FILED
NOT FOR PUBLICATION
FEB 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT E. JOHNSON, No. 13-35255
Plaintiff - Appellant, D.C. No. 2:11-cv-01117-RSM
v. MEMORANDUM*
STEVEN SAGER, TRU Counselor; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez,Chief District Judge, Presiding
Submitted December 7, 2015
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and GLEASON,** District
Judge.
Robert E. Johnson, a Washington state prisoner, appeals from the district
court’s order granting the defendants’ motion for summary judgment and their
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
motion to strike portions of plaintiff’s submissions in his 42 U.S.C. § 1983 action.
Johnson contends that the defendants discriminated against him because he is
African American when they refused to allow him to possess a cardboard box in
his cell, initiated a bunk transfer, refused to facilitate a legal phone call, and
delayed opening a prison conference room. He contends that the phone call refusal
and other prison staff conduct violated his right of access to the courts. He
contends that prison staff undertook much of this conduct in retaliation for his legal
activities, and as part of a conspiracy to deprive him of his right to equal
protection. In addition, Johnson contends that the district court improperly
excluded portions of his filings related to the motion for summary judgment. We
have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and reverse and
remand in part.
We review a district court’s decision to grant summary judgment and its
qualified immunity determinations de novo. See Torres v. City of Madera, 648
F.3d 1119, 1123 (9th Cir. 2011). Viewing the evidence in the light most favorable
to Johnson, the non-moving party, the court must determine whether there are any
genuine issues of material fact such that a reasonable jury could return a verdict for
Johnson, and whether the district court correctly applied the substantive law. See
Pavoni v. Chrysler Group, LLC, 789 F.3d 1095, 1098 (9th Cir. 2015).
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We affirm the district court’s grant of summary judgment and qualified
immunity with respect to all claims against all defendants except with regard to the
equal protection and retaliation claims against Michael Silva related to the
cardboard boxes. With regard to all of the other defendants and claims, Johnson
did not demonstrate a triable issue of fact regarding these defendants’ intent or
purpose to discriminate against him based upon his membership in a protected
class, Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013), that they took
actions adverse to Johnson because of his protected conduct, Wood v. Beauclair,
692 F.3d 1041, 1051 (9th Cir. 2012), or that they conspired to deprive him of equal
protection, or of equal privileges and immunities under the laws, Gillespie v.
Civiletti, 629 F.2d 637, 641 (9th Cir. 1980).
However, the district court erred in granting summary judgment on
Johnson’s equal protection and retaliation claims against defendant Michael Silva.
Viewing the facts in the light most favorable to Johnson, a reasonable jury could
find that Silva denied Johnson cardboard boxes in his cell because of his race while
allowing similarly-situated white prisoners to have cardboard boxes in their cells.
Johnson claims that Silva told him “whites or anybody else could have as many
boxes as [Silva] says,” and submitted affidavits purportedly from white prisoners
who stated that they were allowed to retain cardboard boxes in their cells. Under
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these alleged facts, Silva inconsistently administered a prison policy that prohibited
inmates from retaining cardboard boxes in their cells. The existence of a legitimate
reason for Silva to deny Johnson a cardboard box does not negate a possible intent
to impermissibly discriminate against Johnson based on race. See Serrano v.
Francis, 345 F.3d 1071, 1082–83 (9th Cir. 2003) (holding that the fact that
defendant’s racial remarks were in response to comments offered by the plaintiff
did not negate an inference that defendant intended to discriminate). Nor does it
eliminate the possibility that Johnson’s grievances and civil rights litigation were
the “substantial” or “motivating” factors behind Silva’s conduct. See Brodheim v.
Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting Soranno’s Gasco, Inc. v.
Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)). The timing of Silva’s alleged
statements and conduct relative to Johnson’s legal activities and grievances raises
a genuine issue of material fact that should have survived summary judgment. See
Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th Cir. 2003). Accordingly, we reverse
the district court’s grant of summary judgment in favor of defendant Silva on
Johnson’s equal protection and retaliation claims related to the cardboard boxes,
and remand for further proceedings consistent with this memorandum.
The magistrate judge’s Report and Recommendation found no constitutional
violation, and found it unnecessary to “address defendants’ argument that they are
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also entitled to qualified immunity.” The magistrate judge nonetheless
recommended a finding that “the record demonstrates that defendants are entitled
to qualified immunity” because, as relevant to the cardboard boxes, “it was not
clearly established that Mr. Johnson’s constitutional rights would be violated by
officers confiscating cardboard boxes in accordance with prison policy . . . .” The
trial court summarily adopted the Report and Recommendation. Because Silva
may have violated Johnson’s constitutional rights, we reverse the district court’s
grant of summary judgment on qualified immunity in favor of defendant Silva
regarding Johnson’s equal protection and retaliation claims, and remand for the
district court to consider Silva’s eligibility for qualified immunity in the first
instance. See Serrano, 345 F.3d at 1077.
We review the district court’s evidentiary rulings for an abuse of discretion.
Wicker v. Oregon ex rel. Bureau of Labor, 543 F.3d 1168, 1173 (9th Cir. 2008).
At the summary judgment stage, “a party does not necessarily have to produce
evidence in a form that would be admissible at trial, as long as the party satisfies
the requirements of Federal Rules of Civil Procedure 56.” Block v. City of Los
Angeles, 253 F.3d 410, 418–419 (9th Cir. 2001). However, on review we conclude
that none of the district court’s evidentiary exclusions constitutes an abuse of
discretion, so we affirm its grant of the motion to strike.
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Costs on appeal are awarded to Johnson.
AFFIRMED in part; REVERSED and REMANDED in part.
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