Opinion
6:22-cv-00469-SB
11-14-2022
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 litigant in the custody of the Oregon Department of Corrections (“ODOC”) filed this action under 42 U.S.C. § 1983 (“Section 1983”) against defendants Officer Gustavo Rodriguez, Officer Katie Sanchez, and Captain Jonathan Hyde (together, “Defendants”), alleging violations of his First Amendment rights. This matter comes before the Court on Defendants' motion to dismiss Jay's amended complaint pursuant to FED. R. CIV. P. 12(B)(6). (ECF No. 11.) 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 under 28 U.S.C. § 636. For the reasons explained below, the Court recommends that the district judge deny Defendants' motion to dismiss.
The Court accepts as true the facts Jay alleges in his amended complaint and construes those facts in the light most favorable to Jay for the purpose of reviewing Defendants' motion to dismiss. See Austin v. Univ. of Or., 925 F.3d 1133, 1137 (9th Cir. 2019) (holding that at the pleading stage, “[a]ll factual allegations are accepted as true, and all reasonable inferences must be drawn in favor of the plaintiff” (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))).
Jay is an adult in custody (“AIC”) of ODOC and is currently housed at the Oregon State Correctional Institution (“OSCI”). On March 24, 2022, Jay filed the current lawsuit asserting that Defendants retaliated against him for filing grievances against Rodriguez and for his litigation in a separate case against Sanchez and Hyde and other OSCI employees, Jay v. Sanchez et al., Case No. 6:20-cv-01047-SB.
Jay alleges that on June 23, 2021, Rodriguez approached him and told him he was aware that Jay had filed a lawsuit against Sanchez and Officer Jason Sandlin. (Am. Compl. at 4, ECF No. 6.) Rodriguez allegedly told Jay he wanted him fired from his job as a Unit 1 orderly and transferred out of OSCI “to punish him for filing grievances and the lawsuit.” (Id. at 3.) Rodriguez then contacted Hyde-who knew Jay had a lawsuit pending against Sanchez and him-and had Hyde transfer Jay out of Unit 1 and into Unit 4, citing Jay's various grievances. (Id.)
Jay alleges that Rodriguez knew the move to Unit 4 would result in Jay losing his Unit 1 orderly job. (Id. at 7.) Jay further alleges that Rodriguez had him moved to Unit 4 and “fired” from his job “on behalf of” Sanchez and Hyde. (Id. at 3.) Jay claims that Sanchez worked on Unit 1 with Rodriguez and alleges that she retaliated against him by “weaponizing” Rodriguez and “instigating a constant ‘campaign of harassment'” against him through Rodriguez. (Id. at 5.)
DISCUSSION
I. STANDARDS OF REVIEW
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (citing Iqbal, 556 U.S. at 678) (simplified).
Courts “construe pro se complaints liberally and may only dismiss a pro se complaint for failure to state a claim if ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011), abrogated on other grounds as recognized in Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015) (citation omitted). However, “a liberal interpretation of a [pro se] civil rights complaint may not supply essential elements of the claim that were not initially pled,” and “[v]ague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.” Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992), as amended (Oct. 9, 1992) (quoting Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). Courts must “take a plaintiff's allegations in the complaint as true,” but “are not required to indulge unwarranted inferences.” Doe Iv. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (simplified).
II. ANALYSIS
Defendants argue that the Court should dismiss Jay's First Amendment retaliation claim for four reasons: (1) the Prison Litigation Reform Act (“PLRA”) does not allow a plaintiff to recover the types of remedies Jay seeks; (2) Jay has not plausibly alleged that Defendants took an adverse action against him or that their actions chilled his speech; (3) Jay has failed to plead that each defendant personally participated in the alleged violations of his rights; and (4) Defendants are entitled to qualified immunity from damages. (See Defs.' Mot. Dismiss at 3-10.)
