Robert Sealey v. Frank Busichio

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT ANTHONY SEALEY, No. 14-35958

Plaintiff-Appellant, D.C. No. 2:13-cv-00975-BJR

v.
MEMORANDUM*
FRANK BUSICHIO; CHRISTINE
BUNNELL, MCC - Medical Health Care
Provider; KENNETH B. LAUREN; MR.
BECHLER, CC2,

Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding

Submitted May 15, 2017**
Seattle, Washington

Before: HAWKINS, GOULD, and PAEZ, Circuit Judges.

Robert Sealey appeals the district court’s grant of summary judgment to the

defendants, personnel at Washington State’s Monroe Correctional Complex. We

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The Prison Litigation Reform Act requires that a prisoner exhaust available

administrative remedies before filing an action to challenge prison conditions. 42

U.S.C. § 1997e(a). A threat of retaliation may render the prison grievance system

effectively unavailable, and excuse a prisoner’s failure to exhaust administrative

remedies. McBride v. Lopez, 807 F.3d 982, 984, 987–88 (9th Cir. 2015). To avoid

the exhaustion bar on the ground of a fear of retaliation, a prisoner must show both

a subjective and objective basis for that fear. Id. To meet the subjective prong, the

prisoner must “provide a basis for the court to find that he actually believed prison

officials would retaliate against him if he filed a grievance” and that he was

actually deterred from filing a grievance. Id. at 987–88. To meet the objective

prong, “there must be some basis in the record for the district court to conclude

that a reasonable prisoner of ordinary firmness would have believed that the prison

official’s action communicated a threat not to use the prison’s grievance procedure

and that the threatened retaliation was of sufficient severity to deter a reasonable

prisoner from filing a grievance.” Id. at 987.

Sealey averred that he would have filed a grievance about the denial of pain

medication but for the medical staff’s threat that if Sealey “caused any trouble

about the medical care, [he] would be transferred to another institution where

really bad inmates were and [he] would not receive any medical care.” This sworn

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statement satisfies Sealey’s burden as to the subjective prong. Cf. id. at 988.

Sealey did not, however, present sufficient evidence to create a genuine

dispute of material fact as to the objective prong. The medical staff’s statement did

not reference the grievance system, and there is no objective indication that a

reasonable prisoner would have understood that statement to mean that the prisoner

would be retaliated against for filing a grievance. Compare id. (concluding that

McBride failed to make the requisite showing to meet the objective prong), with

Turner v. Burnside, 541 F.3d 1077, 1081, 1084–86 (11th Cir. 2008) (holding that a

warden’s threat to “put [Turner] . . . in the van . . . and transfer [him] so far south

that [he] would never be able to see [his] family again till [he] got out of the

Georgia Prison System,” and the warden’s tearing up Turner’s submitted formal

grievance and telling Turner that the warden “‘had better not hear of another

grievance or lawsuit pertaining to [Turner] getting shocked,’” may be sufficient to

excuse nonexhaustion (last alteration in original)). Also, Sealey’s observations of

inmates being transferred after filing grievances, and statements by other inmates

telling Sealey he would be transferred if he filed a grievance do not meet the

objective prong. Sealey did not assert that the medical staff caused other inmates

to be transferred. The objective prong rests on the actions of officials, not on

statements of other prisoners. See McBride, 807 F.3d at 988.

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The other evidence that Sealey asserts shows retaliation—particularly

destructive and frequent cell searches, shortened visitation times, and less time to

shower and move between locations—is insufficient to create an issue of material

fact. He asserts that officers who engaged in these retaliatory actions were in the

medical office when he had a disagreement with his care provider, and that the

disagreement motivated the officers to retaliate. Although circumstantial evidence

can be sufficient to overcome summary judgment in a retaliation case, such

evidence must be specific. McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d

870, 882 (9th Cir. 2011). References to unnamed officers being present in the

medical office at unspecified times, who then engaged in various activities at

unspecified times, is not enough. Other than Sealey’s bare speculation and his

vague assertion that “other inmates confirmed[] that [he] was being treated this

way because [he] complained so much about medical care,” Sealey offers no

evidence that these actions were taken in retaliation for his complaints. Pure

speculation, without “any basis in personal knowledge for the plaintiff’s subjective

belief about the defendant’s motive” is not cognizable evidence. Carmen v. S.F.

Unified Sch. Dist., 237 F.3d 1026, 1028 (9th Cir. 2001).

Moreover, while Sealey did not file a grievance here on his claims of

inadequate medical care, Sealey continued to file a stream of complaints in kites on

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his alleged lack of medical care. This somewhat weakens the objective basis for

his contention that he was deterred here from using the normal grievance process.

AFFIRMED.