Opinion
6:22-cv-00469-SB
09-25-2023
DERRICK JERMAINE JAY, Plaintiff, v. OFFICER GUSTAVO RODRIGUEZ; OFFICER KATIE SANCHEZ; and CAPTAIN JONATHAN HYDE, Defendants.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN United States Magistrate Judge.
Derrick Jermaine Jay (“Jay”), a self-represented adult in custody (“AIC”) of the Oregon Department of Corrections (“ODOC”), filed this action under 42 U.S.C. § 1983. Jay, who at all relevant times was housed at the Oregon State Correctional Institution (“OSCI”), alleges that three OSCI officers, Defendants Gustavo Rodriguez (“Rodriguez”), Katie Sanchez (“Sanchez”), and Jonathan Hyde (“Hyde”) (together, “Defendants”), retaliated against him for filing grievances and a previous lawsuit in this district against, among others, Sanchez and Hyde. (See Jay v. Sanchez, Case No. 6:20-cv-01047-SB (D. Or. filed June 26, 2020).)
The parties have filed cross-motions for summary judgment on Jay's First Amendment retaliation claims. See FED. R. CIV. P. 56. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, but not all parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). For the reasons explained below, the Court recommends that the district judge deny both motions for summary judgment.
Given the parties' and Court's familiarity with Jay's claims and the procedural history, see Jay v. Rodriguez, No. 6:22-cv-00469-SB, 2022 WL 17834314, at *1-5 (D. Or. Nov. 14, 2022), findings and recommendation adopted, 2022 WL 17832214, at *1 (D. Or. Dec. 21, 2022), the Court describes it below only as necessary to address the issues raised in the parties' pending motions.
LEGAL STANDARDS
Summary judgment is proper if “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). At the summary judgment stage, the court views the facts in the light most favorable to the non-moving party, and draws all reasonable inferences in that party's favor. See Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
“Cross-motions for summary judgment are evaluated separately under this same standard.” Pinto v. Pac. Creditors Ass'n, 605 F.3d 665, 674 (9th Cir. 2010) (citing ACLU of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006) and Hoopa Valley Indian Tribe v. Ryan, 415 F.3d 986, 989-90 (9th Cir. 2005)). Thus, the court “view[s] the evidence for each of the motions ‘in the light most favorable to the nonmoving party' for that motion,” Riley's Am. Heritage Farms v. Elsasser, 32 F.4th 707, 719 (9th Cir. 2022) (quoting L.F. v. Lake Wash. Sch. Dist. #414, 947 F.3d 621, 625 (9th Cir. 2020)), and “giv[es] the nonmoving party in each instance the benefit of all reasonable inferences.” ACLU of Nev., 466 F.3d at 790 (citation omitted). The court must consider evidence identified and submitted in support of and opposition to each motion. See Tulalip Tribes of Wash. v. Washington, 783 F.3d 1151, 1156 (9th Cir. 2015) (“[T]he court must consider the appropriate evidentiary material identified and submitted in support of both motions, and in opposition to both motions, before ruling on each of them.” (quoting Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001))); Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 531 (9th Cir. 2011) (“Where the parties file cross-motions for summary judgment, the court must consider each party's evidence, regardless under which motion the evidence is offered.” (citing Riverside Two, 249 F.3d at 1136)).
DISCUSSION
I. DEFENDANTS' MOTION
Defendants argue that they are entitled to summary judgment on three grounds. (See Defs.' Resp. Opp'n Pl.'s Mot. Summ. J. & Cross-Mot. Summ. J. (“Defs.' Mot.”) at 2, 6, ECF No. 26, identifying three grounds; Defs.' Reply Supp. Mot. Summ. J. at 1, ECF No. 30, resting on the “points and authorities” in the initial motion). First, Defendants argue that Jay's First Amendment retaliation claims fail as a matter of law. (Defs.' Mot. at 2, 6.) Second, Defendants argue that they are entitled to qualified immunity. (Id.) Third, Defendants argue that Jay's request for prospective injunctive relief does not comply with the Prison Litigation Reform Act (“PLRA”) (Id.)
A. Preliminary Matter
The Court's docket reflects that Defendants never filed an answer in this case. The district court's decision in Fontana v. City of Auburn, No. 13-cv-00245, 2014 WL 4162528, at *4-5 (W.D. Wash. Aug. 21, 2014), aff'd, 679 Fed.Appx. 613 (9th Cir. 2017), is instructive on this issue.
