Yescas v. McCourt

Full title: RAUL A. YESCAS, III, Plaintiff, v. DAN MCCOURT, PRESTON HOWARD, and FRANK…

Court: United States District Court, Southern District of California

Date published: Jul 30, 2024

3:23-cv-00106-TWR-AHG (S.D. Cal. Jul. 30, 2024)

Opinion

3:23-cv-00106-TWR-AHG

07-30-2024

RAUL A. YESCAS, III, Plaintiff, v. DAN MCCOURT, PRESTON HOWARD, and FRANK JOHNSON, Defendants

Honorable Allison H. Goddard United States Magistrate Judge

REPORT AND RECOMMENDATION RECOMMENDING THE COURT: (1) GRANT IN PART AND DENY IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT; AND (2) GRANT PLAINTIFF LIMITED LEAVE TO AMEND [ECF NO. 30]

Honorable Allison H. Goddard United States Magistrate Judge

Before the Court is Defendants' Motion to Dismiss the First Amended Complaint. ECF No. 30. This Report and Recommendation is submitted to United States District Judge Todd W. Robinson pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.3(e) of the United States District Court for the Southern District of California.

I. PROCEDURAL BACKGROUND

On January 10, 2024, with leave of Court, Plaintiff Raul A. Yescas, III (“Plaintiff”) filed his First Amended Complaint (“FAC”) in this action. ECF No. 29. The FAC is identical to Plaintiff's original Complaint in this action, except that Plaintiff has now attached certain exhibits he previously attached to his Motion for Leave to Amend (ECF No. 22). Compare ECF No. 29 with ECF No. 1. Thus, as before, Plaintiff alleges in the FAC that Defendant McCourt, a supervisor at Richard J. Donovan Correctional Facility (“RJD”) where Plaintiff was previously housed, and Defendants Howard and Johnson, who were civilian plumbers employed by RJD, violated his First Amendment Rights by using their positions of authority to retaliate against him for reporting and seeking redress for grievances against them, including by refusing to let Plaintiff continue to work in his prison job as a plumber. Id. at 2.

On January 24, 2024, Defendants filed a Motion to Dismiss the FAC (ECF No. 30), which is “substantially the same” as the Motion to Dismiss the original Complaint that Defendants previously filed, “with some slight changes to address issues raised by the Court in the Court's Order granting Plaintiff leave to amend.” Id. at 10 n.1. In the Motion to Dismiss the FAC, Defendants assert the following grounds to support dismissal:

(1) the FAC fails to meet the pleading requirements of Rule 8 because the factual allegations “are presented in a confusing and disjointed fashion”;

(2) The FAC fails to state a claim for retaliation because:

(a) Plaintiff does not sufficiently allege that he was engaged in constitutionally protected conduct,

(b) refusing to allow an inmate to work or issuing a 128 Chrono are not adverse actions for purposes of a retaliation claim,

(c) Plaintiff's allegations do not address whether the purportedly retaliatory actions were for a legitimate penological purpose, and

(d) Plaintiff does not establish causation between any alleged protected activity and adverse actions;

(3) Plaintiff's allegations against Defendants are generally too vague to state any claim against them;

(4) Plaintiff has failed to state a claim for conspiracy under § 1983;

(5) Plaintiff's claims against Defendants in their official capacities are barred by Eleventh Amendment immunity; and

(6) Defendants are entitled to qualified immunity on the claims against them in their individual capacities.

Id. at 10-35.

II. LEGAL STANDARD

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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). In determining whether a complaint meets this standard, the Court considers not only the “allegations contained in the pleadings,” but also “exhibits attached to the complaint, and matters properly subject to judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The Court must “accept all well-pleaded factual allegations in the complaint as true and construe the pleadings in the light most favorable to the plaintiff.” Walker v. Fred Meyer, Inc., 953 F.3d 1082, 1086 (9th Cir. 2020). The Court's obligation to accept alleged facts as true extends to “factual allegations in the exhibits attached to the complaint.” Flathead Irrigation Dist. v. Zinke, 725 Fed.Appx. 507, 509 (9th Cir. 2018) (citing Courthouse News Serv. v. Planet, 750 F.3d 776, 780 n.4 (9th Cir. 2014)). However, the Court “need not . . . accept as true allegations that contradict matters properly subject to judicial notice or by exhibit.” Gonzalez v. Planned Parenthood of L.A., 759 F.3d 1112, 1115 (9th Cir. 2014) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). “Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell, 266 F.3d at 988.

Plaintiff is proceeding pro se in this action, requiring the Court to construe his pleadings liberally. “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers and can only be dismissed 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.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotations and citation omitted). See also Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (explaining that the Court has “an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.”). Further, even if the Court finds it appropriate to grant a motion to dismiss, the Court “should not dismiss a pro se complaint without leave to amend unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (internal quotations and citation omitted).

III. DISCUSSION

As outlined above, Defendants raise a number of arguments in support of their Motion to Dismiss, which the Court will summarize before addressing each argument in turn in more detail.

First, Defendants argue that Plaintiff's FAC does not satisfy the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, because it “lacks any kind of factual chronology or specific allegations explicitly linking each Defendant to clearly articulated theories of liability[,]” preventing Defendants from being able to understand the claims asserted against them. ECF No. 30 at 14. Although the Court found that Plaintiff's initial Complaint-which is identical to the FAC other than the new attachments included in the FAC-stated a retaliation claim sufficient to survive screening, Defendants respectfully disagree with the Court's construction of some of Plaintiff's factual allegations, and argue that this confusion regarding the allegations demonstrates that the pleading does not satisfy Rule 8, leaving Defendants “to guess or speculate as to the claims brought against them[.]” Id. at 15-16.

Second, Defendants argue that to the extent Plaintiff is bringing a retaliation claim against Defendants Howard and Johnson, he has failed to allege sufficient facts in support of that claim, because he does not allege he engaged in protected conduct and only pleads retaliation based on verbal complaints, does not sufficiently allege that Defendants Howard or Johnson took any adverse action against him, and does not address whether Defendants' actions were for a legitimate penological purpose. Id. at 16-24.

Third, to the extent Plaintiff intended to plead retaliation claims against Defendants Howard and Johnson based on factual allegations in the FAC other than their alleged retaliation for making verbal complaints about them to correctional staff, Defendants argue that Plaintiff has failed to sufficiently state any such claims. Id. at 24-25.

Fourth, Defendants argue that Plaintiff has failed to state a claim for retaliation against Defendant McCourt based on McCourt's issuance of a 128-drop chrono against Plaintiff, because, again, Plaintiff fails to allege he was engaged in protected activity, fails to allege that Defendant McCourt was aware of Plaintiff's complaints about or grievance against Defendants Howard and Johnson, does not establish that the issuance of the 128 chrono was an adverse action for purposes of a retaliation claim, does not sufficiently plead causation between any protected activity and any adverse action taken by Defendant McCourt, and does not address whether there was a legitimate penological purpose for Defendant McCourt's actions. Id. at 25-28.

Fifth, Defendants argue that Plaintiff fails to state a claim for retaliation against Defendant McCourt based on any other allegations regarding McCourt, because the other allegations about McCourt in the FAC are confusing, disjointed, and do not appear to have any connection to one another, and fail to plausibly suggest a nexus between Plaintiff's alleged protected activity and any alleged adverse actions taken by McCourt. Further, to the extent that Plaintiff's FAC identifies his transfer out of RJD as an adverse action, Defendants argue he cannot attribute that action to McCourt. Id. at 28-30.

Sixth, although the Court did not identify a conspiracy claim in the screening order, Defendants argue that Plaintiff has failed to sufficiently state a conspiracy claim against Defendants under § 1983. Id. at 30-31.

Seventh, Defendants argue that all of Plaintiff's claims against Defendants in their official capacities are barred by Eleventh Amendment immunity. Id. at 31-32.

Eighth, Defendants argue that each of them is entitled to qualified immunity on Plaintiff's individual-capacity claims against them. Id. at 32-34.

Lastly, Defendants argue that the Court should dismiss the FAC without further leave to amend, on the basis of futility. Id. at 35.

Before addressing each of Defendants' arguments, the Court will provide a summary of the factual allegations in the FAC and attached exhibits to help guide the discussion.

A. Summary of Factual Allegations in the FAC

In support of his retaliation claims against Defendants Howard and Johnson, Plaintiff alleges that on December 20, 2021, he was working as a plumber with Howard and Johnson in Building 13 of Facility C at RJD. ECF No. 29 at 3. Defendants Howard and Johnson refused to fix the clogged sinks in cells 201 and 202 of the building, which had been clogged for six days and which had sewage coming out of them. Id. Plaintiff alleges that Howard and Johnson refused to fix the sinks because they wanted to work overtime on another yard instead. Id. Plaintiff “informed the defendant[s] that I would be reporting this to staff and the Sgt.” Id. Plaintiff alleges Defendants Howard and Johnson became angry and left. Id. Plaintiff asserts he then informed staff and Sergeant Banuelos of the situation. Id.

The following morning, Plaintiff alleges he went to the program office to report Howard and Johnson to Sergeant Kilough, and while he was speaking to Sergeant Kilough, Plaintiff saw Howard and Johnson drive by. Id. Plaintiff went to report to work after speaking to Sergeant Kilough, but he alleges that Defendants Howard and Johnson “saw the Plaintiff attempting to report to work and just ignored him and drove of[f].” Id. Plaintiff again attempted to report to work by meeting Howard and Johnson at Building 13, but they refused to allow him to work “[i]n retaliation for reporting the Defendant[s] to staff, [] yet allowed the other worker to work discriminating against the plaintiff.” Id.

On the same day-December 21, 2021-Plaintiff filed a written grievance against Defendants Howard and Johnson, which was stamped as “Received” by CDCR on December 23, 2021. ECF No. 29-1 at 39-40. Plaintiff included essentially the same allegations in the written grievance as he does in the FAC regarding the events of December 20 and 21-that is, that Howard and Johnson disregarded their assigned work orders for cells 201 and 202 in Building 13 because they preferred not to do the work at that time. Id. at 39. In the written grievance, Plaintiff includes the additional facts that Defendants Howard and Johnson lied to Sergeant Banuelos and said that they would “be back in a minute” to complete the work on the sinks, but when they did not return, Plaintiff and Sergeant Banuelos went to Building 13 so that Plaintiff could temporarily fix the clogged sinks. Id. Similar to the allegations in the FAC, Plaintiff states he reported these events to Sergeant Kilough the following morning, and that when Defendant Howard came onto the yard, Plaintiff attempted to report to work at Building 12, but Howard ignored him and drove away. Id. Plaintiff further states in the written grievance that he then reported to Building 13 to wait for Defendants Howard and Johnson to finish the work on the sinks. Id. Plaintiff includes the additional fact that while there, he spoke to Correctional Officer Navarro about his belief that Howard and Johnson were retaliating against him for telling the Sergeant that they did not finish their work orders, by refusing to allow him to work “and possibly writing me up fa[]lsely[.]” In another exhibit attached to the FAC, Plaintiff provides an interview form signed by Officer Navarro and dated December 21, 2021, in which Plaintiff asked Navarro to confirm the following: “On 12/21/21 at about 9 am. Did I tell you before my boss came into 13 BLK that he would say he didn't need me and would write me up as retaliation for talking to the [Sergeant] about them not finishing the[ir] work last night?” ECF No. 29-1 at 41. Officer Navarro responded, “Yes.” Id. Plaintiff states in the December 21 written grievance that, after he spoke to Officer Navarro, he stood by awaiting work orders from Defendants Howard and Johnson to show that he was still ready, willing, and able to work. Id. at 39. When they did not give him any work orders, he attempted to complete some plumbing work in cell 120 of Building 13, but Defendants Howard and Johnson then said to Plaintiff “that they would not let me work anymore because I told on them to the Sgt. about them not finishing the[ir] work orders.” Id. at 40. Plaintiff alleges that the refusal to allow him to work is a violation of the inmate work training incentive program and constitutes retaliation under the First Amendment.