A. Remedies
Defendants argue that the PLRA bars the “vague” injunctive relief Jay seeks here. (Id. at 3-4.) However, “[a] prayer for relief does not provide any basis for dismissal under Rule 12[.]” Jordan v. United States, No. 15-CV-1199 BEN (NLS), 2015 WL 5919945, at *2-3 (S.D. Cal. Oct. 8, 2015). Indeed, “[b]ecause a 12(b)(6) motion to dismiss challenges the legal sufficiency of the pleadings, not the appropriateness of the relief sought, a motion to dismiss is not the proper mechanism to challenge a prayer for relief.” Com. Point Cap., Inc. v. First Data Corp., No. 19-CV-556-W (LL), 2019 WL 7020057, at *10 (S.D. Cal. Dec. 20, 2019). Although the PLRA may circumscribe the relief ultimately available to Jay, “a Rule 12(b)(6) motion is an improper vehicle to challenge the requested relief.” Mecum v. Wells Fargo Bank, N.A., No. C15-1302JLR, 2016 WL 1047435, at *6 (W.D. Wash. Mar. 9, 2016). Defendants are therefore not entitled to dismissal of Jay's retaliation claim on the basis of the remedies he seeks. See id. (denying the defendants' motion to dismiss to the extent it challenged the plaintiff's prayer for relief).
Further, Defendants misconstrue § 1997e(e) of the PLRA in arguing that Jay is barred from recovering for emotional distress or mental suffering because he “does not allege any physical injury in his complaint[.]” (Defs.' Mot. Dismiss at 9) (citing 42 U.S.C. § 1997e(e)). As the Ninth Circuit explained in Oliver v. Keller, 289 F.3d 623 (9th Cir. 2002), “§ 1997e(e) applies only to claims for mental and emotional injury.” id. at 629. Thus, if an AIC has failed to allege a physical injury and is “barred by § 1997e(e) from claiming mental or emotional injury, the [AIC] may still seek other forms of redress unrelated to mental or emotional injury.” Pompa v. Bowser, No. 2:19-cv-00628-MO, 2020 WL 6287471, at *4 (D. Or. Oct. 27, 2020) (citing Oliver, 289 F.3d at 629-30). Here, Jay seeks compensatory damages for alleged violations of his First Amendment rights, not for mental or emotional injury. His claim for relief is therefore not barred by § 1997e(e). See Dillon v. Clackamas Cnty., No. 3:14-cv-00820-YY, 2018 WL 4523139, at *7 (D. Or. May 2, 2018) (noting that the plaintiff's claims were “not barred by § 1997e(e)” where, “[a]s in Oliver, plaintiffs' claims for compensatory, nominal, and punitive damages are premised upon violations of their constitutional rights, and not on alleged mental or emotional injuries”).
B. Retaliation Claim
Defendants argue that Jay fails to state a First Amendment retaliation claim because he has not sufficiently pleaded that Defendants took an adverse action against him or that their actions chilled his First Amendment rights. (Defs.' Mot. Dismiss at 7-8.)
It is well established that AICs have “a First Amendment right to file grievances and to be free from retaliation for doing so.” Singh v. Washburn, No. 2:14-cv-01477-SB, 2016 WL 1039705, at *7 (D. Or. Feb. 5, 2016) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009), report and recommendation adopted, 2016 WL 1045523 (D. Or. Mar. 15, 2016). “Retaliation against prisoners for their exercise of this right is itself a constitutional violation, and prohibited as a matter of ‘clearly established law.'” Brodheim, 584 F.3d at 1269 (citation omitted). To state a First Amendment retaliation claim, an AIC must allege five elements: “(1) [a]n assertion that a state actor took some adverse action against an [AIC] (2) because of (3) that [AIC]'s protected conduct, and that such action (4) chilled the [AIC]'s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (simplified).
