NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 9 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBEN DARIO GARCIA, Jr., No. 14-56687
Plaintiff-Appellant, D.C. No.
3:10-cv-01187-BAS-RBB
v.
SMITH, Supervising Correctional Officer; MEMORANDUM*
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Argued and Submitted July 7, 2016
Pasadena, California
Before: FERNANDEZ, CLIFTON, and FRIEDLAND, Circuit Judges.
Plaintiff-Appellant Ruben Garcia is a prisoner alleging retaliation, equal
protection violations, and conspiracy against several prison officials under § 1983.
He claims that he was placed in and repeatedly retained in administrative
segregation (“Ad-Seg”) in retaliation for filing grievances against prison officials;
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
that he was denied a request to be housed with his brother in retaliation for filing
grievances; that the same denial also violated his equal protection rights; and that
various defendants conspired to retaliate against him by keeping him in Ad-Seg.
Several Defendants were dismissed from the case on summary judgment.
Garcia appealed those grants of summary judgment to this court, and this court
affirmed. Some claims proceeded to trial, where a jury found in favor of
Defendants. Garcia now appeals his post-trial motion for judgment as a matter of
law, as well as certain summary judgment claims that were not previously
appealed. We affirm in part and reverse in part.
I. Retaliation Claims
“[P]urely retaliatory actions taken against a prisoner for having exercised
[the right to file grievances] . . . violate the Constitution.” Rhodes v. Robinson,
408 F.3d 559, 567 (9th Cir. 2005). A Ҥ 1983 claim of retaliation for engaging in
activity protected by the First Amendment in the prison context involves the
following elements: ‘(1) An assertion that a state actor took some adverse action
against an inmate (2) because of (3) that prisoner’s protected conduct, and that
such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5)
the action did not reasonably advance a legitimate correctional goal.’” Jones v.
Williams, 791 F.3d 1023, 1035 (9th Cir. 2015) (quoting Rhodes, 408 F.3d at 567-
68).
2
We affirm the denial of Garcia’s post-trial motion for judgment as a matter
of law. See Fed. R. Civ. P. 50(b). Garcia failed to prove at trial that Vasquez,
Chance, and Stewart took the “adverse action” he complained of—placing him in
Ad-Seg. Indeed, the jury heard evidence that these Defendants were of
insufficient rank even to make Ad-Seg placement decisions.1
We reverse the grant of summary judgment as to Suglich, Cortez, and
Contreras’ decision, as members of the Institutional Classification Committee
(“ICC”), to retain Garcia in Ad-Seg on July 29, and as to Suglich’s initial
determination regarding the same on July 27. Garcia presented evidence2 that at
the ICC hearing, when he asserted his belief that he was being retaliated against,
Contreras replied, “[y]ou should [have] thought about that before you go around
accusing Staff to the courts.” Although Contreras denied making this statement,
the fact dispute over whether he did raises a triable issue as to the alleged
retaliatory motivation behind the ICC’s actions.
Moreover, there are inconsistencies in the reasons given for the Ad-Seg
order, including as to the number of investigations that prompted the placement,
1
Because we reject Garcia’s arguments on the merits, we need not address
Defendants’ request that we dismiss the Rule 50(b) appeal for failure to follow
appellate procedural rules.
2
Garcia’s verified complaint—signed under penalty of perjury that the contents
are true and correct—may be considered an opposing affidavit for summary
judgment purposes. See Schroeder v. McDonald, 55 F.3d 454, 460 & n.10 (9th
Cir. 1995).
3
and as to whether an investigation that began in April 2008 could have been the
reason for Garcia’s placement in Ad-Seg in July 2009. When considered
alongside Contreras’s purported retaliatory statement, these factual inconsistencies
and vagaries raise material questions about Defendants’ proffered rationales.
Similarly, Garcia has raised a genuine issue of fact as to whether Suglich’s
July 27 decision to keep him in Ad-Seg was retaliatory. Suglich’s review form
made no mention of the incident in the dining hall that he later offered as the
reason for the placement, but referred only to a much earlier complaint, which was
then “pending review.” Furthermore, although Suglich declared that his Ad-Seg
decision on July 27 was based solely on the fact of the pending investigations, his
review form indicated that the Ad-Seg placement was for “disciplinary reasons.”
Defendants’ argument that placing Garcia in Ad-Seg served legitimate
correctional goals fails. Garcia has raised triable issues of fact as to Defendants’
retaliatory motives for retaining him in Ad-Seg, and a reasonable jury could
conclude that Defendants’ proffered correctional goals—that removing an inmate
who makes excessive force claims to Ad-Seg is necessary to “preserve[] the
integrity of the investigation and protect[] the inmate from coming into contact
with the allegedly abusive staff”—are pretextual. See Bruce v. Ylst, 351 F.3d
1283, 1289 (9th Cir. 2003) (noting that “prison officials may not defeat a
retaliation claim on summary judgment simply by articulating a general
4
justification for a neutral process, when there is a genuine issue of material fact as
to whether the action was taken in retaliation for the exercise of a constitutional
right”); see also id. (“[I]f, in fact, the defendants abused the gang validation
procedure as a cover or a ruse to silence and punish [the plaintiff] because he filed
grievances, they cannot assert that Bruce’s validation served a valid penological
purpose, even though he may have arguably ended up where he belonged.”).