Returning to the allegations against Defendants Howard and Johnson in the body of the FAC, Plaintiff alleges that “the retaliation continued and got worse once the Plaintiff grievance[d] the[ir] retaliation and continued discrimination that continued until[] the Plaintiff was transfer[r]ed [due] to the retaliation and fa[]lse safety issues that were never verified. [A]ll this was done with the Defendant Dan McCourt's help.” ECF No. 29 at 3.

In support of his claim that the retaliation of Defendants Howard and Johnson “continued and got worse” after Plaintiff brought a written grievance against them, as well as his retaliation claim against Defendant McCourt, Plaintiff alleges the following facts. Beginning on January 4, 2022, Defendant McCourt conspired with Defendants Howard and Johnson to retaliate against Plaintiff, including by (1) McCourt making false claims against Plaintiff and filing a “128 drop crono” to have him fired from his position without affording him a hearing, (2) McCourt telling another inmate named Knight that Knight “would not get paid and could not work because of the Plaintiff['s] grievance” against Defendants McCourt, Howard, and Johnson, leading Knight to kick Plaintiff off the yard and resulting in Plaintiff being sent to administrative segregation, (3) Howard and Johnson telling other inmates that they would fix plumbing problems in their yard if not for Plaintiff's written grievance in order to incite violence against Plaintiff by the other inmates, and (4) Defendants claiming false safety concerns in order to have Plaintiff transferred to another prison. ECF No. 29 at 4; ECF No. 29-1 at 6, 42.

The attachments to the FAC shed further light on the allegations regarding Defendants' conduct after Plaintiff filed his written grievance against Johnson and Howard on December 21, 2021. Defendant McCourt is the author of the January 4, 2022 Rules Violation Report (“RVR”) attached to the FAC, in which he reports that Plaintiff committed the violation of “Disrespect w/out Potential for Violence Disruption” on December 21, 2021, on the basis that Plaintiff did not report to Housing Unit 14 as directed by Defendant Howard, that he was dishonest about having completed a certain work order in Housing Unit 13, and that he refused to return to his own housing unit after being told to do so by Defendant Howard. ECF No. 29-1 at 61. Defendant McCourt further states in the RVR that Plaintiff “has been argumentative on and off with different staff throughout his employment with Plant Operations as a plumber and has created a hostile work environment[,]” and that his “blatant disrespect and dishonesty are very frustrating and cause delays in the completion of work orders.” Id. This RVR is what Plaintiff refers to as a “128-drop chrono” in his FAC. See ECF No. 30 at 23 (Defendants explaining the definition of a 128 chrono under 15 C.C.R. § 3000, and identifying McCourt's RVR as the 128 chrono at issue).

In the FAC, Plaintiff alleges that Defendant McCourt falsified the allegations in the RVR as part of a conspiracy with Defendants Howard and Johnson to retaliate against Plaintiff. ECF No. 29 at 4. After the RVR was issued, Plaintiff submitted a written grievance against Defendant McCourt on February 22, 2022, complaining that the RVR contained false statements because Defendant McCourt was not present and was merely reporting the facts as conveyed to him by Defendants Howard and Johnson, and that he was fired from his plumbing job on the basis of the RVR without due process because he was given no opportunity to provide witnesses or evidence in his defense. In the grievance against Defendant McCourt, Plaintiff states that “[t]he events which took place didn't get reported by those really involved [i.e., Defendants Howard and Johnson] because if they had actually wrote the RVR as the actual parties involved, they would have been subjected to liability for retribution for inmate reporting staff misconduct under 15 CCR § 2084(d).” ECF No. 29-1 at 52. He states that had he been given the opportunity to provide evidence in his defense, camera footage showing the incident as well as the witness statements Plaintiff gathered would have contradicted the version of events as reported in the RVR. Id. For example, Plaintiff contends in the grievance that “when I reported their failures to do work orders which are creating inhuma[ne] conditions to the Sgt. that day (see GA-22 signed by Sgt.) they falsely reported my refusal to work (see GA-22 of staff witnessing my attempt to work but being refused by the two[)]. Then driving off which is on camera. All of which witnessed. Therefore this RVR or 128 drop chrono is not only based on false documentation of facts[,] it's written by a non-involved party, without proper due process, and is based on retribution and spite alone[.]” Id. Plaintiff further asserts that the loss of his job assignment caused a change in his credit earning status and earned pay status. Id.

In the FAC, Plaintiff alleges that after he filed the February 2022 written grievance against Defendant McCourt, Defendant McCourt retaliated by informing an inmate named Knight who was housed in Plaintiff's facility that Knight would not get paid and could not work because of Plaintiff's grievance, which led to Plaintiff being “ki[c]ked off the yard by inmate Knight and sent to [the administrative segregation unit].” ECF No. 29 at 4. Plaintiff further alleges that Defendant McCourt fabricated safety concerns to have Plaintiff sent to another prison, “in hope that no suit would come and to get rid of the problem, which was the Plaintiff for reporting the[ir] misconduct and retaliation all in order to silence the Plaintiff.” Id. In support of that allegation, Plaintiff attached to the FAC an Administrative Segregation Unit Placement Notice dated March 3, 2022, which states that Plaintiff was placed in the Administrative Segregation Unit based on a note found in the mailroom alleging that Plaintiff was conspiring to stab an RJD staff member. ECF No. 29-1 at 33. Plaintiff also attached to the FAC an Appeal of Grievance form dated March 27, 2022, in which he states that Howard and Johnson “continued to retaliate against me for months, and [incited] inmates against me by informing inmates on C-yard that if I was on the yard or if I lost my job[,] that they (Preston [Howard] and Frank [Johnson]) would come to the yard more often to fix inmates['] plumbing problems, but because of my 602 I filed on them for retaliation, they wanted nothing to do with C-yard.” ECF No. 29-1 at 42.

The Court will now address Defendants' arguments in support of dismissal in turn.

B. Defendants' argument that the FAC does not meet the Rule 8 pleading standard

The Court has already found that the allegations in Plaintiff's initial Complaint, taken as true, were sufficient to state a claim for unlawful retaliation under the First Amendment. ECF No. 5 at 5-6. Because the FAC is identical to the Complaint except that it includes additional facts in the newly attached exhibits, the Court should reject Defendants' first argument that the allegations in the FAC do not meet the Rule 8 pleading standard. The approach to construing the allegations in the FAC urged by Defendants would violate the Court's obligations to view the facts in the light most favorable to Plaintiff and to construe pro se filings liberally.

The Court acknowledges Defendants' position that some of the facts set forth in the Court's screening order “misinterpret the facts as they were actually set forth in the Complaint.” ECF No. 30 at 11. However, Defendants' argument on this point does not establish that the factual allegations are too disjointed or confusing to properly state a claim for retaliation. First, Defendants disagree with the Court's interpretation of Plaintiff's Complaint in the screening order that “Howard and Johnson allegedly saw Plaintiff reporting to the prison program office to inform Sergeant Kilough of the incident, and subsequently refused to allow Plaintiff to work with them.” ECF No. 5 at 5. Defendants assert that “Plaintiff did not actually make th[e] allegation” that “Defendants saw Plaintiff reporting Defendants to Sgt. Kilough.” ECF No. 30 at 11 n.3. Instead, Defendants argue “the allegations made by Plaintiff were that Plaintiff (on the day after the dispute regarding the sinks), ‘went to the program office to speak to Sgt. Kilough about the problem. When the Plaintiff saw Defendants drive by he then went to report to work.' Plaintiff only alleges that he eventually saw Defendants drive by, not that Defendants saw Plaintiff in Sgt. Kilough's office or saw Plaintiff complaining to, or were aware of Plaintiff complaining to, Sgt. Kilough.” Id. at 16.

Second, Defendants disagree with the portion of the Court's screening order stating that Plaintiff alleged “McCourt then told an inmate housed in one of the cells with the sink issues that the inmate would not be paid or allowed to work because of Plaintiff and his cellmate's grievances against McCourt, Howard, and Johnson.” ECF No. 5 at 6. Arguing that Plaintiff establishes “no actual connection between Inmate Knight and any of the alleged bad acts of Defendants[,]” Defendants note that Plaintiff alleges the cells with sink issues were cells 201 and 202 “in 13 building.” ECF No. 30 at 15 (quoting ECF No. 29 at 3). However, in the FAC, Plaintiff identifies Inmate Knight as being housed in cell 201 in “building 12,” not in the building with sink issues. Id.

Defendants assert that the fact that there is confusion as to what Plaintiff's allegations actually are should compel a finding that the FAC “is so unclear and confusing it does not satisfy the requirements of Rule 8.” Id. at 16. The Court disagrees. First, at the motion to dismiss stage, the Court is obligated to view the facts in the FAC in the light most favorable to Plaintiff and to resolve all doubts in Plaintiff's favor. Preskar v. United States, 248 F.R.D. 576, 583 (E.D. Cal. 2008), report and recommendation adopted, 2008 WL 802925 (E.D. Cal. Mar. 24, 2008). “A complaint should not be dismissed unless a plaintiff could prove no set of facts in support of his claim that would entitle him to relief.” Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). And at any stage of the case, the Court is required to construe pro se filings liberally, which requires the Court to make inferences and to connect facts in the FAC with other facts reflected by the exhibits. The Court must presume that “general allegations” in the complaint “embrace those specific facts that are necessary to support the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). More importantly, the minor discrepancies between Defendants' and the Court's reading of the factual allegations are immaterial to the core of Plaintiff's First Amendment retaliation claim.

Regarding how to properly construe Plaintiff's allegations, Plaintiff states clearly in the FAC that he “informed” Defendants Howard and Johnson that he “would be reporting” their interaction regarding the sinks “to staff and the Sgt.” ECF No. 29 at 3. In the allegations immediately following, Plaintiff states:

Angry at the Plaintiff the defendants left, the Plaintiff then informed staff and the Sgt. Banuelos of the situation. The next morning the Plaintiff went to the program office to speak to Sgt. Kilough about the problem. When the Plaintiff saw the defendants drive by he then went to report to work. The Defendants saw the Plaintiff attempting to report to work and just ignored him and drove of[f]. The plaintiff then went to 13 building to await the defendants so they may fix the inhuman[e] problem. In retaliation for reporting the Defendant[s] to staff, the[y] refused to allow the Plaintiff to work, yet allowed the other workers to work discriminating against the plaintiff. This retaliation continued and got worse once the Plaintiff grievance[d] th[eir] retaliation and continued discrimination that continued until[] the Plaintiff was transfer[r]ed [due] to the retaliation and fa[]lse safety issues that were never verified. All this was done with the Defendant Dan McCourt's help. All the defendants conspired against the Plaintiff for reporting, and grievanc[]ing the[ir] retaliation, which his 1st Amend. U.S. Const. right to free speech, reporting, and redress of grievance.

