(PC) Gleason v. Gallegos

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 THOMAS LEE GLEASON, JR., Case No. 1:19-cv-00539-NONE-EPG (PC)

12 Plaintiff, ORDER FOLLOWING INITIAL SCHEDULING CONFERENCE 13 v.

14 G. PLACENCIA, 15 Defendant. 16 17 Thomas Gleason, Jr. (“Plaintiff”), is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 23, 2020, the Court 19 held an Initial Scheduling Conference (“Conference”). Plaintiff telephonically appeared on his 20 own behalf. Counsel Jeremy Duggan telephonically appeared on behalf of Defendant. 21 During the Conference, and with the benefit of the scheduling conference statement 22 provided by Defendant and the initial disclosures provided by Plaintiff, the Court and the 23 parties discussed relevant documents in this case and their possible locations. In addition to 24 opening discovery generally, the Court ordered that certain documents that are central to the 25 dispute be promptly produced. 26 Therefore, in an effort to secure the just, speedy, and inexpensive disposition of this 27 /// 28 /// 1 action,1 and after consideration of Federal Rule of Civil Procedure 26(b)(1),2 IT IS ORDERED3 2 that: 3 1. Defendants have sixty days from the date of service of this order to produce to 4 Plaintiff witness statements and evidence gathered from investigation(s) into the 5 incident(s) at issue in the complaint. At this time Defendants do not have to 6 produce internal reviews or internal critiques. If any witness statements or 7 evidence is withheld pursuant to the official information privilege, the withheld 8 statements and evidence shall be submitted to the Court for in camera review 9 pursuant to the procedures laid out in the Court’s scheduling order. 10 /// 11 /// 12 /// 13 /// 14 /// 15 16 1 See, e.g., United States v. W.R. Grace, 526 F.3d 499, 508–09 (9th Cir. 2008) (“We begin with the principle that the district court is charged with effectuating the speedy and orderly administration of justice. There 17 is universal acceptance in the federal courts that, in carrying out this mandate, a district court has the authority to enter pretrial case management and discovery orders designed to ensure that the relevant issues to be tried are 18 identified, that the parties have an opportunity to engage in appropriate discovery and that the parties are adequately and timely prepared so that the trial can proceed efficiently and intelligibly.”). 19 2 Federal Rule of Civil Procedure 26 provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, 20 considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and 21 whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Ibid. 22 3 Pursuant to Federal Rule of Civil Procedure 16, “[a]t any pretrial conference, the court may consider and take appropriate action on the following matters: . . . controlling and scheduling discovery, including orders 23 affecting disclosures and discovery under Rule 26 and Rules 29 through 37” and “facilitating in other ways the just, speedy, and inexpensive disposition of the action.” Fed. R. Civ. P. 16(c)(2)(F). See also Little v. City of 24 Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (“The district court has wide discretion in controlling discovery.”). Federal Rule of Civil Procedure 16 vests the district court with early control over cases “toward a process of 25 judicial management that embraces the entire pretrial phase, especially motions and discovery.” In re Arizona, 528 F.3d 652, 655 (9th Cir. 2008) (affirming district court’s requiring that prison officials prepare a Martinez 26 report to give detailed factual information involving a prisoner’s suit under 42 U.S.C. § 1983 and stating “district courts have wide latitude in controlling discovery.”). See also Advisory Committee Notes to 1993 Amendment to 27 Federal Rules of Civil Procedure regarding Rule 26(a) (“The enumeration in Rule 26(a) of items to be disclosed does not prevent a court from requiring by order or local rule that the parties disclosed additional information 28 without a discovery request.”). 1 2. Within sixty days from the date of service of this order, Defendants shall 2 produce to Plaintiff all relevant medical and psychiatric records from 2017 that 3 relate to the incident(s) at issue in the complaint or serve their objections to 4 producing these documents. Plaintiff may challenge any objections by filing a 5 motion to compel. 6 IT IS SO ORDERED. ll Dated: _March 23, 2020 [see ey 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

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10 THOMAS LEE GLEASON, Case No. 1:19-cv-00539-LJO-EPG (PC)

11 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT’S 12 v. MOTION TO DISMISS BE DENIED