Garcia points to a lack of any evidence as to how Defendants’ purported policy
advances the correctional goals of preserving the integrity of the excessive force
investigations or keeping Garcia himself safe, and Defendants provide no rebuttal
to this factual deficit. Defendants cite Cal. Code Regs. tit. 15 § 3335(a), but that
regulation merely states, as a general matter:
When an inmate’s presence in an institution’s general [inmate]
population . . . presents an immediate threat to the safety of the inmate
or others, endangers institution security or jeopardizes the integrity of
an investigation of an alleged serious misconduct . . . the inmate shall
be immediately removed from the [general population] and be placed
in administrative segregation.
There is no evidence that keeping Garcia in the general population would have
posed an immediate threat to safety or endanger prison security. Nor does the
record show that segregating an inmate who has alleged being a victim of
excessive force will “preserve[] the integrity of the investigation.” Defendants
also offer no explanation why segregating an inmate from the general inmate
population will keep him safe from guards who may seek to do him harm, even
5
though Defendants’ arguments on appeal suggest that keeping Garcia safe from
guards was the motivation for the placement. There is thus at least a triable issue
as to whether Garcia’s retention in Ad-Seg was justified by legitimate correctional
goals. See Jones, 791 F.3d at 1029 (reversing a grant of summary judgment on a
prisoner’s retaliation claim in part because the correctional goal advanced by the
defendant found no support in the evidence).
We also reverse the grant of summary judgment as to Suglich, Cortez, and
Contreras’ decision to retain Garcia in Ad-Seg on September 10, and as to
Suglich’s classification of the Rules Violation Report (“RVR”) as “serious.”
Although Defendants assert in their declarations that they could not confirm
Garcia’s proffered justifications for refusing his housing assignment, the evidence
presented in Garcia’s verified complaint potentially rebuts those assertions.
Garcia asserts that at the ICC hearing, an officer present, Newman, stated that “I
am aware that inmate Garcia is restricted from being housed with black, white, or
Mexican inmates . . . Garcia[’s] file clearly documents that fact . . . he is not
supposed to be housed with [M]exican inmates, he is here because they try to
house him with . . . I don’t see how, I personally filed all this information with
records.” Garcia further asserts that Defendants “proceeded to confirm such
housing restrictions by reviewing documents within [his] central file . . .
Defendants proceeded to act with a total disregard to such information and . . .
6
ordered that [he] be retain[ed] in punitive Administrative Segregation.”
Particularly taking into account the ICC’s possibly retaliatory decisions in July,
Garcia has raised a triable issue as to the retaliatory nature of Defendants’ decision
here.
Garcia also raises a genuine issue as to Suglich’s categorizing the RVR as
“serious.” The record indicates that Suglich reviewed the RVR and marked it as
“serious” on September 14. Yet the ICC review occurred on September 10, and
the ICC form states that it considered the RVR. If indeed the ICC reviewed
Garcia’s records at the hearing on September 10 and determined that Garcia’s
housing refusal was justified but kept him in Ad-Seg anyway, then Suglich’s
deeming the RVR “serious” four days later could have been retaliatory as well.
Although Defendants point out that, as a matter of prison regulations, Suglich was
required to categorize as “serious” an RVR for refusing to accept a housing
assignment, if Suglich by September 10 had already determined that the RVR was
meritless, the regulation would seem not to require him to categorize it at “serious”
on September 14.
Finally, we reverse the grant of summary judgment as to Suglich’s refusal of
Garcia’s request to be housed with his brother. In his verified complaint, Garcia
asserted that when he was brought into Suglich’s office to discuss his housing
request, Suglich told him:
7
[A]s long as you are in this facility you will never, never be allowed
to cell-up with your[] ex-cellie Garcia . . . this is my yard and you are
creating to[o] much proble[m]s. . . . [B]ecause of the grievances and
litigation you guys have going on with the Department we are going
to ensure that you guys are not allowed to cell-up together.