Id. Construing Plaintiff's allegations liberally and connecting the facts in one sentence to the facts in the next, the Court finds it clear Plaintiff is alleging that Defendants Howard and Johnson knew he reported them. He alleges that he informed them ahead of time that he planned to report them, that they drove by him at the time he was making the report, and that immediately after driving by him while he was making the report, they refused to allow him to work “[i]n retaliation for reporting [them] to staff[.]” Id.

Plaintiff's exhibits lend further support to the finding that Plaintiff has sufficiently alleged that Defendants Howard and Johnson knew about his report to Sergeant Kilough and refused to allow him to work in retaliation. For example, Plaintiff provides an interview statement from Correctional Officer Navarro in which he asks Navarro to confirm, “On 12/21/21 at about 9 am. Did I tell you before my boss came into 13 BLK that he would say he didn't need me and would write me up as retaliation for talking to the [Sergeant] about them not finishing the[ir] work last night?” ECF No. 29-1 at 4. Officer Navarro responded, “Yes.” Id. In the written grievance Plaintiff filed against Defendants Howard and Johnson the same day they did not allow him to report to work, December 21, 2021, Plaintiff states that “they said that they would not let me work anymore because I told on them to the Sgt. about them not finishing their work orders.” ECF No. 29-1 at 40 (emphasis added). Again, the Court's obligation to accept alleged facts as true extends to “factual allegations in the exhibits attached to the complaint.” Zinke, 725 Fed.Appx. at 509. These exhibits establish that, as the events were unfolding in real time, Plaintiff's perception was that Defendants Howard and Johnson were aware of his verbal report to the sergeant, and that they did not allow him to work as a result of that report. Indeed, Plaintiff alleges that Howard and Johson explicitly told him that they would not allow him to work because of his report to the sergeant, which cannot reasonably be construed in any other way than that they knew about the report. To adopt the interpretation urged by Defendants-that Plaintiff fails to allege that Howard and Johnson were even aware of his verbal reports about them-would be to view the facts in the light most favorable to Defendants and to resolve all doubts in their favor. The Court is prohibited from doing so.

From the facts alleged in the initial complaint, the Court made the reasonable inference that Plaintiff was alleging Howard and Johnson became aware of his report to Sergeant Kilough because they saw him making it when they drove by. However, as explained in more detail below in the Court's discussion of whether Plaintiff has sufficiently stated a claim for retaliation, even if Howard and Johnson became aware of the report some other way, that missing fact about how they gained awareness of the report is not material. Plaintiff sufficiently alleges that they were aware of the report and took adverse action against him because of the report.

Nor does the other discrepancy identified by Defendants relate to a material fact. Plaintiff alleges in the FAC that after he filed a written grievance against Defendant McCourt, McCourt retaliated by “inform[ing] inmate Knight in cell 201, building 12, Facility C that Knight would not get paid and could not work because of the Plaintiff['s] grievance and his cell mate Kyle Avery's [] grievance against Dan McCourt and the plumbers. This le[]d to us being ki[c]ked off the yard by inmate Knight and sent to ASU.” ECF No. 29 at 4. The fact that Inmate Knight did not live in one of the cells with the sink issues is not material to whether Plaintiff has stated a claim for retaliation against Defendant McCourt. Plaintiff's allegation is that Defendant McCourt incited violence against Plaintiff by another inmate in retaliation for Plaintiff filing a written grievance against McCourt, which constitutes an adverse action for purposes of a First Amendment retaliation claim. See Arceo v. Salinas, Case No. 2:11-cv-2396, 2019 WL 358704, at *10 (E.D. Cal. Jan. 29, 2019), report and recommendation adopted, 2019 WL 4302203 (E.D. Cal. Sept. 11, 2019). Whether or not the other inmate was housed in a cell with the sink issues is not material to the analysis of whether Plaintiff sufficiently stated a claim for First Amendment retaliation based on those allegations. Nor do Defendants explain why the Court's previous error in conflating cell 201 in building 12 with cell 201 in building 13 renders the allegations in the FAC so confusing or disjointed as to fall short of the Rule 8 pleading standard. The Court should reject Defendants' first argument as inconsistent with its obligations to view the facts in the light most favorable to Plaintiff and to construe his pleadings liberally.

C. Defendants' argument that Plaintiff failed to sufficiently state a retaliation claim

To state a claim for retaliation, a plaintiff must allege that (1) he engaged in protected conduct; (2) the defendant took adverse action against him (the adverse action need not be an independent constitutional violation); (3) a causal connection exists between the protected conduct and the adverse action, which may be shown through an allegation of a chronology of events from which retaliation can be inferred even without direct evidence of retaliatory intent; (4) the adverse action “would chill or silence a person of ordinary firmness from future First Amendment activities”; and (5) the retaliatory action did not advance legitimate goals of the correctional institution. A plaintiff may successfully plead this element by alleging, in addition to a retaliatory motive, that the defendant's actions were arbitrary and capricious, or that they were unnecessary to the maintenance of order in the institution. Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012) (citations omitted).

As outlined above, Defendants attack the sufficiency of Plaintiff's retaliation claim on multiple grounds, arguing that Plaintiff does not sufficiently allege facts to support the first, second, third, or fifth element of a First Amendment retaliation claim. The Court addresses each of these arguments in turn.

i. Whether Plaintiff sufficiently alleged he engaged in protected conduct

Defendants contend that Plaintiff's FAC fails to state a claim for retaliation because the only allegedly protected conduct identified by Plaintiff in the FAC was “1) Plaintiff's act of telling ‘the defendant that [he] would be reporting this to staff and the Sgt.' or 2) Plaintiff's later purported discussion with Sgt. Kilough reporting the misconduct.” ECF No. 30 at 17. Defendants argue that these are insufficient allegations to state a claim for retaliation, because “[v]erbal complaints about work performance of employees is not constitutionally protected conduct.” Id.

The Court rejects this argument for multiple reasons. First, many courts in this Circuit have found that an inmate's verbal threat to file a written grievance against prison staff, as well as verbal complaints about prison staff, are protected conduct that can support a retaliation claim. See, e.g., Uribe v. McKesson, Case No. 08-cv-01285, 2011 WL 9640, at *12 (E.D. Cal. Jan. 3, 2011) (“An inmate's reporting of officer misconduct, or the attempt to do so verbally or in writing, constitutes speech or conduct entitled to First Amendment protection.”) (citing Gifford v. Atchison, Topeka & Santa Fe Ry. Co., 685 F.2d 1149, 1156 n.3 (9th Cir. 1982), a case dealing with a Title VII retaliation claim, for the general principle that “[i]n the retaliation context, there is no ‘legal distinction . . . between the filing of a charge which is clearly protected . . . and threatening to file a charge.'”¹); Merrick v. Ellis, Case No. 5:15-cv-1052, 2015 WL 9999194, at *6 (C.D. Cal. Nov. 30, 2015), report accepted as modified, 2016 WL 447796 (C.D. Cal. Feb. 4, 2016) (rejecting the defendant's similar argument that the plaintiff “had no clearly established right under the First Amendment to be protected against retaliation for his verbal complaints” because “[i]t is well-established that, among the rights they retain, prisoners have a First Amendment right to file prison grievances. So [the defendant's] contention relies solely on the distinction between an oral grievance and a written one. The First Amendment facially makes no such distinction.... Without deciding the issue, the Court has reason to doubt that the form of a grievance is a proper distinction to be drawn in terms of a ‘clearly established right.'”) (internal quotations and citation omitted); Ahmed v. Ringler, Case No. 2:13-CV-1050, 2015 WL 502855, at *4 (E.D. Cal. Feb. 5, 2015), report and recommendation adopted, (E.D. Cal. Mar. 11, 2015) (finding an inmate plaintiff had adequately stated a claim for retaliation at the motion-to-dismiss stage based on the protected conduct of making a verbal complaint about the search and seizure of his property); West v. Dizon, Case No. 2:12-cv-1293, 2014 WL 794335, at *6-8 (E.D. Cal. Feb. 27, 2014), report and recommendation adopted, 2014 WL 1270584 (E.D. Cal. Mar. 26, 2014) (holding that an inmate plaintiff's act of telling the defendant that he was going to file a written grievance against him, as well as making verbal complaints to the defendant's supervisors, were all protected conduct that could serve as the basis of a retaliation claim, even though the plaintiff did not file a written grievance against the defendant until after the defendant issued an allegedly retaliatory RVR); Gossett v. Stewart, Case No. 08-2120-PHX-DGC, 2012 WL 845588, at *15 (D. Ariz. Mar. 13, 2012) (finding an inmate's oral complaint about staff misconduct “constitutes protected conduct under the First Amendment” because, had the plaintiff submitted a written grievance with the same complaint, “there is no question it would be protected conduct. The fact that Plaintiff made his complaint orally . . . should not render the speech less protected.”); Williams v. Bahadur, Case No. 2:13-cv-2052, 2016 WL 758782, at *4-5 (E.D. Cal. Feb. 26, 2016), report and recommendation adopted, 2016 WL 1267842 (E.D. Cal. Mar. 31, 2016) (finding an inmate's verbal complaints about a work assignment that he claimed he was not medically capable of performing to be protected conduct under the First Amendment sufficient to support a retaliation claim against the defendant correctional officer who issued an RVR against the plaintiff for refusing to perform the assigned work duties); Hackworth v. Torres, Case No. 1:06-cv-773, 2011 WL 1811035 at *6 (E.D. Cal. May 12, 2011) (finding the defendants' argument that the plaintiff, who had verbally complained about the prison's deadly force policy during a committee meeting, did not engage in protected conduct because he had not filed a written grievance to be “clearly without merit”). And, although not binding on this Court, the Seventh Circuit has also rejected the proposition “that the form of expression-i.e., written or oral-dictates whether constitutional protection attaches.” Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir. 2006). Thus, the Pearson court “decline[d] to hold that legitimate complaints lose their protected status simply because they are spoken. Nothing in the First Amendment itself suggests that the right to petition for redress of grievances only attaches when the petitioning takes a specific form.” Id.

1 The Ninth Circuit has affirmed the applicability of this principle from Gifford to the prisoner retaliation context. See Entler v. Gregoire, 872 F.3d 1031, 1042 (9th Cir. 2017) (“Thus, in the analogous Title VII retaliation context, we noted-twenty years before Entler was punished-that ‘[w]e see no legal distinction to be made between the filing of a charge which is clearly protected, and threatening to file a charge.' Gifford v. Atchison, Topeka and Santa Fe Ry. Co., 685 F.2d 1149, 1156 n.3 (9th Cir. 1982). We find the Gifford footnote persuasive since we see no material distinction between retaliation in the Title VII context and prisoner retaliation.”).

Second, even if the Court agrees that verbal complaints cannot constitute protected speech forming the basis of a First Amendment retaliation claim, Defendants' characterization of Plaintiff's allegations as encompassing only verbal complaints is inaccurate. As the Court previously explained in its Order granting Plaintiff leave to amend the complaint, Defendants' argument “that Plaintiff's ‘[v]erbal complaints about work performance of employees is not constitutionally protected conduct'” is undermined by the fact that Plaintiff filed a written grievance on a CDCR 602-1 form, in which he claimed that Defendants Howard and Johnson “chose to disregard their assigned work orders for the day,” and he informed correctional officers of their alleged failure to perform the work. ECF No. 28 at 5 (citing ECF No. 22-1 at 39-40). Therefore, and to reiterate the Court's previous order, “Plaintiff did file a written grievance regarding the alleged actions of the Defendants, which Plaintiff alleges violated his First Amendment rights. At a minimum, it is well settled that filing a written grievance is considered protected conduct for purposes of a First Amendment retaliation claim.” ECF No. 28 at 56 (citing Watison, 668 F.3d at 114 (“The filing of an inmate grievance is protected conduct”)).