In Fontana, the plaintiff asserted, among other things, claims for violations of his constitutional rights under 42 U.S.C. § 1983. 2014 WL 4162528, at *4. Before turning to the defendants' motion for summary judgment, the district court “first addresse[d] [the] [d]efendants' inexplicable failure to file an [a]nswer.” Id. The district court noted that the defendants moved for summary judgment on the grounds that the plaintiff could not “state a claim in light of the undisputed evidence” and the defendants were “entitled to qualified immunity,” both of which were “affirmative defense[s] that must be raised in a responsive pleading or by motion under Rule 12 before a responsive pleading is filed[.]” Id. (citation omitted).
After noting that the defendants had not filed any Rule 12 motions or an answer, the district court explained that “[t]he defenses asserted in [the] [d]efendants' summary judgment motion would normally be waived or, at a minimum, available only at trial or through a motion for judgment on the pleadings.” Id. at *5. Nevertheless, the district court recognized that a defendant may raise a qualified immunity defense in a summary judgment motion and courts retain the discretion to allow a defendant to assert affirmative defenses for the first time on summary judgment, and elected to proceed to the merits of the defendants' motion for summary judgment:
[A]s other district courts have noted, the Ninth Circuit has ‘liberalized the rules regarding waiver of affirmative defenses such that district courts have discretion to permit the assertion of an affirmative defense for the first time on summary
judgment, provided that there is no prejudice to the nonmoving party and the nonmoving party is given an opportunity to respond.' . . . A defense, including qualified immunity, may be raised in the summary judgment motion even if it was not listed in the answer or if no answer was ever filed....
[Plaintiff, who is represented by counsel,] has had an opportunity to respond to Defendants' arguments by briefing the issues and presenting evidence to the Court. He has also had roughly one year to seek the entry of default and default judgment against Defendants based on their failure to answer the complaint, which would have been the appropriate response.... He did not do so, and in the course of this case, he has not taken issue with Defendants' failure to file an Answer. He appears to have had notice of the defenses (which are common in this type of case) and has proceeded to litigate the case as if those defenses had been properly preserved. The Court accordingly proceeds to address Defendants' motion.Id. (quoting Alcarmen v. J.P. Morgan Chase Bank, No. 13-cv-01575, 2014 WL 3368647, at *5 (N.D. Cal. July 8, 2014) and citing Ledo Fin. Corp. v. Summers, 122 F.3d 825, 827 (9th Cir. 1997), Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993), and Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1022-23 (9th Cir. 2010), overruled on the grounds as recognized in Hortonby Horton v. City of Santa Maria, 915 F.3d 592, 599-600 (9th Cir. 2019)); see also KST Data,Inc. v. DXC Tech. Co., 980 F.3d 709, 711, 713 (9th Cir. 2020) (holding that a defendant need not “file a new answer reasserting its affirmative defenses when the claim in the amended complaint related to those affirmative defenses remains the same,” and noting that Alcarmen, Simmons, Ledo, and Camarillo, which reflect that a “court has discretionary authority to allow a defendant to plead an affirmative defense in a subsequent motion absent prejudice to the opposing party,” did not “involve the unique question” of whether the defendant needed to file a new answer).
Consistent with Fontana and the authorities cited therein, the Court recognizes that a defendant may raise a qualified immunity defense in a motion for summary judgment. The Court also recognizes that as in Fontana, there is no prejudice to Jay here because he was given an opportunity to respond to most of the same defenses and arguments at both the motion to dismiss and summary judgment stages, and received adequate notice of Defendants' defenses (which are common in this context) and the allegations that Defendants disputed. Although a lawyer is not appearing on Jay's behalf, Jay has not taken issue with Defendants' failure to file an answer or sought entry of default or a default judgment (which, in the Court's experience, is not uncommon even for self-represented litigants), and instead has litigated all of Defendants' defenses as though properly preserved.
For these reasons and in accordance with Fontana, the Court proceeds to address Defendants' motion for summary judgment, including their qualified immunity argument.
