to adopt the R&R to the extent that it dismisses with 15 prejudice Plaintiff’s First Amendment retaliation claim against Defendant Irvine. 16 There are five elements to a First Amendment retaliation claim in the context of 17 this case: 18 (1) An assertion that a state actor took some adverse action against an 19 inmate (2) because of (3) that prisoner’s protected conduct, and that 20 such action (4) chilled the inmate’s exercise of his First Amendment 21 rights, and (5) the action did not reasonably advance a legitimate 22 correctional goal. 23 24 25 1 Plaintiff elected to proceed on the remaining claims in the FAC after the Magistrate Judge 26 Order issued an order dismissing a number of claims with leave to amend. (See Order Dismissing Most Claims in FAC with Leave to Amend (Doc. 19); Pltf. Notice of [Partial] 27 Dismissal (Doc. 20).) 1 Rhodes v. Robinson,

(9th Cir. 2005) (noting that actions 2 taken in retaliation against inmates for filing prison grievances violate the First 3 Amendment). 4 The Court will not dismiss at the pleading stage that portion of Plaintiff’s 5 First Amendment claim alleging retaliation in the form of the use of restraining 6 devices in an injurious manner when transporting Plaintiff. As alleged by Plaintiff, 7 he was subjected to the use of particular restraints during transport, he was injured 8 by the use of those restraints, and the use of those restraints were unrelated to 9 security precautions and were instead intended to punish him for exercising his 10 free speech rights. (See Doc. 15, FAC ¶¶ 128-154 (factual allegations regarding 11 use of restraints and resulting injuries); FAC ¶ 257-264 (asserting First 12 Amendment retaliation claim).) Plaintiff also alleges that just before Plaintiff was 13 secured in those restraints, Defendant Irvine stated “[o]n the topic of grievances 14 and punishments, there’s other restrictions that we can enforce and impose that 15 do[] not involve meals.” (See FAC ¶¶ 133-134.) And Plaintiff alleges that 16 deputies indicated that Defendant Irvine gave them specific direction on how 17 Plaintiff was to be restrained that same day. (FAC ¶ 135.) 18 As explained below, Plaintiff alleges facts that, if resolved in his favor, 19 support inferences in his favor as to all five requirements articulated in Rhodes. 20 a. First Three Rhodes Elements 21 Plaintiff alleges that Defendant Irvine took “adverse action” against him by 22 having him placed in enhanced restraints during transport in a manner that injured 23 Plaintiff, and that Defendant Irvine did so in response to (i.e., “because of”) 24 Plaintiff’s “protected conduct” of filing prison grievances. Plaintiff alleges that 25 Defendant Irvine made a statement alluding to a retaliatory intent in close temporal 26 proximity to Plaintiff’s transport in restraints on June 14, 2019, and that Defendant 27 Irvine had given specific instructions to the transporting deputies regarding the 1 method of restraints to be used on Plaintiff during transport. (See FAC ¶ 135 2 (alleging that deputies told Plaintiff on June 14, 2019 that Defendant Irvine had 3 “pressed the issue [that] morning,” and that “[they] were ordered to [place] security 4 mitts on [Plaintiff] when he was “cross chain[ed]”). Additionally, Plaintiff alleges 5 that this statement was made (and the use of restraints first occurred) on the day 6 immediately after the written response rejecting Plaintiff’s appeal of a denied 7 grievance. (See FAC ¶¶ 133-134 (statement made on and restraints used on June 8 14, 2019); cf. Pltf. Obj. Ex. D, Doc. 85 at 23 (June 13, 2019 written denial of 9 Plaintiff’s grievance appeal).) Thus, the first three Rhodes elements for pleading a 10 First Amendment retaliation claim are satisfied. 11 b. Rhodes Element Four 12 The Court concludes that Plaintiff has sufficiently alleged a chilling effect 13 on the exercise of his free speech rights. (Cf. R&R, Doc. 80 at 28-29 (observing 14 that “Plaintiff fails to plead facts suggesting that Irvine’s actions chilled Plaintiff’s 15 exercise of his free speech rights”).) An actual, subjective chilling effect is not 16 required to support a First Amendment retaliation claim; instead, the key question 17 in a First Amendment retaliation case is whether the retaliatory activity “would 18 chill or silence a person of ordinary firmness from future First Amendment 19 activities.” Rhodes,