Acknowledging the Court's prior order on this point, Defendants counter that “Plaintiff has not alleged in the FAC that it was the filing of the [written] grievance identified by the Court that was the catalyst for Defendants' alleged adverse action.” ECF No. 30 at 19. Instead, Defendants assert that Plaintiff alleges only that “it was his complaints and threats of complaints about Defendants' job performance to correctional staff that resulted in the adverse action alleged, not the filing of any grievance by Plaintiff” and that the adverse action Plaintiff alleges “is that Defendants no longer would allow Plaintiff to work for them as an inmate plumber. But Plaintiff made it very clear in his allegations that these actions happened before he filed the grievance identified by the Court as plausibly providing a basis for the retaliation claim.” Id. (emphasis in original). Once again, Defendants mischaracterize the FAC in making this argument.

Plaintiff's FAC clearly alleges that Defendants' “retaliation continued and got worse once the Plaintiff grievance[d] the[ir] retaliation” and that Defendants “conspired against the Plaintiff for reporting and grievanc[]ing the[ir] retaliation, which is his [First Amendment] right to free speech, reporting and redress of grievance.” ECF No. 29 at 3 (emphasis added). Plaintiff makes four other references in the FAC to filing a written grievance against Defendants that precipitated their alleged retaliatory acts. See id. at 4. In addition, Plaintiff attached a copy of the written grievance to his FAC, which establishes that the grievance was dated December 21, 2021 and stamped as received by RJDCF Appeals on December 23, 2021. ECF No. 29-1 at 39-40. Although Plaintiff identifies the actions of Defendants Howard and Johnson in refusing Plaintiff's attempts to report to work on December 21, 2021 as an adverse action that preceded the filing of Plaintiff's first written grievance, the majority of the adverse actions alleged in the FAC took place on or after January 4, 2022, when Defendant McCourt issued the RVR that led to Plaintiff's termination from his job as a plumber.

After Plaintiff filed an additional written grievance against Defendant McCourt on February 25, 2022 based on the issuance of that RVR, Plaintiff alleges that Defendant McCourt took further retaliatory action by inciting violence against Plaintiff by inmate Knight, and by fabricating safety concerns to have Plaintiff transferred to another prison. ECF No. 29 at 4. Plaintiff states clearly in the FAC that it was the filing of this written grievance against McCourt that “then resulted in the defendant Dan McCourt inform[ing] inmate Knight . . . that Knight would not get paid and could not work because of the Plaintiff['s] grievance [] against Dan McCourt and the plumbers.” Id. (emphasis added). Plaintiff also alleges that after he filed his first written grievance, Defendants Howard and Johnson incited other inmates against him “by informing inmates on C-yard that if I was on the yard or if I lost my job. That they (Preston and Frank) would come to the yard more often to fix inmates['] plumbing problems, but because of my 602 I filed on them for retaliation, they wanted nothing to do with C-yard.” ECF No. 29-1 at 42 (emphasis added). Therefore, Plaintiff's written grievance pre-dates nearly all instances of retaliation alleged in the FAC, which occurred on or after January 4, 2022. Id. at 4. Moreover, as already explained, Plaintiff's threats to report Defendants Howard and Johnson to correctional staff as well as his verbal complaints to Sergeants Banuelos and Kilough are also separate constitutionally protected conduct that may form the basis of a retaliation claim. Plaintiff has thus sufficiently alleged that he engaged in constitutionally protected conduct that precipitated Defendants' retaliatory adverse actions.

Defendants next argue that an “inmate's complaints about matters associated with their prison job assignments are not generally considered protected conduct.” ECF No. 30 at 18 (citing Ruiz v. Jarvis, 2008 U.S. Dist. LEXIS 109564, at *9 (C.D. Cal. Mar. 21, 2008), report and recommendation adopted, 2008 U.S. Dist. LEXIS 40426 (Apr. 18, 2008)). Again, one of the elements of a viable claim of retaliation is that the plaintiff engaged in conduct protected by the First Amendment. Notably, an inmate plaintiff's First Amendment rights are more restricted than the rights of free citizens, in that “an inmate does not retain those First Amendment rights that are ‘inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'” Jones v. N. Carolina Prisoners' Lab. Union, Inc., 433 U.S. 119, 129 (1977) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)). For that reason, certain prison restrictions that inhibit First Amendment interests may nonetheless be found constitutional when balanced against “the legitimate policies and goals of the corrections system[.]” Pell, 417 U.S. at 822. In the Ruiz case relied upon by Defendants, the Central District of California court cited this principle from Jones to find that the plaintiff's complaints about changes to his work duty “involved matters personal to Plaintiff, rather than matters of public concern, and thus do not qualify as protected speech for purposes of a Section 1983 First Amendment retaliation claim.” Ruiz, 2008 U.S. Dist. LEXIS 109654, at *9. See also, e.g., Whitfield v. Snyder, 263 Fed.Appx. 518, 521-22 (7th Cir. 2008) (finding that a prisoner's job-related complaints “involved matters of personal, rather than public, concern and were thus not protected speech”); Jamison v. Capello, Case No. 1:10-cv-01633, 2013 WL 6182035, at *4 (E.D. Cal. Nov. 25, 2013) (finding that an inmate's “oral protestations and requests to speak with Defendants' sergeant do not rise to the level of activity protected by the First Amendment because they were not about prison conditions, related to matters of public concern or designed to effect a change in prison policy. Generalized personal gripes typically do not warrant First Amendment protection”) (internal citations omitted).

As an initial matter, this argument is not persuasive because, once again, Plaintiff filed a written grievance in this case, which is undeniably protected conduct. See Watison, 668 F.3d at 1114 (“The filing of an inmate grievance is protected conduct.”). See also Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005) (finding that the defendant officers did not and could not “seriously contest the fact that [the plaintiff's] complaint precisely satisfies the[] pleading requirements” to state a claim for First Amendment retaliation, where the plaintiff alleged the officers took various adverse actions against the plaintiff “because he exercised his First Amendment rights to file prison grievances and otherwise seek access to the legal process,” that these “actions chilled his First Amendment rights[,]” and that they “were not undertaken to advance legitimate penological purposes[,]” allegations which were “the very archetype of a cognizable First Amendment retaliation claim.”).

Even limiting the Court's analysis to whether Plaintiff's verbal complaints constitute protected conduct, Ruiz is not controlling and stands in tension with other persuasive law from district courts in this Circuit, as discussed supra pp. 16-18. As mentioned above, the Eastern District of California has held that a plaintiff's verbal complaints to a correctional officer about his job assignment did constitute protected conduct for purposes of a First Amendment retaliation claim. Bahadur, 2016 WL 758782, at *4. More importantly, although Defendants are correct that courts generally do not treat speech involving “matters personal to the plaintiff” as protected for purposes of a First Amendment claim, Plaintiff's speech did not solely involve matters personal to him. Rather, according to the FAC, Plaintiff's complaints to Sergeant Banuelos and Sergeant Kilough involved the purported willful refusal of Defendants Howard and Johnson “to fix cells 201 & 202, whos[e] sinks were clogged going on 6 days, with [sewage] coming up out both sink[s].... Preston & Frank refused to fix the inhuma[ne] conditions[.]” ECF No. 29 at 3. In his grievance against Defendant McCourt regarding the RVR, Plaintiff similarly characterized his verbal complaints as “reporting misconduct by Plumber III Howard & Plumber II Frank Johnson when I reported their failures to do work orders which are creating inhuma[ne] conditions[.]” ECF No. 29-1 at 52. Courts have consistently held that oral complaints about prison conditions are entitled to First Amendment protection and can serve as the basis for a retaliation claim. See, e.g., Pearson, 471 F.3d at 740, 741 (noting the “general proposition that a prisoner's grievances about prison conditions are protected,” and ultimately concluding that a prisoner's oral complaints about prison conditions “that affected all of the prisoners housed” in a certain pod were protected speech sufficient to form the basis of a First Amendment retaliation claim); Welch v. Rowley, Case No. 3:22-cv-00547, 2023 WL 6542700, at *3 (D. Nev. May 31, 2023) (“Filing or submitting a grievance, complaint, or lawsuit about prison conditions or alleged constitutional violations is protected conduct. The form that a prisoner's complaint takes-‘even if verbal'-‘is of no constitutional significance'”) (quoting Entler v. Gregoire, 872 F.3d at 1031, 1039 (9th Cir. 2017)). Additionally, in both the FAC and the attached written grievances against all three Defendants, Plaintiff repeatedly characterizes his complaints about the conduct of Defendants as reports of “staff misconduct.” See ECF No. 29 at 4; ECF No. 29-1 at 40, 52. Both written grievances were classified by CDCR as complaints of staff misconduct as well. ECF No. 29-1 at 38, 54. The right to report staff misconduct is also protected by the First Amendment. Shepard v. Quillen, 840 F.3d 686, 688 (9th Cir. 2016).

Defendants also argue that, to the extent Plaintiff was complaining on behalf of other inmates whose cells were affected by the clogged sinks, such complaints are not protected conduct. ECF No. 30 at 18. In support of this argument, Defendants quote (but neglect to cite) Rivera v. McGaffey, Case No. C11-5942, 2013 WL 5314426, at *13 (W.D. Wash. Sept. 23, 2013). There, the court was faced with allegations that an inmate plaintiff presented complaints on behalf of other inmates at a meeting where he served as a representative for certain inmates in his unit. Id. The Rivera court noted that, while it is undisputed that the inmate plaintiff had a protected First Amendment right to file grievances against prison officials, “it is less clear that he has a First Amendment right to present staff complaints on behalf of others. There is no constitutionally protected right to assist others with their prison grievances. The United States Supreme Court has limited any right for inmates to provide each other legal assistance to when it is necessary as a ‘means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.'” Id. (quoting Lewis v. Casey, 518 U.S. 343, 350-51 (1996)) (other quotations and citations omitted). Nonetheless, the Rivera court made no definitive holding that the plaintiff had failed to allege he engaged in protected conduct. Instead, the court found that, even “[a]ssuming that Mr. Rivera was engaged in protected activity (for all complaints whether made on his own behalf or on behalf of others), he has, nevertheless, not met his burden of showing that his protected activities were the substantial or motivating factor behind the defendant's conduct.” Rivera, 2013 WL 5314426, at *14 (internal quotations and citation omitted). Therefore, Rivera does not support the conclusion that complaints made on behalf of other inmates cannot be protected conduct under the First Amendment. The Ninth Circuit has also affirmed that job-related complaints that concern the rights of other inmates can constitute protected speech for purposes of a First Amendment retaliation claim. Gomez v. Vernon, 255 F.3d 1118, 1123-28 (9th Cir. 2001), cert. denied, 534 U.S. 1066 (2001) (affirming the lower court's declaratory judgment that a class of inmate plaintiffs were subjected to instances of unlawful retaliation, in a case involving inmates employed as law clerks in prison law libraries who confronted prison officials with complaints about how the administration of the libraries affected other inmates' right to access the courts, and who were removed from or forced out of their law library positions as a result).