B. First Amendment Retaliation
1. Applicable Law
“The most fundamental of the constitutional protections that prisoners retain are the First Amendment rights to file prison grievances and to pursue civil rights litigation in the courts.” Johnson v. Ryan, 55 F.4th 1167, 1201 (9th Cir. 2022) (quoting Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017)). As the Ninth Circuit has explained, “[b]ecause purely retaliatory actions taken against [an AIC] for having exercised those rights necessarily undermine those protections, such actions violate the Constitution quite apart from any underlying misconduct they are designed to shield.” Id. (quoting Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005)).
A First Amendment retaliation claim has five essential elements: “(1) adverse action by a state actor against the [AIC] (2) because of (3) that [AIC]'s protected conduct, and the action (4) chilled the [AIC]'s exercise of his First Amendment rights and (5) did not reasonably advance a legitimate correctional goal.” Id. (citing Chavez v. Robinson, 12 F.4th 978, 1001 (9th Cir. 2021)).
2. Analysis
Jay alleges that Defendants violated his First Amendment rights by retaliating against him for filing grievances and a recent civil lawsuit. Specifically, Jay alleges that (1) consistent with Rodriguez's previously stated desire to have Jay transferred and for Jay to lose his housing unit orderly position, Hyde approved Rodriguez's request to transfer Jay to a different housing unit on August 3, 2021 (and consequently lose his housing unit-dependent orderly position), because Jay had filed grievances against Rodriguez and had named Hyde and Sanchez as defendants in his civil suit (which Jay filed on June 26, 2020 and settled in April 2022); and (2) before Jay's transfer, Sanchez encouraged Rodriguez to retaliate against Jay for suing Sanchez. See Jay, 2022 WL 17834314, at *1 (describing Jay's retaliation claims).
Defendants argue that Jay's First Amendment retaliation claims fail as a matter of law. (Defs.' Mot. at 2, 6-7.) Defendants do not appear to dispute the first, third, or fourth elements of Jay's First Amendment retaliation claims (i.e., Jay's transfer and job loss were adverse actions, Jay's grievances and lawsuit were protected First Amendment conduct, and Defendants' actions chilled Jay's exercise of his First Amendment rights). (See id. at 7-9.) Instead, Defendants focus on whether there is a genuine issue of material fact as to whether Jay's transfer and job loss were in retaliation for his First Amendment activity and advanced a legitimate penological goal. (See id., focusing on Jay's burden to prove the absence of a legitimate correctional goal for any adverse action and related arguments, and arguing that the actions were not “because” of Jay's grievances).
As explained below with respect to the essential elements of Jay's First Amendment retaliation claims, the Court finds that there are genuine issues of material fact that preclude summary judgment in Defendants' favor. Thus, the Court recommends that the district judge deny Defendants' motion for summary judgment.
a. Retaliatory Motive
“To establish a retaliatory motive, an [AIC] ‘must show that his protected conduct was the substantial or motivating factor behind the defendant's conduct.'” Johnson, 55 F.4th at 1201- 02 (quoting Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009)); see also Brodheim, 584 F.3d at 1271 (addressing the second element, which Brodheim referred to as causation). The Ninth Circuit has previously found a genuine issue of material fact as to retaliatory motive when the plaintiff was “validated as a gang member shortly after the success of his prison grievances, stale evidence was used against him for validation, and he offered a declaration alleging that a corrections officer told him that ‘higher-ups' instructed the officer to validate him because of his ‘complaints and protests.'” Johnson, 55 F.4th at 1202 (quoting Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2003)).
More recently, in Johnson, the Ninth Circuit found that the facts the plaintiff presented, “if true, would allow a reasonable jury to return a verdict in [the plaintiff's] favor” with respect to retaliatory motive. 55 F.4th at 1202. In support, the Ninth Circuit explained that when the plaintiff was removed from his reintegration program for security threat group (“STG”) members and close custody unit and transferred back to a maximum security unit for STG members, the plaintiff's previous lawsuit (i.e., the protected conduct at issue) was “pending [on] appeal before” the Ninth Circuit. Id. The Ninth Circuit further explained that the plaintiff's “declaration described an encounter with [a sergeant]-the author of the memorandum that provided the basis for [the plaintiff's] removal from the [program]-in which [the sergeant] told [the plaintiff] that ‘higher-ups' wanted [the plaintiff] off the yard and that ‘jailhouse lawyers' were not welcome in [the sergeant's] unit.” Id. Rejecting the defendants' “characteriz[ation] of these facts as speculative,” the Ninth Circuit noted that it was required to view the evidence in the light most favorable to the plaintiff, and thus found that there was a genuine issue of material fact as to retaliatory motive. Id.