(quotation marks omitted); Dodge v. 20 Evergreen Sch. Dist. #114,

, 779 (9th Cir. 2022). Here, Plaintiff sets 21 forth sufficient allegations to support the inference that “a person of ordinary 22 firmness” would be chilled from further exercising his free speech rights rather 23 than suffer the pain and physical injuries alleged by Plaintiff in the FAC, thus 24 satisfying the fourth element of Rhodes. (See FAC ¶¶ 151-172.) 25 c. Rhodes Element Five 26 Plaintiff also sufficiently alleges the final Rhodes element, namely, that the 27 action did not reasonably advance a legitimate correctional goal. Although 1 Plaintiff was restrained in a manner consistent with the Sheriff’s Department 2 policy for transporting inmates who are housed in administrative segregation 3 (R&R, Doc. 80 at 28-29), Plaintiff has alleged a factual basis supporting an 4 inference that the policy was enforced in his case in order to punish him for the 5 exercise of his free speech rights. Specifically, it appears from Plaintiff’s 6 allegations that this policy was inconsistently enforced prior to June 14, 2019. (See 7 FAC ¶ 134 (alleging that he had been transported several times without such 8 restraints).) And Plaintiff’s allegations link a statement evidencing retaliatory 9 intent with retaliatory action: Specifically, Plaintiff links Defendant’s Irvine’s 10 statement regarding “other restrictions” that could be enforced against Plaintiff 11 with Defendant Irvine’s involvement in selecting a particularly painful method of 12 restraining Plaintiff. 13 That an inmate is subjected to treatment that is consistent with an otherwise 14 legitimate policy does not bar a First Amendment retaliation claim where that 15 policy is enforced against the inmate with retaliatory intent. When enforced with 16 retaliatory intent, the policy cannot be said to “reasonably advance a legitimate 17 correctional goal.” Rhodes,

(emphasis added). This final 18 Rhodes factor is met where a policy that generally serves a legitimate purpose is 19 enforced for a retaliatory purpose. See Johnson v. Ryan,

, 1202 (9th 20 Cir. 2022). In Johnson, officers were accused of retaliating against an inmate for 21 his protected activity (filing lawsuits) by transferring an inmate to a different 22 housing unit.

The district court granted summary judgment to the officers on 23 the basis that their conduct was in conformity with an institutional policy that 24 served a legitimate penological goal, but the Ninth Circuit reversed, holding that 25 where an officer uses legitimate jail or prison procedures “in order to punish” an 26 inmate for engaging in activity protected by the First Amendment, the officer’s 27 1 “use of these procedures [is] not a reasonable advancement of the legitimate 2 penological goal.” Johnson, 55 F.4th at 1202. 3 Therefore, here, Plaintiff alleges facts that, if resolved in his favor, would 4 support inferences in his favor as to all five requirements articulated in Rhodes 5 have been met. Thus, Plaintiff has stated a claim for First Amendment retaliation 6 against Defendant Irvine, and the Court declines to adopt the R&R to the extent 7 that it dismisses with this claim. 8 (2) Defendant Irvine is not Entitled to Qualified Immunity as to the 9 First Amendment Retaliation Claim 10 Nor does Defendant Irvine’s assertion of qualified immunity require 11 dismissal of Plaintiff’s First Amendment retaliation claim. “Qualified immunity 12 protects government officers from liability for civil damages insofar as their 13 conduct does not violate clearly established statutory or constitutional rights of 14 which a reasonable person would have known.” Hernandez v. City of San Jose, 15

(9th Cir. 2018). To determine whether an officer is entitled to 16 qualified immunity, courts consider two questions: “(1) whether the alleged 17 misconduct violated a [constitutional] right and (2) whether the right was clearly 18 established at the time of the alleged misconduct.”

