NOT FOR PUBLICATION FILED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.
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