Jay has likewise raised a genuine issue of material fact as to whether Defendants' motive in transferring him to a different housing unit was retaliatory. Viewing the evidence in the light most favorable to Jay, as the Court must, the record reflects that: after Jay filed a civil lawsuit against Sanchez, Hyde, and another OSCI officer, Sanchez had conversations with, and “expressed [her] concerns” to, Rodriguez about Jay suing her; Rodriguez informed Sanchez about “several complaints” that Jay had previously filed against him; Hyde informed Rodriguez about Jay's lawsuit against Hyde; and Jay filed grievances against Rodriguez alleging, among other things, that Rodriguez was treating Jay differently than other AICs and retaliating against Jay for filing complaints and was doing so on Sanchez's behalf, Rodriguez told Jay that he knew about Jay's lawsuit against Sanchez and “want[ed] [Jay] transferred . . . [and] fired from [his] unit orderly job,” and if Jay was “moved from [his] cell or transferred[,] . . . it's because of this [June 23, 2021 grievance].” (Decl. Derrick Jay Supp. Pl.'s Reply (“Jay Decl.”) Ex. 7 at 3, ECF No. 31; id. Ex. 8 at 3-4; Decl. Nathaniel Aggrey Supp. Defs.' Mot. Summ. J. (“Aggrey Decl.”) Exs. 105, 107, ECF No. 27; see also Pl.'s Mot. Summ. J. (“Pl.'s Mot.”) at 8-9, 17, ECF No. 21, reflecting that Jay declared under penalty of perjury that Rodriguez made the above statements to Jay).
The record further reflects that on August 18, 2021, Rodriguez responded to Jay's June 23, 2021 grievance but did not specifically address Jay's allegations about statements he made to Jay or retaliation for engaging in protected conduct (See Aggrey Decl. Ex. 108 at 1.) Notably, however, the record reflects that on August 3, 2021 (i.e., after Jay filed his then-pending suit against Sanchez and Hyde and June 23, 2021 grievance and before Rodriguez filed his August 18, 2021 response and Jay settled his suit against his Sanchez and Hyde), Rodriguez contacted Hyde and “requested that . . . Jay be moved off [his] unit.” (Jay Decl. Ex. 4 at 1.) As Hyde explained to Jay on October 6, 2021, Rodriguez's request to move Jay from his unit was due in part to Rodriguez's “recei[pt] [of] several grievances from . . . Jay” and belief that he and Jay needed to be “separate[ed]” and “a short break away from each other” for “their mental health.” (Id.; see also id. Ex. 7 at 4, reflecting that Rodriguez's interrogatory responses state that he requested Jay's move “not solely,” but not unrelated to, Jay's “filing [of] complaints against [him]”).
On that same day, August 3, 2021, Hyde granted Rodriguez's request to move Jay from his unit and transferred Jay to a different OSCI unit. (Aggrey Decl. Ex. 102 at 1; Jay Decl. Ex. 3 at 1.) Consistent with the allegations and warning in Jay's June 23, 2021 grievance about an encounter he recently had with Rodriguez, Jay lost his unit orderly job because he no longer resided in his “old unit” and thus could no longer work there. (Jay Decl. Ex. 10 at 1; id. Ex. 11 at 1.) Jay had started working as a unit orderly on May 26, 2021 and received a promotion on June 14, 2021. (Id. Ex. 11 at 1.) The OSCI officer who hired Jay, “Corporal Hickman,” told Jay that after receiving an August 16, 2021 notice that Jay's “move to [the other unit] would stay that way unless it was changed by . . . Hyde,” she “could no longer hold [Jay's] spot” as a unit orderly and, therefore, hired another AIC to fill Jay's unit orderly position. (Id. Ex. 11 at 2; id. Ex. 7 at 2.)