Finally, to characterize Plaintiff's verbal complaints to the sergeants as an effort by Plaintiff to provide legal assistance to other inmates with their grievances would be an unfavorable construction of the facts as alleged. The most favorable construction of the facts as alleged is that Plaintiff's oral complaint to Sergeant Kilough was a report of staff misconduct for refusing to address inhumane prison conditions. Therefore, taking as true the facts in both the FAC and the attached written grievances and viewing them in the light most favorable to Plaintiff, the Court should reject the argument that Plaintiff has not adequately alleged that he was engaged in protected activity.

ii. Whether Plaintiff sufficiently alleged that Defendants took adverse actions against him

In the FAC, Plaintiff alleges that Defendants took the following adverse actions against him in retaliation for his protected conduct of making verbal complaints and filing written grievances against them:

(1) Defendants Howard and Johnson refused to allow Plaintiff to report to work as a plumber the day after he made verbal complaints to Sergeant Kilough regarding their purported refusal to fix sinks clogged with sewage;

(2) Defendants Howard and Johnson falsely reported that Plaintiff refused to work to Defendant McCourt, who prepared an RVR based on the false information that resulted in Plaintiff being terminated from his job as a plumber;

(3) Defendants Howard and Johnson incited violence against Plaintiff by other inmates by telling them that they would fix plumbing problems on C-Yard if not for Plaintiff's written grievance against them;

(4) Defendant McCourt conspired with Defendants Howard and Johnson to create the falsified RVR to have Plaintiff terminated from his job as a plumber;

(5) Defendant McCourt incited violence against Plaintiff by telling another inmate, Knight, that he would not get paid and could not work because of Plaintiff's written grievances against Defendants; and

(6) Defendant McCourt claimed false safety concerns to have Plaintiff sent to another prison.

In the Motion to Dismiss, Defendants first argue that Plaintiff has failed to sufficiently allege that either Defendant Howard or Defendant Johnson took any adverse action against Plaintiff because of his comments that he was going to report Defendants to a correctional sergeant. ECF No. 30 at 21. With respect to their refusal to allow him to work on December 21, 2021, before Plaintiff filed a written grievance, Defendants argue that Plaintiff's allegations are insufficient because they “do not provide any information regarding what authority either Defendant Howard or Defendant Johnson had to prevent Plaintiff from working, what work Plaintiff was permitted to complete, and what work assignment Plaintiff had, etc. The allegations do not suggest that Plaintiff was prevented from working entirely, just that he was prevented from working with these Defendants.” Id. Additionally, Defendants argue that refusing to allow an inmate to work is not an adverse action for purposes of a retaliation claim, because there is no constitutional right to hold a job in prison. Id. at 22. Defendants aver “there are no allegations that Defendants removed Plaintiff from his job position or even had the authority to do so” and that “[m]erely ignoring Plaintiff on some occasions so that Plaintiff could not work with those particular plumbers could not be considered an adverse action under the First Amendment.” Id. (emphasis in original).

With respect to the adverse actions Plaintiff alleges Defendants Howard and Johnson took against him after he filed a written grievance against them on December 21, 2021, Defendants argue in passing in a footnote that any retaliation claim based on actions taken after the written grievance “would be barred by Plaintiff's failure to exhaust because he did not file a grievance related to those actions, as evidenced by the exhibits attached to his FAC.” ECF No. 30 at 24 n.14. Defendants also argue that Plaintiff's allegations regarding their retaliation that “continued and got worse” after he filed a written grievance are too vague to state a claim. Id. at 24.

The Court should reject both of these arguments. First, the argument that Plaintiff failed to exhaust any retaliation claim based on adverse actions taken after he filed his written grievance against Defendants Howard and Johnson is inappropriately raised at this stage of the case. Failure to exhaust under the Prison Litigation Reform Act (“PLRA”) is “an affirmative defense the defendant must plead and prove.” Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). Thus, it is only in the “rare event that a failure to exhaust is clear on the face of the complaint” that a defendant may move for dismissal under Rule 12(b)(6) on that basis. Albino, 747 F.3d at 1166. “Otherwise, defendants must produce evidence proving failure to exhaust in order to carry their burden.” Id. In other words, “the appropriate procedural device for pretrial determination of whether administrative remedies have been exhausted under the PLRA . . . is a motion for summary judgment under Rule 56.” Id. at 1168. Here, it is not clear on the face of the complaint that Plaintiff failed to exhaust administrative remedies related to his retaliation claims against Defendants. Indeed, there is evidence in the attachments to the FAC that his February 22, 2022 written grievance included his allegations that Defendants Howard and Johnson falsely reported the information in the RVR authored by Defendant McCourt in retaliation for both Plaintiff's verbal complaints as well as his written grievance. ECF No. 29-1 at 52. Another attachment to the FAC is an appeal form of Plaintiff's initial grievance against Howard and Johnson, in which he alleges that they incited violence against Plaintiff by other inmates in retaliation for the written grievance. Id. at 42. Therefore, since the Court cannot determine from the face of the complaint whether Plaintiff failed to exhaust administrative remedies with respect to his allegations of retaliatory adverse actions taken by Defendants after he filed his written grievances, the Court should reject the exhaustion argument at this stage.

Second, for the reasons already explained above in the Court's discussion of Defendants' argument that Plaintiff's FAC does not meet the Rule 8 pleading standard, Plaintiff's allegations about adverse actions taken by Defendants Howard and Johnson after he filed a written grievance are not too vague to state a claim when taken as true and viewed in the light most favorable to Plaintiff, particularly when the Court considers the attachments to the FAC in addition to the allegations in the FAC itself. Plaintiff's allegations are clear that Howard and Johnson told other inmates that they would complete plumbing work on their yard if not for Plaintiff's written grievance, and that they did so to incite violence against Plaintiff by the other inmates on his yard, which is an adverse action for purposes of a First Amendment retaliation claim. Arceo, 2019 WL 358704, at *10.

Plaintiff has also sufficiently alleged that Howard and Johnson had the authority to-and did-prevent him from working, and that their reports regarding the events of December 21, 2021 as outlined in the RVR ultimately resulted in Plaintiff being terminated from his employment as a plumber. Indeed, the entire basis of the RVR is that Plaintiff's specific act constituting a rules violation was “Disrespect w/out Potential for Violence/Disruption,” because he purportedly did not comply with Howard's instructions about which work orders to complete, and he refused to return to his housing unit when Howard asked him to do so because “he would not require him to work for the rest of the day.” ECF No. 29-1 at 61. The witness statements attached to the FAC show that Plaintiff repeatedly refers to Howard as his “boss” and Howard and Johnson as his “bosses,” and these statements reflect real-time documentation of Plaintiff attempting to report to work on multiple occasions between December 21, 2021 and January 7, 2022 and not being permitted to do so by Howard and Johnson. ECF No. 29-1 at 3, 4, 5, 6, 7, 11, 13, 14, 15, 16, 17. Plaintiff also states in his first written grievance against them that Howard and Johnson were his “bosses” and that they did not allow him to work anymore after he reported them. Id. at 39-40. Finally, the FAC states that Plaintiff was “fired from his position” as a result of the RVR, and the February 22, 2022 written grievance is clear that Plaintiff was facing the loss of his job assignment as a result of the RVR, which is consistent with Defendant McCourt's request in the RVR that Plaintiff be “reassigned from Plant Operations duties as soon as possible.” ECF No. 29 at 4; ECF No. 29-1 at 5152, 61. These allegations suffice under the pleading standard at the motion-to-dismiss stage to show that Howard and Johnson had the authority as Plaintiff's “bosses” to prevent him from working, and that they reported false information to have him fired from his position altogether.

Third, although prisoners have no constitutional right to hold a job in prison, an adverse action as an element of a retaliation claim need not be an independent constitutional violation. Watison, 668 F.3d at 1114. See also Thomas v. Carpenter, 881 F.2d 828, 829-30 (9th Cir. 1989) (explaining that, to state a First Amendment retaliation claim, a plaintiff need only allege that the defendant acted with the intention of retaliating against the exercise of constitutionally protected conduct; the plaintiff need not allege that the adverse action deprived him of a separate constitutionally protected interest). The Court agrees that Plaintiff fails to state an independent due process claim under the Fourteenth Amendment. Walker v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004) (the Due Process Clause “does not create a property or liberty interest in prison employment”); accord Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997). However, the Ninth Circuit has reaffirmed “that prisoners may still base retaliation claims on harms that would not raise due process concerns.” Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997). Thus, Plaintiff's allegation that he was not allowed to work and ultimately terminated from his plumber job in retaliation for making oral complaints about and filing a written grievance against Howard and Johnson suffices to meet the “adverse action” element needed to state a First Amendment retaliation claim. Vignolo, 120 F.3d at 1077-78 (reversing the lower court for dismissing a prisoner's First Amendment retaliation claim “on the bare ground that there is no constitutional right to prison employment[,]” because “even though a person has no ‘right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests - especially, his interest in freedom of speech.”) (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). See also, e.g., McAllister v. Gunja, Case No. 1:06-cv-00082, 2009 WL 80985, at *4 (E.D. Cal. Jan. 13, 2009) (finding a plaintiff stated a cognizable First Amendment retaliation claim where he alleged that he was fired from his job as an electrician and transferred to another prison in retaliation for protected conduct); Slice v. Schweitzer, Case No. 07-cv-04, 2008 WL 5435338, at *4 (D. Mont. June 5, 2008) (finding a prisoner's various allegations of adverse actions including, inter alia, being denied prison employment and being fired from her employment position in retaliation for filing complaints against the prison were sufficient to state a First Amendment retaliation claim).

Defendants next argue that Plaintiff fails to allege that Defendant McCourt took any adverse action against him, because the issuance of the RVR is not an “adverse action” for purposes of a retaliation claim. ECF No. 30 at 26-27. Defendants also state that Plaintiff “has not alleged that he suffered any adverse effects as a result of the 128 chrono.” Id. at 27. However, as already discussed, Plaintiff alleges that Defendant McCourt filed the 128 chrono “to have the Plaintiff fired from his position.” ECF No. 29 at 4. The RVR is also clear that Defendant McCourt is requesting that Plaintiff be reassigned from his plumber job as soon as possible. ECF No. 29-1 at 61. In his written grievance against Defendant McCourt, Plaintiff complains that his “job assignment is being threatened by the author of this RVR[.]” Id. at 52. Therefore, viewing the facts in the light most favorable to Plaintiff, it is reasonable to infer that Plaintiff was terminated from his job as a plumber as a result of the RVR, which makes the facts in this case clearly distinguishable from the cases Defendants rely on, which deal with 128 chronos issued merely for counseling purposes, or that are merely informational. To the extent Defendants are asking the Court to construe Plaintiff's allegations as failing to state that Plaintiff was indeed fired from his position, such construction would violate the Court's obligation to view the facts in the light most favorable to Plaintiff. As discussed above, an allegation that Plaintiff was terminated from his prison employment or not permitted to work is sufficient to state the “adverse action” element of a retaliation claim, even though there is no constitutional right to employment in prison. Therefore, Plaintiff has sufficiently stated that Defendant McCourt's issuance of an RVR recommending he be removed from his employment position was an adverse action.

The other adverse actions Plaintiff identifies in the FAC and attributes to Defendant McCourt-inciting violence against Plaintiff by inmate Knight and claiming false safety concerns to have Plaintiff transferred to another prison-are also adverse actions sufficient to support a retaliation claim. See Arceo, 2019 WL 358704, at *10; (finding that incitement of violence against a prisoner by other inmates is an adverse action for purposes of a retaliation claim); Rhodes v. Robinson, Case No. 1:02-cv-05018, 2011 WL 6367746, at *12 (E.D. Cal. Dec. 19, 2011) (finding a retaliatory prison transfer constitutes an adverse action for purposes of a retaliation claim).