19 The Court discussed the first question in the previous section, concluding 20 that Plaintiff sufficiently alleged a violation of his First Amendment rights. As to 21 the second question, Plaintiff bases his First Amendment retaliation claim on 22 allegations of officer misconduct in June 2019. By that time, Plaintiff’s right to be 23 free from retaliatory enforcement of an otherwise legitimate institutional policy 24 was clearly established. Specifically, although Johnson (decided in 2022) is a 25 more recent application of how a pretextual application of a legitimate policy does 26 “not reasonably advance a legitimate correctional goal,” this proposition has been 27 the clearly established law at least since the Ninth Circuit decided the case upon 1 which Johnson relies, Bruce v. Ylst,

(9th Cir. 2003). In 2 Bruce, the court noted that “prison officials may not defeat a retaliation claim . . . 3 simply by articulating a general justification for a neutral process” where there are 4 issues of fact “as to whether the action was taken in retaliation for the exercise of a 5 constitutional right.”

. 6 Therefore, Defendant Irvine is not entitled to qualified immunity as to 7 Plaintiff’s First Amendment retaliation claim at the pleadings stage. 8 (3) Defendants’ Objection: Eighth Amendment Claim 9 Second, the Court overrules Defendants’ Objection to the R&R’s denial of 10 the Motions to Dismiss Plaintiff’s Eighth Amendment claim for denial of meals. 11 Specifically, Defendants argue that Plaintiff does not allege physical injury (such 12 as weight loss) as a result of the denial of meals and that the failure to do so is fatal 13 to his claim in light of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e) 14 (“PLRA”). (See Def. Obj., Doc. 82 at 1-3.) Although this provision of the PLRA 15 indeed requires in most instances that claims by an inmate result in physical injury 16 rather than “mental or emotional injury,” this requirement is minimal in that “a 17 prisoner need not suffer an injury that is observable, requires a diagnosis, or 18 demands medical treatment.” Bell v. Williams,

, 829 (9th Cir. 2024) 19 (relying on Oliver v. Keller,

(9th Cir. 2002)). The injury 20 alleged in the FAC and discussed in the R&R is sufficient to meet this requirement. 21 (See R&R, Doc. 80 at 32-35; see also FAC ¶ 205 (alleging documented weight loss 22 of eleven pounds).) The Court therefore overrules Defendants’ Objection. 23 (4) Rulings Not Expressly Rejected are Accepted 24 The Court accepts the findings and recommendations set forth in the R&R 25 other than the findings and recommendation as to the First Amendment retaliation 26 claim against Defendant Irvine. Specifically: 27 1 Defendants’ MTDs as to Plaintiff's official capacity claims against the 2 | Officer Defendants, Plaintiff's claims for injunctive and declaratory relief, and 3 | Plaintiff's First Amendment retaliation claims (except as to the claim against 4 | Defendant Irvine in his individual capacity as discussed herein), are GRANTED 5 | and those claims are DISMISSED WITH PREJUDICE; and 6 Defendants’ MTDs as to Plaintiff's Eighth Amendment claim are 7 | GRANTED IN PART AND DENIED IN PART. That claim may proceed against 8 | the two County Defendants in their official capacities and against Defendants 9 | Lomeli, Ocampo, Irvine, Hixson, Basua, Rosa, Kelley, Hernandez, DeAnda, 10 | Martinez-Larsen, Bell, Morris, Carrillo, Velasquez, Contreras, and Spradlin in their 11 | individual capacities. The Eighth Amendment claim is dismissed with prejudice as 12 | to Defendants Griffith, Taylor, Shield, and Boydd. 13 IT IS SO ORDERED. 14 Dated: March 6, 2025 15 Pe

17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28