Defendants never attempt to rebut this account, and Defendants offer no legitimate
penological interest that was served by denying Garcia’s housing request.3
Contrary to Defendants’ argument, the fact that inmates have no right to
house with a sibling is irrelevant. Garcia does not claim that refusing his housing
request was a standalone constitutional violation; instead, he is arguing that refusal
to grant that request was the “adverse action” taken in retaliation for his filing of
grievances. As we have explained, “[t]o succeed on [a] retaliation claim, [a
plaintiff] need not establish an independent constitutional interest in either
assignment to a given prison or placement in a single cell, because the crux of his
claim is that state officials violated his First Amendment rights by retaliating
against him for his protected speech activities.” Pratt v. Rowland, 65 F.3d 802,
806 (9th Cir. 1995). Garcia has raised triable issues of fact as to First Amendment
retaliation.4
3
The district court disregarded Suglich’s statement, concluding that it was a mere
allegation and could not be considered as evidence on summary judgment. As
discussed above, however, a verified complaint serves as an opposing affidavit for
summary judgment purposes.
4
Defendants mention that Garcia has not proffered any evidence as to which
particular defendant actually denied his cell move request, but his verified
8
II. Equal Protection Claims
We affirm the grant of summary judgment on Garcia’s claim that Suglich
singled him out for disparate treatment when Suglich denied his housing request.
This court held in the prior appeal that “Garcia failed to raise a genuine dispute of
material fact as to whether similarly situated individuals were intentionally treated
differently without a rational relationship to a legitimate state purpose.” Garcia v.
Smith, 588 F. App’x 711, 711-12 (9th Cir. 2014) (unpublished). The law of the
case doctrine thus bars Garcia from again raising this claim against Suglich. See
Jeffries v. Wood, 114 F.3d 1484, 1488-89 (9th Cir. 1997) (en banc), overruled on
other grounds, Gonzalez v. Arizona, 677 F.3d 383, 389 (9th Cir. 2012) (en banc).
We find Garcia’s arguments against application of the law of the case doctrine in
this instance unpersuasive.
III. Conspiracy Claims
We affirm in part and reverse in part the grant of summary judgment on
Garcia’s conspiracy claims. Regarding Suglich, Cortez, and Contreras, Garcia
raises a genuine issue as to whether they had conspired to retaliate against him.
As members of the ICC, they each necessarily came to a meeting of the minds in
deciding to retain Garcia in Ad-Seg. Because there is an issue of fact as to their
complaint strongly implies that Suglich was at least one of the decisionmakers.
There is at least a triable issue of fact in that regard.
9
retaliatory motive and penological justifications, there is also a triable issue as to
the conspiracy claim against them. See Avalos v. Baca, 596 F.3d 583, 592 (9th
Cir. 2010) (to support a claim of conspiracy under § 1983, a plaintiff must
establish “(1) the existence of an express or implied agreement among the
defendant officers to deprive him of his constitutional rights, and (2) an actual
deprivation of those rights resulting from that agreement” (quoting Avalos v. Baca,
517 F. Supp. 2d 1156, 1169-70 (C.D. Cal. 2007)).5
Regarding Stewart, Chance, and Vasquez, aside from Garcia’s failed
allegations that these defendants retaliated against him by placing him into Ad-Seg
on July 25, Garcia points to no evidence linking them to any allegedly retaliatory
actions. His conspiracy claim as to these defendants therefore fails.
As for Wall and Smith, although Garcia alleges that they made statements
that could potentially support individual claims of retaliation, he provides no
evidence that either of them had any meeting of the minds with any other
5
We note that “[c]onspiracy is not itself a constitutional tort under § 1983” and is
generally used to “enlarge the pool of responsible defendants by demonstrating
their causal connections to the [underlying constitutional] violation.” Lacey v.
Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012). Here, because the
conspiracy alleged is a conspiracy to violate the same constitutional rights that
Garcia pursues against Suglich, Cortez, and Contreras individually, Garcia’s
framing of the same alleged violations as a conspiracy claim appears to add
nothing to this case as a practical matter.
10
Defendant to retaliate against him. Garcia’s conspiracy claims against Wall and
Smith thus fail.
AFFIRMED IN PART and REVERSED IN PART.6
6
We hasten to add that, other than with regard to Garcia’s post-trial motion for
judgment as a matter of law, statements about the facts in this disposition are based
on the record at summary judgment and are not meant to establish those facts as
the law of the case.
11
FILED
No. 14-56687, Garcia v. Smith, et al.
SEP 09 2016
CLIFTON, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent, in part. I would affirm the district court’s judgment in
its entirety.
I do not believe that Plaintiff Garcia presented evidence sufficient to
establish genuine disputes of material fact. Most importantly, I focus on the
majority’s objection, above at 4–5, that Defendants failed to present evidence to
support the purported prison policy that caused Plaintiff to be transferred to
administrative segregation. I have no difficulty discerning how the policy served
legitimate penological purposes. If an inmate complains about excessive force by
corrections officers, it make obvious sense to put the prisoner into what amounted
to protective custody, to protect both the integrity of the investigation and the
prisoner from alleged abusers. We might think there was a better way to
accomplish those results, but we are not experts. Plaintiff presented no evidence to
the contrary. Our speculation should not fill in for Plaintiff’s lack of evidence.