After granting Rodriguez's request to move Jay to a different unit, Hyde maintained that he was “unaware that . . . Jay was hired as an orderly for [his unit].” (Id. Ex. 4 at 1.) Rodriguez and Sanchez also maintain that they did not know that Jay worked as a unit orderly, even though both officers acknowledge that there is a “list of orderlies” or an “orderly roster” in the officers' workstation. (Id. Ex. 7 at 2, 4; id. Ex. 8 at 2-3.) Further, in his response to Jay's interrogatories in this case, Hyde acknowledges that his October 6, 2021 grievance response cited Jay's past grievances against Rodriguez as a “part but not all of what [he] wrote” regarding why Rodriguez requested Jay's transfer. (Id. Ex. 10 at 2.) Hyde also confirms that he “stand[s] by [his] answers in th[at] response[.]” (Id. Ex. 10 at 5.) At the same time, however, Hyde, who does “not recall how . . . Rodriguez contacted [him], whether it was a call or in person,” attempts “[t]o clarify” his conversation with Rodriguez about the move request and states that “[w]hen [he] talked with [Rodriguez] about the request to move [Jay], it was not based off of the grievances [Jay] had filed against him[.]” (Id. Ex. 10 at 2-3; cf. id. Ex. 4 at 1, “I was contacted by . . . Rodriguez [Jay's] unit supervisor and he requested that . . . Jay be moved off the unit.... Rodriguez has received several grievances from . . . Jay and requested a short break away from each other.”; id. Ex. 7 at 4, stating that Rodriguez's request was “not solely,” but not unrelated to, Jay's “filing [of] complaints”).
On this record, the Court finds that Jay has a raised a genuine dispute of material fact as to retaliatory motive and thus recommends that the district judge deny Defendants' motion for summary judgment on this ground. See Klein v. Williams, 714 Fed.Appx. 631, 636 (9th Cir. 2017) (noting that a First Amendment claim can be based on “a chronology of events from which retaliation can be inferred”) (simplified).
b. Reasonable Advancement of a Legitimate Correctional Goal
Jay “bears the burden of proving the absence of a legitimate correctional goal for the adverse action.” Johnson, 55 F.4th at 1202 (citing Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995)). Contrary to Defendants' argument (see Defs.' Mot. at 7-9), Jay has raised a genuine issue of material fact on this issue.
In Johnson, the Ninth Circuit addressed the defendants' argument that the plaintiff's removal from the reintegration program and close custody unit “advanced the legitimate correctional goal of curtailing prison gang activity and that [the plaintiff's] removal was supported by the evidence described in the [sergeant's] memorandum.” Id. The Ninth Circuit recognized that “prisons have a legitimate interest in stopping prison gang activity,” but nevertheless held that the defendants were not entitled to summary judgment on this ground. Id.(citing Bruce, 351 F.3d at 1289). The Ninth Circuit explained that “the presence of a genuine dispute of material fact with respect to a retaliatory motive mean[t] that [the] [d]efendants' general justification for the action [was] not sufficient to defeat summary judgment.” Id. (citing Bruce, 351 F.3d at 1289). That was so because “if [the sergeant] and [warden] used procedures outlined in [prison] policies to remove [the plaintiff] from the [program] and transfer him back to [maximum security] . . . to punish [the plaintiff] for his lawsuits, their use of these procedures was pretextual and not a reasonable advancement of the legitimate penological goal of stopping prison gang activity.” Id. Thus, the Ninth Circuit held that there was a genuine issue of material fact as to whether the defendants' actions reasonably advanced a legitimate penological purpose. Id.
As in Johnson, the Court concludes that the parties' conflicting evidence presents a genuine dispute of material fact with respect to Defendants' retaliatory motive, which means that Defendants' proffered justification for their actions (i.e., Defendants only moved Jay to “avoid any further escalation of conflict” between him and Rodriguez (see Defs.' Mot. at 7-9)) is not enough to defeat summary judgment. See Johnson, 55 F.4th at 1202. Thus, the Court recommends that the district judge deny Defendants' motion for summary judgment on this ground.
c. Additional Considerations
Defendants also suggest in their motion that Jay fails to demonstrate that Rodriguez, Hyde, or Sanchez personally participated in any constitutional deprivation. (See Defs.' Mot. at 910.) The Court previously rejected this argument. See Jay, 2022 WL 17834314, at *4 (“Accepting Jay's factual allegations as true, it is reasonable to infer that Sanchez, Hyde, and Rodriguez worked together to get Jay removed from Unit 1 and his job in Unit 1 as ‘punishment' for his grievances or lawsuit against them. Jay therefore has alleged sufficient facts to show that each defendant had, at a minimum, ‘some involvement' in the conduct that allegedly caused the violation.”) (citations omitted). Given the facts discussed above, the Court once again recommends that the district judge reject this argument.