Therefore, Plaintiff has sufficiently alleged that Defendants Howard and Johnson took adverse actions against him by (1) refusing to allow him to work in his plumbing job, (2) falsely reporting that Plaintiff refused to work in order to have him fired, and (3) telling other inmates that, because of Plaintiff's written grievance against them, they would not complete any plumbing work on their yard in order to incite violence against Plaintiff. Plaintiff has also sufficiently alleged that Defendant McCourt took adverse actions against him by (1) issuing the January 4, 2022 RVR with a false version of events in order to have Plaintiff terminated from his job; (2) inciting violence against Plaintiff by telling inmate Knight that he could not work and would not get paid because of Plaintiff's written grievance against McCourt, Howard, and Johnson; and (3) fabricating safety concerns to have Plaintiff transferred to another prison.

iii. Whether Plaintiff sufficiently alleged a causal nexus between the protected activity and the adverse actions

Plaintiff has also sufficiently alleged a causal nexus between his protected activity and the adverse actions purportedly taken by Defendants Howard and Johnson. “Retaliation is not established simply by showing adverse activity by a defendant after protected speech; rather, Plaintiff must allege sufficient facts to plausibly suggest a nexus between the two.” Rojo v. Paramo, Case No. 13-cv-2237, 2014 WL 2586904, at *5 (S.D. Cal. June 10, 2014). “[M]ere speculation that defendants acted out of retaliation is not sufficient.” Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). However, “[b]ecause direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of events from which retaliation can be inferred is sufficient to survive dismissal.” Watison, 668 F.3d at 1114.

Here, the facts pled by Plaintiff in the FAC and contained in the attachments show a causal nexus between the adverse actions of Defendants Howard and Johnson and the protected conduct of Plaintiff's verbal report and written grievances against them. Plaintiff specifically alleges in his first written grievance attached to the FAC that Defendants Howard and Johnson explicitly told him on December 21, 2021 that he could no longer work because of his report to Sergeant Kilough that morning. See ECF No. 291 at 40 (“Then they said that they would not let me work anymore because I told on them to the Sgt.”). Plaintiff also alleges in his second written grievance that Defendants Howard and Johnson created a false version of the events that took place on December 21, 2021, as outlined in the RVR, and that they did so “as a retribution for my reporting misconduct by Plumber III Howard & Plumber II Frank Johnson when I reported their failures to do work orders which are creating inhuma[ne] conditions to the Sgt. That day.” Id. at 52. In the same written grievance, Plaintiff asserts that Howard and Johnson did not write the RVR because, had they done so, “they would have been subjected to liability for retribution for inmate reporting staff misconduct under 15 C.C.R. § 3084.1(d)[,]” which is a regulation that forbids reprisal against an inmate for appealing a written grievance. Id. With respect to the third adverse action alleged, Plaintiff states in a grievance appeal form attached to the FAC that Howard and Johnson “inform[ed] inmates on C-Yard” that they would come to the yard more often to fix inmates' plumbing problems, “but because of my 602 I filed on them for retaliation, they wanted nothing to do with C-yard.” Id. at 42. Therefore, both from the chronology of events and the statements of retaliatory motive attributed to Defendants Howard and Johnson in the FAC, Plaintiff has sufficiently alleged a causal nexus between his verbal and written complaints about Howard and Johnson and their alleged adverse actions of not allowing him to work, falsely reporting that he refused to work and having him fired from his job by way of those false reports, and inciting violence against him by other inmates. See Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009) (evidence of retaliation includes: “(1) evidence of proximity in time between the protected speech and the alleged retaliatory decision; (2) evidence that the defendant expressed opposition to the speech; or (3) evidence that the defendant's proffered reason for the adverse action was pretextual”) (quoting Pinard v. Clatskanie Sch. Dist., 467 F.3d 755, 771 (9th Cir. 2006)).

The same cannot be said for Plaintiff's allegations against Defendant McCourt. The factual allegations in the FAC fail to establish a retaliatory motive on the part of Defendant McCourt in authoring the RVR or a causal nexus between Plaintiff's oral complaints about Defendants Howard and Johnson and Defendant McCourt's issuance of the RVR. Plaintiff has not alleged any facts to show that Defendant McCourt was aware of either Plaintiff's oral complaints to Sergeant Banuelos or Sergeant Kilough about Defendants Howard and Johnson or of his December 21, 2021 written grievance about Defendants Howard and Johnson, beyond mere speculative and conclusory allegations that Howard and Johnson “conspired with” Defendant McCourt to have him author purportedly false RVR. “[W]hile the timing and nature of an allegedly adverse action can properly be considered as circumstantial evidence of retaliatory intent, the official alleged to have retaliated must also be alleged to have been aware of the plaintiff's protected conduct.” Rojo, 2014 WL 2586904, at *5 (internal quotations and citations omitted). See also Wood, 753 F.3d at 904-05 (rejecting a prisoner plaintiff's argument that statements by prison officials expressing their dislike of the plaintiff could serve to establish a link between his protected conduct of filing a prior lawsuit and the defendants' later adverse actions for purposes of a retaliation claim, because “[t]he statements [] contain no indication that they were made in reference to the prior lawsuit, as opposed to Wood's contemporaneous conduct at [the prison].... There is nothing in the record to indicate [the defendant] even knew about the earlier suit.”). Here, because Plaintiff does not allege any facts to show that Defendant McCourt was aware of Plaintiff's protected conduct, he fails to establish a causal nexus between the protected conduct and McCourt's adverse action of authoring the allegedly false RVR as necessary to support a claim for retaliation.

Further, to state a claim for retaliation, Plaintiff must allege facts that, if true, would establish “that the protected conduct was a ‘substantial' or ‘motivating' factor” for the alleged retaliatory adverse actions. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Although Plaintiff has alleged facts sufficient to show a retaliatory motive on the part of Defendants Howard and Johnson in providing false information to Defendant McCourt, who authored the RVR, Plaintiff has not alleged any facts to establish that Defendant McCourt knew the information provided by Howard and Johnson was false or unreliable, or that he otherwise had any motive to retaliate against Plaintiff for his reports about Howard or Johnson. In a case involving similar allegations that a defendant placed an inmate plaintiff in administrative segregation “based on information that later proved unreliable[,]” the Eastern District of California deemed such allegations insufficient to establish a retaliatory motive, explaining that the defendant's “failure to give credence to plaintiff's denials of guilt . . . merely demonstrate[es] that [the defendant] conducted an inefficient investigation,” rather than establishing that the defendant had an underlying retaliatory motive. Bravot v. CDCR, Case No. 05-cv-0113, 2006 WL 47398, at *2 (E.D. Cal. Jan. 9, 2006), report and recommendation adopted, 2006 WL 680467 (E.D. Cal. Mar. 15, 2006). With respect to the plaintiff's claims against another defendant whom the plaintiff accused of “retaliate[ing] against plaintiff based on fabricated information[,]” the Bravot court again found that the plaintiff “does not show retaliatory actions on the part of this defendant by simply stating that he investigated claims of plaintiff's drug use, false though they may have been in the end .... Plaintiff is not showing any motive for retaliation. It is not retaliation for the defendant simply to respond to allegations and follow through, thoroughly or not, with an investigation.” Id. at *3. Similarly, here, although Plaintiff alleges that Defendant McCourt “falsified documents” by authoring the RVR “to have the Plaintiff fired from his position[,]” and that McCourt “conspired with [Howard and Johnson] to retaliate via prox[y]” through the alleged “falsified report[,]” Plaintiff provides no facts in the FAC to support such an inference, even when viewing the facts in the light most favorable to Plaintiff. As in Bravot, at best, Plaintiff has established that Defendant McCourt did not provide Plaintiff with an opportunity to be heard or otherwise conduct a sufficient investigation into the version of events reported to him by Howard and Johnson.²That is not enough to show a retaliatory motive behind Defendant McCourt's adverse action of authoring the false RVR. Therefore, Plaintiff's claim of retaliation against Defendant McCourt based on the issuance of the RVR should be dismissed.³

2 In the written grievance against Defendant McCourt, Plaintiff repeatedly invokes his right to procedural due process to challenge the purportedly false RVR. ECF No. 29-1 at 51-52. To the extent Plaintiff attempts to state a due process claim against Defendant McCourt under the Fourteenth Amendment on the basis of the false RVR, the Court notes that the issuance of a false RVR sufficient, on its own, cannot form the basis of a § 1983 claim for a procedural due process violation. See, e.g., Solomon v. Meyer, Case No. 11-cv-02827, 2014 WL 294576, at *2 (N.D. Cal. Jan. 27, 2014) (“[T]here is no constitutionally protected right to be free from false disciplinary charges.”); Dawson v. Beard, Case No. 15-cv-01867, 2016 WL 1137029, at *5-6 (E.D. Cal. Mar. 23, 2016) (“The issuance of a false RVR, alone, does not state a claim under section 1983.”). Additionally, any § 1983 claim based on the loss of his credit earning status as a result of Plaintiff being terminated from prison employment would be barred by Heck v. Humphrey, 512 U.S. 477 (1994). See Edwards v. Balisok, 520 U.S. 641, 645-48 (1997) (explaining that a prisoner's § 1983 claim for deprivation of his good-time credits without due process was Heck-barred and thus not cognizable because, if established, the procedural defect complained of by the plaintiff would “necessary imply the invalidity of the deprivation of his good-time credits”).

3 Defendants argue in the Motion to Dismiss that Plaintiff has failed to state a conspiracy claim against Defendants. ECF No. 30 at 30-31. Although no conspiracy claim was identified in the initial screening order, the Court reaffirms for the sake of clarity that Plaintiff has not stated a claim for conspiracy against Defendants under § 1983.

The Court is also not obligated to accept all factual allegations in the FAC as true to the extent they are contradicted by information contained in the exhibits, or to the extent they would require the Court to make unreasonable inferences. Sprewell, 266 F.3d at 988. Although the allegations that Defendant McCourt incited violence against Plaintiff by inmate Knight and fabricated safety concerns to have Plaintiff transferred to another prison in retaliation for Plaintiff filing a written grievance against McCourt could undoubtedly form the basis of a cognizable First Amendment retaliation claim, these allegations are conclusory at best and are in some instances contradicted by the exhibits attached to the FAC. In the FAC, Plaintiff alleges that Defendant McCourt informed inmate Knight that Knight “would not get paid and could not work because of the Plaintiff['s] grievance and his cell mate Kyle Avery['s] grievance against Dan McCourt and the plumbers. This le[d] to us being ki[c]ked off the yard by inmate Knight and sent to ASU. The defendant claimed fa[]lse saf[e]ty [concerns], to have the Plaintiff and his cell mate who was also grievancing the defendants sent to another prison and not able to come back.” ECF No. 29 at 4. However, the exhibits attached to the FAC show that Plaintiff was placed in the Administrative Segregation Unit (“ASU”) on March 3, 2022 because RJD mailroom staff discovered a note in the mailroom alleging that Plaintiff was conspiring to stab RJD staff member McKormick, who is identified as the McCort Plant Supervisor. ECF No. 29-1 at 33. The ASU Placement Notice is signed by Lieutenant G. Ortiz. Id. Another exhibit, a Classification Committee Chrono dated April 7, 2022, shows that Plaintiff appeared before the Institution Classification Committee on that date for an ASU Subsequent and SHU assessment in connection with the pending investigation into the note found in the mailroom. Id. At 35. That chrono contains a summary of Plaintiff's disciplinary history, which shows that the most recent disciplinary RVR involving Plaintiff prior to the March 2022 incident was for battery on a prisoner in 2017. Id. There is no mention of inmate knight or Defendant McCourt in either exhibit, and the disciplinary history recited in the Classification Committee Chrono undermines any reasonable inference that Plaintiff might have been involved in a separate altercation with Knight that led to him being placed in ASU on some other occasion after he filed the written grievance against McCourt on February 22, 2022. Therefore, Plaintiff's allegation that he was sent to ASU as a result of an altercation with inmate Knight that was instigated by Defendant McCourt in retaliation for Plaintiff's protected conduct is contradicted by the exhibits attached to the FAC, which show that Plaintiff's placement in ASU had nothing to do with an altercation with Knight or any other inmate. These exhibits also contradict the allegation that McCourt was connected to the “false safety concerns” that purportedly led to Plaintiff's transfer to another prison. Plaintiff does not allege that Defendant McCourt authored the note in the mailroom or otherwise had any involvement in the disciplinary actions that followed, beyond the mere conclusory allegation that “[t]he defendant claimed fa[]lse saf[e]ty [concerns]” to have Plaintiff transferred to another prison. To the extent Plaintiff intended to attribute the fabrication of false safety concerts to Defendants Howard and Johnson as well as McCourt, any retaliation claim based on such allegation should fail for the same reason.