13 G. PLACENCIA, (ECF NO. 34)

14 Defendant. FOURTEEN-DAY DEADLINE

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16 17 I. BACKGROUND 18 Thomas Gleason (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This case is proceeding on 20 Plaintiff’s claims against defendant G. Placencia (“Defendant”) for excessive force in violation 21 of the Eighth Amendment and retaliation in violation of the First Amendment. (ECF Nos. 10, 22 27, & 28). 23 On December 17, 2019, Defendant filed a motion to dismiss Plaintiff’s retaliation 24 claim. (ECF No. 34). On December 26, 2019, Plaintiff filed his opposition. (ECF No. 37). 25 On December 31, 2019, Defendant filed his reply. (ECF No. 38). 26 For the reasons that follow, the Court will recommend that Defendant’s motion to 27 dismiss be denied. 28 \\\ 1 II. PLAINTIFF’S SECOND AMENDED COMPLAINT 2 a. Summary 3 The events alleged in the complaint occurred at the Delano State Prison reception center 4 building. 5 On March 20, 2017, at approximately 2:30 p.m., Defendant gave all the United States 6 postal mail to an inmate to pass out. The inmate threw out just about all the mail for the black 7 inmates. Plaintiff personally got three of his letters out of the trash. 8 Plaintiff confronted Defendant about the matter, and Defendant told Plaintiff not to tell 9 him how to run the unit. Plaintiff then asked for a 6021 form. Defendant asked Plaintiff why 10 he wanted one, and Plaintiff replied “because I’m going to 602 this matter.” Defendant then 11 said “turn around and cuff-up.” Defendant then took Plaintiff into the sally port, pressed 12 Plaintiff’s face against the wall, and hit Plaintiff on the side of the head and in the ribs. 13 Defendant then said “listen[,] I run this fucking building the way I see fit do you hear me.” 14 Plaintiff said “yes,” because he did not want to be hit again. Defendant then asked Plaintiff if 15 he still wanted the 602, and Plaintiff replied “no.” Defendant then slapped Plaintiff on the side 16 of the head and said, “yeah that’s what I thought[,] now go lock-up shit head.” 17 Plaintiff alleges that Defendant “did chill my constitutional rights towards fruture [sic] 18 First [A]mendment activity and make me [illegible] about writing a 602 at all.” 19 b. Screening Order 20 The Court screened Plaintiff’s Second Amended Complaint, and ordered that this case 21 proceed on Plaintiff’s claims against Defendant for excessive force in violation of the Eighth 22 Amendment and retaliation in violation of the First Amendment. (ECF Nos. 10, 27, & 28). 23 III. DEFENDANT’S MOTION TO DISMISS 24 a. Defendant’s Position 25 Defendant points out that “Gleason alleges that he orally requested a grievance form, 26 27