Defendants also emphasize that Jay acknowledges that he does not have a constitutionally protected interest in his unit job or housing assignment, and that Jay was again “hired as an orderly” after his transfer to another housing unit. (Defs.' Mot. at 11, citing Aggrey Decl. Ex. 101 at 1, noting that at some point after August 3 and before November 17, 2021, OSCI “assigned Jay to the yard/multi and as a relief orderly in [his new] unit[.]”) As the Court previously explained, a plaintiff is not required to demonstrate that the allegedly retaliatory adverse action, in and of itself, amounted to a constitutional deprivation. See Jay, 2022 WL 17834314, at *3. Rather, a plaintiff need only show that the actions would not have occurred absent his engagement in protected activity. See id.
For all of these reasons, there are genuine issues of material fact that preclude summary judgment in Defendants' favor.
C. Qualified Immunity
Defendants also argue that the Court should enter summary judgment because they are entitled to qualified immunity. (Defs.' Mot. at 2, 6, 10.) The Court disagrees.
“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Chavez, 12 F.4th at 995 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). According to the Supreme Court,
“[a] clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Id. (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)).
Defendants are not entitled to qualified immunity here. As discussed, Jay has raised a genuine issue of material fact as to whether Defendants violated his First Amendment rights. See generally Evans v. Skolnik, 997 F.3d 1060, 1064 (9th Cir. 2021) (explaining that a “government official is entitled to qualified immunity from a claim for damages unless the plaintiff raises a genuine issue of fact showing . . . a violation of a constitutional right”) (simplified). Additionally, Defendants do not appear to dispute (see Defs.' Mot. 10-12) that at all relevant times, it was clearly established that correctional officers violate the First Amendment by retaliating against an AIC for filing grievances or civil lawsuits. See Sawyer v. MacDonald, 768 Fed.Appx. 669, 672 (9th Cir. 2019) (recognizing that “[t]he law was clearly established in 2012 that correctional officers violate the First Amendment by retaliating against [AIC]s for exercising the First Amendment right to file prison grievances” (citing Brodheim, 584 F.3d at 1269)); Entler, 872 F.3d at 1041 (explaining that it “clearly established when [the AIC] filed his grievances in 2012 that he had the constitutional right to do that,” and “it was also clearly established that [the AIC] had the time-honored right to pursue civil litigation, a right liberally exercised for over forty years”) (simplified).
For these reasons, the Court recommends that the district judge deny Defendants' motion for summary judgment on qualified immunity grounds.
D. Injunctive Relief
Finally, Defendants argue that they are entitled to summary judgment because the injunctive relief Jay seeks-i.e., an injunction “permanently enjoining Defendants and their agents and employees from subjecting [him] to conduct of the type and degree alleged herein” (Am. Compl. at 10, ECF No. 6)-is not “narrowly drawn” and thus “does not comply with the PLRA's restriction on prospective injunctive relief.” (Defs.' Mot. at. 2, 6-7, quoting 18 U.S.C. § 3626(a)(1)(A).)
“Under this provision of the PLRA, a federal district court may not order ‘prospective relief' unless it finds the relief is ‘narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.'” Kelly v. Wengler, 822 F.3d 1085, 1095 (9th Cir. 2016) (quoting 18 U.S.C. § 3626(a)(1)(A) and citing 18 U.S.C. § 3626(g)(7)). Given the genuine issues of material fact identified above, it is premature to address Jay's entitlement to injunctive relief, or whether the relief Jay seeks is or can be narrowly drawn. Thus, the Court recommends that the district judge deny Defendants' motion on this ground.
II. JAY'S MOTION
Jay argues that there are no genuine issues of material fact that preclude summary judgment in his favor on his First Amendment claims. (See Pl.'s Mot. at 1-19.) The Court disagrees.
In the reviewing Jay's motion, the Court must view the evidence in the light most favorable to Defendants, not Jay, because Jay is the moving party with respect to his motion. When so viewed, for the reasons discussed above, there are genuine issues of fact regarding retaliatory motive and whether Defendants' actions reasonably advanced a legitimate penological purpose. Thus, the Court recommends that the district judge deny Jay's motion for summary judgment.
CONCLUSION
For the reasons stated, the Court recommends that the district judge DENY Jay's motion for summary judgment (ECF No. 21) and DENY Defendants' motion for summary judgment (ECF No. 26).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.