Therefore, the Court should dismiss the retaliation claim against Defendant McCourt in its entirety.

iv. Whether Plaintiff sufficiently alleged that the adverse actions were not done for a legitimate penological purpose

Finally, Defendants contend that Plaintiff's retaliation claims against Howard and Johnson fail because he does not allege that the issuance of the RVR based on their version of the events that occurred on December 21, 2021 was not for a legitimate penological purpose. ECF No. 30 at 22-24. Defendants argue that “[a] perception by Defendants Howard and Johnson of Plaintiff's inability to do his job could very well lead to Defendants no longer working with Plaintiff as part of their job, which would be a legitimate penological purpose.” Id. at 23. Again, Defendants argue that Plaintiff “does not specifically ever claim that the content of the 128 chrono and the allegations therein are actually false.” Id. As already explained above, Defendants mischaracterize the FAC in making this argument. Plaintiff asserts multiple times in his second written grievance attached to the FAC that the allegations in the RVR are false, calling the RVR a “falsified report,” a “fraudulent document,” and stating that it is “based on false documentation of facts.” ECF No. 29-1 at 52. He also states that the camera footage of the events that day would “contradict[] the writer's side of events as he wrote them” and that the RVR is “undermin[]ed as to the facts as they really occurred” as documented in the witness statements Plaintiff gathered. Id. Moreover, Plaintiff's description of the events that took place on December 21, 2021 in the FAC differs markedly from the description of the same events in the RVR, which compels the inference that Plaintiff is alleging the content of the RVR is false. Lastly, as already discussed, Plaintiff asserts in his first written grievance that Howard and Johnson expressly told him that they would not allow him to work because he reported them to the sergeant. ECF No. 29-1 at 40. If it is true that Howard and Johnson reported a false version of events to McCourt in order to have Plaintiff removed from his position as a plumber, and that they told Plaintiff they would not allow him to work because of his verbal reports about their misconduct, their actions in not allowing him to work and in reporting a false version of events to McCourt would not be for a legitimate penological purpose. Therefore, viewing the facts in the light most favorable to Plaintiff and taking the facts alleged in the FAC and exhibits as true-as the Court must-the Court should find that Plaintiff has sufficiently alleged that the adverse actions of Defendants Howard and Johnson were not taken for a legitimate penological purpose.

Accordingly, Plaintiff has sufficiently stated a First Amendment retaliation claim against Defendants Howard and Johnson on the basis of their alleged adverse actions of refusing to allow him to work, reporting a false version of events to Defendant McCourt that formed the basis of the RVR leading to his termination from his prison job, and inciting violence against him by other inmates by telling them that they would complete plumbing work on their yard if not for Plaintiff's written grievance against them.

D. Eleventh Amendment Immunity

In the FAC, Plaintiff purports to bring his claims against all three Defendants in both their individual and official capacities. ECF No. 29 at 2. Defendants argue that the official-capacity claims should be dismissed pursuant to the Eleventh Amendment and Ex parte Young, 209 U.S. 123, 157 (1908). The Court agrees.

A suit against a state official in his official capacity “is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 1590, 166 (1985). Therefore, Plaintiff's official-capacity claims against Defendants should be treated as a suit against the California Department of Corrections and Rehabilitation (“CDCR”). State officials sued in their official capacities are not “persons” subject to civil rights claims for money damages under § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 63-66 (1989). See also Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988) (“[T]he eleventh amendment bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant's federally protected rights, where the nature of the relief sought is retroactive, i.e., money damages, rather than prospective, e.g., an injunction.”).

Although the Eleventh Amendment immunity bar on § 1983 actions for money damages is subject to certain narrow exceptions, including where the State has “unequivocally expressed” its consent to waive sovereign immunity or where Congress has abrogated the State's sovereign immunity, neither exception applies here. See Searching Bear Moloka'I Martin, v. Johnson, Case No. 2:20-cv-11342, 2022 WL 2199935, at *4 (C.D. Cal. May 19, 2022) (explaining that California has not consented to suit in federal court, and Congress has not abrogated or waived State sovereign immunity against suits under § 1983). The California Department of Corrections is thus entitled to Eleventh Amendment immunity from § 1983 suits for money damages. Id.; see also Brown v. CDCR, 554 F.3d 747, 752 (9th Cir. 2009); Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999).

However, under the Ex parte Young doctrine, the Eleventh Amendment does not bar certain official-capacity suits against state officials that seek purely prospective relief. See 209 U.S. at 159-60. See also Will, 491 U.S. at 71 n.10 (“Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.'”) (quoting Graham, 473 U.S. at 167 n.14). The underlying rationale of the Ex Parte Young doctrine is that “if a state official violates federal law, he is stripped of his official or representative character and may be personally liable for his conduct; the State cannot cloak the officer in its sovereign immunity.” Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 288 (1997) (plurality) (O'Connor, J., concurring in part). Consequently, a claim seeking prospective relief to end a state official's ongoing violation of federal law can ordinarily proceed in federal court, notwithstanding the Eleventh Amendment. Id. “In determining whether the Ex parte Young doctrine avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry' into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Maryland, Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 645 (2002) (quoting Coeur d'Alene, 521 U.S. at 296).

To properly bring an official-capacity claim against a state official to enjoin the enforcement of an act alleged to be unconstitutional, “it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.” Ex parte Young, 209 U.S. at 157. See also Hartmann v. CDCR, 707 F.3d 1114, 1127 (9th Cir. 2013) (“A plaintiff seeking injunctive relief against the State is not required to allege a named official's personal involvement in the acts or omissions constituting the alleged constitutional violation. Rather, a plaintiff need only identify the law or policy challenged as a constitutional violation and name the official within the entity who can appropriately respond to injunctive relief.”) (internal citations omitted).

Here, Plaintiff seeks the following injunctive relief in the FAC: (1) preventing Defendants from falsely claiming safety concerns so that Plaintiff may return to RJD, (2) removal of the 128 chrono from his records, and (3) an apology from all Defendants. ECF No. 29 at 7. However, Plaintiff does not allege that Defendants have the authority to expunge the 128 chrono from his records or to effectuate his transfer back to RJD. Therefore, they are not appropriately named in their official capacities to provide the injunctive relief sought. See, e.g., Aubert v. Madruga, Case No. 1:13-cv-01659, 2016 WL 2866419, at *8 (E.D. Cal. May 17, 2016), report and recommendation adopted, 2016 WL 4494478 (E.D. Cal. Aug. 25, 2016) (denying a prisoner plaintiff's request for the injunctive relief of removal of an RVR from his prison record because the defendants who were sued “lack the authority to expunge or otherwise remove the RVR from his Central File” and, even though defendants were sued in their official capacities, “the pendency of the present action does not automatically give the Court jurisdiction over all prison officials in general or over the expungement of rule violations from prisoner files at a given institution”); Ingram v. Rachal, Case No. 19-cv-5605, 2019 WL 3781603, at *3 (C.D. Cal. Aug. 12, 2019) (dismissing a plaintiff's request for injunctive relief in the form of removing RVRs and a counseling chrono from his file because the plaintiff “does not allege Defendants have authority to expunge Plaintiff's RVR's and Counseling Chrono from his Central File” and the court “lacks jurisdiction to compel non-party prison officials” to expunge them); West v. Livesay, Case No. 2:19-cv-07190, 2022 WL 17185986, at *3-4 (C.D. Cal. July 14, 2022) (recommending dismissal of all officialcapacity claims against a defendant where the plaintiff sought an injunction to remove a 128 chrono from his file, because the plaintiff failed to establish such relief was prospective in nature as he had not shown he would likely suffer ongoing or future federal constitutional harm as a result of the 128 chrono, and because he had not sufficiently pled that the defendant had the authority to expunge the chrono).

Additionally, the relief sought by Plaintiff in his prayer for injunctive relief is not properly characterized as prospective. That is, Plaintiff has not plausibly alleged that the relief sought would remedy an ongoing constitutional violation. See West, 2022 WL 17185986, at *3 (expungement of records as prospective relief “is appropriate only when the plaintiff would likely suffer ongoing or future federal constitutional harm”); Atkins v. Haws, Case No. 09-cv-6640, 2009 WL 3770873, at *4 (C.D. Cal. Nov. 10, 2009) (finding that the injunctive relief sought by the plaintiff, including a written apology from the defendants and the removal of an RVR from the plaintiff's file, did not constitute a proper prospective remedy for defendants' alleged constitutional violations). The alleged retaliation by Defendants occurred in the past, and as explained, Plaintiff has not pled facts to support an inference that Defendants' retaliatory acts had any connection to his transfer from RJD. Nor has he shown a likely threat of future or ongoing constitutional harm as a result of the retaliatory conduct alleged.

Therefore, the Court should dismiss Plaintiff's official-capacity claims against all Defendants.

E. Qualified Immunity

Defendants' final argument in favor of dismissal is that they are entitled to qualified immunity on Plaintiff's claims. Qualified immunity shields a public official from a suit for damages if, under the plaintiff's version of the facts, a reasonable official in the defendant's position could have believed that his conduct was lawful in the light of clearly established law and the information the official possessed at the time the conduct occurred. See Pearson v. Callahan, 555 U.S. 223, 231 (2009); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When determining whether a public official is entitled to qualified immunity, the inquiry is twofold. Courts have discretion to decide which step to address first. Pearson, 555 U.S. at 236. First, the Court must determine whether the plaintiff has alleged the deprivation of an actual constitutional right. Id. Second, the Court must determine whether the right was clearly established. Id.

“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.'” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). The determination of whether the law was clearly established “must be undertaken in light of the specific context of the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds, Pearson, 555 U.S. at 236. “In the Ninth Circuit, we begin our inquiry by looking to binding precedent. If the right is clearly established by decisional authority of the Supreme Court or this Circuit, our inquiry should come to an end.” Boyd v. Benton Cty., 374 F.3d 773, 781 (9th Cir. 2004) (citation omitted). Moreover, at the motion-to-dismiss stage, [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 Plaintiff is entitled to go forward with his claims. Keates v. Koile, 883 F.3d 1228, 1235 (9th Cir. 2018).

