Robert Johnson v. Steven Sager , 640 F. App'x 637 ( 2016 )


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  •                                                                           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    NOT FOR PUBLICATION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.
    6