FILED
NOT FOR PUBLICATION JAN 30 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STANFORD PAUL BRYANT, No. 11-55153
Plaintiff - Appellant, D.C. No. 3:07-cv-00200-JM-PCL
v.
MEMORANDUM *
J. TIM OCHOA, Warden, Chief Deputy
Warden, in his official capacity and as an
individual; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Submitted October 10, 2012 **
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
California state prisoner Stanford Paul Bryant appeals pro se the district
court’s summary judgment in his 42 U.S.C. § 1983 retaliation action. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo, Brodheim v. Cry, 584
F.3d 1262, 1267 (9th Cir. 2009), and we affirm as to defendants Bastida, Brown,
Stanford, Hopper, McNair, Janda, Magnum, Ries, Carnes, Gonzales, Harmon,
Ochoa, Mudra, Williams, Ryan, Romero, Barra, and Raske. We reverse and
remand as to defendants Best, Olivarez, and Jiminez.
The district court properly granted summary judgment to defendants
Bastida, Brown, Stanford, Hopper, McNair, Janda, Magnum, Ries, Carnes,
Gonzales, Harmon, Ochoa, Mudra, Williams, Ryan, Romero, Barra, and Raske.
Bryant failed to demonstrate the existence of a genuine dispute of material fact as
to whether those defendants’ actions were motivated by Bryant’s protected activity
or served no legitimate penological goal. See Brodheim, 584 F.3d at 1269 n.3
(setting forth the elements of a retaliation claim in the prison context); Bruce v.
Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003) (to survive summary judgment, the
prisoner must “put forth evidence of retaliatory motive”); Pratt v. Rowland, 65
F.3d 802, 806 (9th Cir. 1995) (“[A] successful retaliation claim requires a finding
that ‘the prison authorities' retaliatory action did not advance legitimate goals of
the correctional institution or was not tailored narrowly enough to achieve such
goals.’”) (citation omitted).
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The district court erred in granting summary judgment to defendant Best
because Bryant demonstrated the existence of a genuine dispute of material fact as
to whether Best retaliated against Bryant by harassing him, using unnecessary
force, and filing a false report. See Brodheim, 584 F.3d at 1271 (to survive
summary judgment, the prisoner “need only put forth evidence of retaliatory
motive, that, taken in the light most favorable to him, presents a genuine issue of
material fact as to [the defendant’s] intent.” (internal quotation and citation
omitted)).
The district court erred in granting summary judgment to defendant Olivarez
because a genuine dispute of material fact exists as to whether Olivarez retaliated
against Bryant by threatening and harassing him and by filing a false report. See
Brodheim, 584 F.3d at 1270 (“[T]he mere threat of harm can be an adverse action,
regardless of whether it is carried out because the threat itself can have a chilling
effect.”); Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (“[W]here a prisoner
alleges a correctional officer has falsely accused him of violating a prison rule in
retaliation for the prisoner’s exercise of his constitutional rights, the correctional
officer’s accusation is not entitled to the ‘some evidence’ standard of review that
we afford disciplinary administrative decisions.”).
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Finally, the district court erred in granting summary judgment to defendant
Jiminez because a genuine dispute of material fact exists as to whether Jiminez
threatened Bryant and knowingly signed a false report in retaliation for Bryant’s
protected activity. See Brodheim, 584 F.3d at 1270 (a threat need not be “explicit
and specific to constitute an adverse action”); Bruce, 351 F.3d at 1288-89 (prison
official’s alleged statements alluding to protected activity as a justification for
adverse action raised triable issue as to retaliatory motive when combined with
suspect timing).
AFFIRMED in part, REVERSED and REMANDED in part.
4 11-55153
Stanford Bryant v. J. Ochoa
Combined Opinion