Here, Defendants point to several cases indicating that there is no clearly established Supreme Court or Ninth Circuit authority finding that a prisoner's verbal complaints concerning matters not related to inmate grievances or litigation constitute protected conduct. ECF No. 30 at 33-34 (citing Bobadilla v. Knight, Case No. 2:18-cv-1778, 2020 WL 4059183, at *7-8 (E.D. Cal. July 20, 2020), report and recommendation adopted, 2020 WL 5412899 (E.D. Cal. Sept. 9, 2020) (granting qualified immunity because the plaintiff's “allegations, taken as true, do not involving the filing of administrative grievances or lawsuits, but rather are solely based on plaintiff's verbal complaints directed to correctional officers' use of force against someone else, not in the context of threatening to file a grievance or lawsuit, or complaining about an officer's alleged improper action toward plaintiff”); Bahadur, 2016 WL 758782, at *5-6 (finding the defendant was entitled to qualified immunity on a plaintiff's retaliation claim that was based solely on the plaintiff's verbal protest of his job assignment, despite earlier finding the verbal protest was protected conduct, “[b]ecause it was not well-established in 2011 that a verbal protest constituted conduct protected by the First Amendment”); and Torres v. Arellano, Case No. 1:15-cv-00575, 2017 WL 1355823, at *13 n.1 (E.D. Cal. Mar. 24, 2017) (finding the defendants were entitled to qualified immunity on the plaintiff's retaliation claim because “[n]either the Ninth Circuit nor the Supreme Court has decided whether a prisoner's verbal complaints constitute protected conduct[,]” but noting “it seems inapposite to assume that a prisoner's right to file a written complaint is protected, but his right to make the same complaint verbally is not.... Nonetheless, until a higher court settles the issue, the Court is bound to find in Defendants' favor.”) (emphasis in original).

As an initial matter, Defendants' qualified immunity arguments do not touch on the adverse actions Plaintiff alleges Defendants Howard and Johnson took after he filed his written grievances. It is clearly established that retaliation against a prisoner for filing an inmate grievance is unconstitutional. Watison, 668 F.3d at 1114. Therefore, Defendants Howard and Johnson are not entitled to qualified immunity with respect to their alleged retaliatory conduct of (1) refusing to allow Plaintiff to work on any dates after Plaintiff's first written grievance was received by RJD on December 23, 2021; (2) falsely reporting that Plaintiff refused to work and behaved disrespectfully to have Plaintiff removed from his plumbing position, as outlined in the January 4, 2022 RVR; and (3) telling other inmates on Plaintiff's yard that they would fix plumbing problems on their yard if not for Plaintiff's written grievances, in order to incite violence against Plaintiff by other inmates.

That leaves the remaining question of whether Defendants violated a clearly established constitutional right by refusing to allow Plaintiff to work on December 21, 2021, after he had made a verbal complaint to Sergeant Kilough but before he had filed a written grievance against them. The Court finds that this question once again comes down to proper construction of the claims in the FAC. Defendants characterize the claims in the FAC in the light most favorable to Defendants-that is, by framing the speech at issue as “an inmate's verbal threat to complain to correctional staff (not identified as their supervisor) regarding work performance[.]” ECF No. 30 at 33. For the reasons already explained in details above, viewing the facts in the light most favorable to Plaintiff, his claims are more properly characterized as alleging that he threatened to make-and did make-a verbal report to Defendants' supervisor Sergeant Kilough regarding staff misconduct in failing to complete work orders that resulted in inhumane prison conditions, that Defendants Howard and Johnson were aware of the verbal report, and that they expressly told Plaintiff they would not allow him to work as a result of his report. So construed, Plaintiff's claims should survive qualified immunity.

The right to report staff misconduct is clearly established. Shepard, 840 F.3d at 688. Further, in the context of a prisoner's verbal threats to bring suit, the Ninth Circuit has held that “[t]he dichotomy [] between formal and informal grievances has no constitutional underpinning” and, thus, “the form of the complaints-even if verbal-is of no constitutional significance[.]” Entler, 872 F.3d at 1039. Thus, in a similar case in this court involving a plaintiff's allegations that he was retaliated against by correctional officers for verbally complaining to the CDCR director about staff misconduct, the court concluded that the defendants were not entitled to qualified immunity despite the fact that “the Ninth Circuit has not addressed whether an inmate's verbal complaints about prison conditions or policy are protected by the First Amendment[.]” Botts v. Shepherd, Case No. 19-cv-1387, 2022 WL 782383, at *2-3 (S.D. Cal. Mar. 14, 2022). Reasoning that the Seventh Circuit had concluded that verbal complaints about general prison conditions or policies of concern to all prisoners are protected by the First Amendment in Pearson, that the Ninth Circuit has “long recognized that a correctional officer may not retaliate against a prisoner for exercising his First Amendment right to report staff misconduct” and “[a] prisoner's general right against retaliatory punishment [i]s clearly established[,]” and that an inmate's personal prison grievances are protected by the First Amendment, the Botts court concluded that the defendants “cannot reasonably argue that correctional officers lack notice that they would infringe an inmate's First Amendment rights by threatening and harming the inmate after the inmate complained to a supervisor about the correctional officers' conduct.” Id. (citing Pearson, 471 F.3d at 740; Shepard, 840 F.3d at 688, 693; and Rhodes, 408 F.3d at 568). Therefore, the court found that the alleged retaliation against the inmate for complaining to a supervisor about staff misconduct was “so clearly and obviously wrong” as to “have provided defendants with some notice, thus barring qualified immunity.” Botts, 2022 WL 782383, at *3 (quoting Hardwick v. Cnty. of Orange, 844 F.3d 1112, 1120 (9th Cir. 2017)). In the alternative, the Botts court noted that, since the plaintiff's verbal complaint to the CDCR Director could reasonably be construed as a verbal grievance or the threat to file a future grievance, the Ninth Circuit's decision in Entler was clearly established law prohibiting retaliation against such verbal threats to file a grievance and thus precluded qualified immunity. Id. (citing Entler, 872 F.3d at 1039).

The Court should reach the same conclusion here. Construing the facts in the FAC liberally and viewing them in the light most favorable to Plaintiff, his threat to report Defendants Howard and Johnson could reasonably be construed as a verbal threat to file a prison grievance, which is protected conduct under clearly established law. Entler, 872 F.3d at 1039.

Defendants also reiterate their argument that, since Plaintiff had no constitutional right to work in his prison plumber job, Defendants Howard and Johnson were not on notice that refusing to work with Plaintiff would be a prohibited adverse action under the First Amendment, and they are thus entitled to qualified immunity on that basis as well. ECF No. 30 at 34. However, as already discussed, the adverse action underlying a retaliation claim need not be an independent constitutional violation. Watison, 668 F.3d at 1114. For the same reason, the proper inquiry in conducting a qualified immunity analysis is not whether the adverse action underlying a retaliation claim was itself a violation of a clearly established constitutional right, but “whether a reasonable public official in [the defendant's] position could have predicted that taking an adverse action against Plaintiff, in response to Plaintiff filing grievances against him, would constitute a violation of the First Amendment.” O'Brien v. Garcia, Case No. 3:19-cv-01113, 2020 WL 2735196, at *5 (S.D. Cal. May 26, 2020). In other words, the question before the Court is whether it was clearly established that Plaintiff's retaliated-against conduct was protected by the First Amendment, not whether the retaliatory adverse actions themselves violated a clearly established constitutional right. Here, construing the facts in the FAC liberally and in the light most favorable to Plaintiff, Plaintiff's allegations suffice to state a claim that the alleged retaliatory conduct of Defendants Howard and Johnson violated his clearly established right to file prison grievances. Therefore, they are not entitled to qualified immunity at this stage of the case.

The Court's recommendation on this point should not be understood as a finding that Plaintiff's claims should ultimately go to trial. See O'Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (explaining that the denial of qualified immunity at the pleading stage “does not mean that this case must go to trial.”). However, “[o]nce an evidentiary record has been developed through discovery, defendants will be free to move for summary judgment based on qualified immunity.” Id. Therefore, the denial of qualified immunity should be without prejudice.

F. Propriety of Permitting Further Amendment to Cure Deficiencies Identified Herein

To the extent the Court dismisses the claims in Plaintiff's FAC, it should not do so without leave to amend “unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar, 698 F.3d at 1212. Therefore, the Court will briefly address the propriety of permitting Plaintiff further leave to amend.

First, the Court should find that Plaintiff's official-capacity claims could not be revived by further amendment of the complaint, because (1) the injunctive relief sought by Plaintiff with respect to the removal of the RVR is not appropriately characterized as prospective; (2) the named Defendants are not state officials with authority to implement the injunctive relief sought; and (3) even if Plaintiff were to amend the complaint to properly name a state official with authority to implement a transfer back to RJD, there is no connection between his First Amendment retaliation claims and the transfer to another prison, and thus the remedy Plaintiff seeks is not a proper prospective remedy for the constitutional violations at issue.

Second, with respect to the First Amendment retaliation claim against Defendant McCourt in his individual capacity, the Court should permit Plaintiff another opportunity to amend the complaint to state facts that could establish the requisite retaliatory motive and causal nexus elements that are missing from his allegations as currently stated. As discussed above, Plaintiff's FAC fails to establish that Defendant McCourt had any retaliatory motive in issuing the January 4, 2022 RVR, even if he conducted an inadequate investigation in reporting the facts as reported to him by Howard and Johnson. Further, with respect to the retaliatory conduct McCourt allegedly took after Plaintiff filed a written grievance against him, Plaintiff fails to establish a causal nexus between that written grievance and his claim that McCourt initiated violence against him by another inmate, leading to Plaintiff being kicked off the yard and sent to administrative segregation. Plaintiff does not connect the dots between McCourt's alleged statements to inmate Knight that he “would not get paid and could not work” because of Plaintiff's grievance and Plaintiff being sent to ASU, and this version of events is seemingly contradicted by the exhibits attached to the FAC. Finally, Plaintiff's FAC and attached exhibits contain no facts from which the Court could conclude that Plaintiff's transfer to another prison had any connection to any actions taken by Defendant McCourt. However, the Court cannot say that “it is absolutely clear” that these deficiencies could not be cured by amendment. Therefore, Plaintiff should be given leave to amend to provide additional facts to support his allegations that Defendant McCourt took adverse actions against him in retaliation for his protected conduct.

IV. CONCLUSION AND RECOMMENDATION

For the reasons set forth above, IT IS HEREBY RECOMMENDED that the District Court issue an Order:

(1) adopting this Report and Recommendation;

(2) GRANTING in part and DENYING in part Defendants' Motion to Dismiss;

(3) DISMISSING Plaintiff's First Amendment retaliation claim against Defendant McCourt in his individual capacity without prejudice and with leave to amend. If Plaintiff does not file a Second Amended Complaint within 30 days to amend his First Amendment retaliation claim against Defendant McCourt to establish retaliatory motive and a causal nexus between Defendant McCourt's alleged adverse actions and Plaintiff's protected conduct, the Court should dismiss the claims against Defendant McCourt with prejudice and should terminate Defendant McCourt from the case;

(4) DENYING the qualified immunity defense of Defendants Howard and Johnson without prejudice;

(5) DISMISSING Plaintiff's official-capacity claims against all three Defendants with prejudice; and

(6) requiring Defendants to respond to the FAC within 60 days, or within 30 days of the filing of a Second Amended Complaint if Plaintiff elects to amend his complaint.

The Court submits this Report and Recommendation to United States District Judge Todd W. Robinson under 28 U.S.C. § 636(b)(1). Any party to this action may file written objections with the Court and serve a copy on all parties no later than August 16, 2024 . The document should be captioned “Objections to Report and Recommendation.”

IT IS SO ORDERED.