Here, Defendants challenge whether the transfer of Jay to Unit 4 and the resulting loss of his orderly job constitute an “adverse action” because, they argue, the transfer was not “disciplinary in nature” and Jay had no protected liberty interest in staying in Unit 1 or keeping his orderly position. (Defs.' Mot. Dismiss at 11.) Although it is accurate that AICs “generally have no constitutionally-protected liberty interest in being held at, or remaining at, a given facility[,]” Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995), “a plaintiff is not required to prove the alleged retaliatory action, in itself, violated a constitutional right.” id. Rather, “[t]he interest cognizable in a retaliation claim is the right to be free of conditions that would not have been imposed but for the alleged retaliatory motive.” Singh, 2016 WL 1039705, at *7; see also Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (finding that the plaintiff adequately alleged adverse action by alleging that prison officials transferred him to a different prison to retaliate against him for engaging in protected activity). Thus, by alleging that the transfer to Unit 4 “would not have ever happened” had he not “participated in his right to the protected conduct” (Am. Compl. at 3), Jay has adequately pleaded adverse action, the first element of a retaliation claim. SeeBelmonte v. Winkfield, No. 2:19-cv-1189 AC P, 2019 WL 3457997, at *4 (E.D. Cal. July 31, 2019) (noting that “[t]he adverse action need not be an independent constitutional violation” (citing Pratt, 65 F.3d at 806)).
Jay also adequately pleads the fourth element of a retaliation claim. He alleges that Defendants' actions had “a chilling effect on his First Amendment Right[s],” but Defendants argue that Jay's claim is not plausible because he continued to file grievances during the period in question. (Defs.' Mot. Dismiss at 8.) Jay acknowledges that he continued to file grievances, as well as the present action, but under Ninth Circuit law, “[a plaintiff's] allegation that his First Amendment rights were chilled, though not necessarily silenced, ‘is enough to perfect his claim[.]'” Rhodes, 408 F.3d at 562. As the Ninth Circuit explained in Rhodes, “it would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity[.]” Id. (quoting Mendocino Env't Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999)). Because Jay has plainly alleged that Defendants' actions chilled his First Amendment rights, Jay has satisfied this element of a retaliation claim at the pleading stage. SeeRhodes, 408 F.3d at 568-69 (noting that the question is “whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities”) (emphasis in original); see also Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (“That the retaliatory conduct did not chill the plaintiff from suing the alleged retaliator does not defeat the retaliation claim at the motion to dismiss stage.”).
Regarding the final element of a retaliation claim, Defendants contend that Jay was transferred to Unit 4 “for the mental health and well-being” of both Jay and Rodriguez, and they argue that the “well-being of officers and inmates is a legitimate correctional goal.” (Defs.' Mot. Dismiss at 8.) However, Defendants' argument goes to the sufficiency of the evidence and whether Jay can ultimately prove that Defendants' actions failed to advance “a legitimate correctional goal.” Rhodes, 408 F.3d at 568. A Rule 12(b)(6) motion only “tests the legal sufficiency of a claim[,]” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001), and Jay plainly alleges that his transfer to Unit 4 “did not even reasonably advance any legitimate correctional goal” at OSCI. (Am. Compl. at 8.) At this early stage of litigation, Jay's allegation is sufficient to satisfy the final element in stating a First Amendment retaliation claim. See Watison, 668 F.3d at 1116 (denying the defendants' motion to dismiss a retaliation claim after finding the plaintiff had “implicitly pleaded the fifth element” because “threatening to punch a prisoner serves no penological interest”).
C. Defendants' Personal Participation
Defendants argue that Jay names Rodriguez and Sanchez as defendants but “fails to state any concrete actions that either officer took” to violate his constitutional rights. (Defs.' Mot. Dismiss at 4.) Defendants also argue that “Captain Hyde was acting in a supervisory capacity when he reassigned Plaintiff to a new unit[.]” (Id. at 5.)
In a Section 1983 lawsuit, “each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at 677. “An officer's liability under Section 1983 is predicated on his ‘integral participation' in the alleged violation.” Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (citation omitted). “‘Integral participation' does not require that each officer's actions themselves rise to the level of a constitutional violation . . . [b]ut it does require some involvement in the conduct that allegedly caused the violation.” id. (simplified).
Here, Jay pleads adequate facts regarding the personal participation of Rodriguez by alleging that Rodriguez first told him he wanted him fired from his job and transferred out of Unit 1 and then Rodriguez spoke with Hyde and requested that Jay be transferred. (See Am. Compl. at 4.) Regarding Hyde's alleged role in the deprivation of his rights, Jay does not seek to hold Hyde liable for his supervisory role, as Defendants contend. Rather, Jay alleges that Hyde worked with Rodriguez and Sanchez “as a unit” against him, and that Hyde improperly granted Rodriguez's request to transfer Jay out of Unit 1. (See id. at 5-6.) Jay further alleges that Sanchez “conspired” with Rodriguez and Hyde by “weaponizing” Rodriguez. (Id. at 5, 9.) The Court acknowledges that “weaponize” is an imprecise term and that “pleadings . . . must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazilv. U.S. Dep't of the Navy, 66 F.3d 193, 199 (9th Cir. 1995). However, 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. Blankenhorn, 485 F.3d at 481; cf. DePalm v. Asuncion, No. 2:18-CV-01803-AB-KES, 2018 WL 6003582, at *4 (C.D. Cal. Mar. 21,2018) (holding that the plaintiff failed to “allege with sufficient detail who retaliated against him, when, or how”).
D. Qualified Immunity
Finally, Defendants argue the Court should dismiss Jay's claim because they are entitled to qualified immunity from damages. (Defs.' Mot. Dismiss at 10.)
“The doctrine of qualified immunity shields government officials performing discretionary functions from liability for damages ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Dunn v. Castro, 621 F.3d 1196, 1198-99 (9th Cir. 2010) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A qualified immunity analysis consists of a two-step procedure. id. at 1199. First, the court must determine “whether the facts alleged, construed in the light most favorable to the injured party, establish the violation of a constitutional right.” id.(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Next, the court must determine “whether the right is clearly established such that a reasonable government official would have known that ‘his conduct was unlawful in the situation he confronted.'” id. (quoting Saucier, 533 U.S. at 202).
“Qualified immunity is an affirmative defense that must be raised by a defendant.” O'Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (quoting Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001)). The Supreme Court has emphasized that the issue of qualified immunity be decided “at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (simplified). However, the Ninth Circuit recently instructed that the issue is one not generally resolved on a motion to dismiss. See Keates v. Koile, 883 F.3d 1228, 1234-35 (9th Cir. 2018) (denying motion to dismiss on basis of qualified immunity and noting that “[determining claims of qualified immunity at the motion-to-dismiss stage raises special problems for legal decision making”). In deciding qualified immunity on a motion to dismiss, “[i]f the operative complaint ‘contains even one allegation of a harmful act that would constitute a violation of a clearly established constitutional right,' then plaintiffs are ‘entitled to go forward' with their claims.” id. at 1235 (citing Pelletier v. Fed. Home Loan Bank of San Francisco, 968 F.2d 865, 872 (9th Cir. 1992)).
As the Ninth Circuit remarked in Keates, the “denial of qualified immunity at this stage of the proceedings does not mean [the] case must go to trial.” Id. (quoting O'Brien, 818 F.3d at 936). Indeed, “[o]nce an evidentiary record is developed through discovery defendants will be free to move for summary judgment based on qualified immunity.” Id. (quoting O'Brien, 818 F.3d at 936).
Here, for the reasons discussed above, Jay plausibly alleges Defendants violated his clearly established First Amendment right to file grievances and to be free from retaliation for doing so. Therefore, Defendants are not entitled to qualified immunity at this stage of the litigation. See Keates, 883 F.3d at 1235 (holding that the operative complaint “plausibly allege[d]” the defendants violated the plaintiff's rights and the district court “erred in dismissing” the plaintiff's claim based on qualified immunity); see also Laizure v. Wash. Cnty. by & through Wash. Cnty. Sheriff's Off., No. 3:17-cv-1254-SB, 2018 WL 3638124, at *5 (D. Or. July 13, 2018), report and recommendation adopted sub nom. Laizure v. Washington Cnty., 2018 WL 3636539 (D. Or. July 31,2018) (holding that “[the plaintiff] has pleaded sufficient facts to allege violations of his First and Fourth Amendment rights, and therefore resolving the issue of qualified immunity is not appropriate at this stage of the litigation”). Accordingly, the Court recommends that the district judge deny Defendants' motion to dismiss on the basis of qualified immunity.
CONCLUSION
For the reasons stated, the Court recommends that the district judge DENY Defendants' motion to dismiss (ECF No. 11).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. 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. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.