28 1 A 602 is also referred to as a grievance. 1 and threatened to file a grievance against Defendant Placencia, and that in response Placencia 2 pressed Gleason’s face against a wall and punched him in the ribs.” (ECF No. 34-1, p. 1). 3 Defendant argues that “Gleason’s oral statements are not the constitutionally protected conduct 4 necessary to support a claim for retaliation.” (Id.). 5 Moreover, even if the oral statements were protected, Defendant is entitled to qualified 6 immunity because “[i]t was not clearly established at the time (in early 2017) that such oral 7 statements were constitutionally protected.” (Id. at 5). “There is no Ninth Circuit or Supreme 8 Court precedent establishing that Gleason’s alleged conduct was protected.” (Id. at 7). 9 Additionally, there is no robust census of persuasive authority. (Id.). 10 b. Plaintiff’s Position 11 Plaintiff argues that his oral threat to file a grievance was protected conduct, and that it 12 was clearly established that it was protected conduct when he told Defendant that he was going 13 to file a grievance. 14 c. Legal Standards 15 i. Motions to Dismiss 16 In considering a motion to dismiss, the Court must accept all allegations of material fact 17 in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007); Hosp. Bldg. Co. v. 18 Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts 19 in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), 20 abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 21 31 F.3d 813, 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved 22 in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro 23 se pleadings “must be held to less stringent standards than formal pleadings drafted by 24 lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints 25 should continue to be liberally construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)). 26 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 27 complaint. See Iqbal, 556 U.S. at 679. “Federal Rule of Civil Procedure 8(a)(2) requires only 28 ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order 1 to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’” 2 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting 3 Conley v. Gibson, 355 U.S. 41, 47 (1957)). “The issue is not whether a plaintiff will ultimately 4 prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 5 416 U.S. at 236 (1974). 6 The first step in testing the sufficiency of the complaint is to identify any conclusory 7 allegations. Iqbal, 556 U.S. at 679. “Threadbare recitals of the elements of a cause of action, 8 supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 9 U.S. at 555). “[A] plaintiff’s obligation to provide the grounds of his entitlement to relief 10 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause 11 of action will not do.” Twombly, 550 U.S. at 555 (citations and quotation marks omitted). 12 After assuming the veracity of all well-pleaded factual allegations, the second step is for 13 the court to determine whether the complaint pleads “a claim to relief that is plausible on its 14 face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional 15 12(b)(6) standard set forth in Conley, 355 U.S. at 45-46). A claim is facially plausible when 16 the plaintiff “pleads factual content that allows the court to draw the reasonable inference that 17 the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 18 556). The standard for plausibility is not akin to a “probability requirement,” but it requires 19 “more than a sheer possibility that a defendant has acted unlawfully.” Id. 20 ii. First Amendment Retaliation Claims 21 A retaliation claim requires “five basic elements: (1) an assertion that a state actor took 22 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and 23 that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the 24 action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 25 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted); accord Watson v. Carter, 668 F.3d 1108, 26 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 27 While prisoners have no freestanding right to a prison grievance process, see Ramirez v. 28 Galaza, 334 F.3d 850, 860 (9th Cir.2003), “a prisoner's fundamental right of access to the 1 courts hinges on his ability to access the prison grievance system,” Bradley v. Hall, 64 F.3d 2 1276, 1279 (9th Cir.1995), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230 3 n.2 (2001). Because filing administrative grievances and initiating civil litigation are protected 4 activities, it is impermissible for prison officials to retaliate against prisoners for engaging in 5 these activities. Rhodes, 408 F.3d at 567. 6 iii. Qualified Immunity 7 “The doctrine of qualified immunity protects government officials ‘from liability for 8 civil damages insofar as their conduct does not violate clearly established statutory or 9 constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 10 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 11 In determining whether a defendant is entitled to qualified immunity, the Court must 12 decide (1) whether the facts alleged by plaintiff make out a violation of a constitutional right; 13 and (2) whether that right was clearly established at the time of the officer's alleged 14 misconduct. Id. at 232. 15 To be clearly established, a right must be sufficiently clear “that every ‘reasonable 16 official would [have understood] that what he is doing violates that right.’” Reichle v. 17 Howards, 132 S. Ct. 2088, 2090 (2012) (quoting Al–Kidd, 563 U.S. at 741) (alteration in 18 original). This immunity protects “all but the plainly incompetent or those who knowingly 19 violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 20 d. Analysis 21 The issues before this Court are whether a threat to file a grievance is protected conduct, 22 and if so, whether this was clearly established at the time of the incident alleged in the 23 complaint. Under Ninth Circuit precedent, the answer to both questions is yes.2 24 Defendant appears to argue that there is no Ninth Circuit case law on point. However, 25 the Ninth Circuit addressed these issues in Entler v. Gregoire, 872 F.3d 1031 (2017): 26

27 2 Because Plaintiff has alleged that he threatened to file a grievance regarding the incident alleged in the complaint, and because this is protected conduct, the Court need not, and will not, address whether Plaintiff 28 engaged in protected conduct by requesting a grievance form. 1 The most fundamental of the constitutional protections that prisoners retain are 2 the First Amendment rights to file prison grievances and to pursue civil rights litigation in the courts, for “[w]ithout those bedrock constitutional guarantees, 3 inmates would be left with no viable mechanism to remedy prison injustices.” Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). 4

5 The dichotomy that the district court drew between formal and informal grievances has no constitutional underpinning; nor does the distinction between 6 a threat to initiate litigation and the litigation. To the contrary, “[t]he applicability of the constitutional right to redress of grievances does not hinge 7 on the label the prison places on a particular complaint,” Brodheim v. Cry, 584 8 F.3d 1262, 1267 n.4 (9th Cir. 2009), and embraces threats to sue, Jones v. Williams, 791 F.3d 1023, 1035–36 (9th Cir. 2015). Thus, in Jones, where the 9 prisoner was sanctioned for verbally confronting the Penitentiary's Assistant Food Services Manager in the prison's kitchen “with complaints of 10 discrimination and a threat to sue,” we held that summary judgment dismissing 11 plaintiff's retaliation claim was improper because “Jones's [verbal] complaints of discrimination to his supervisors and statements of intention to file suit were 12 conduct protected by the First Amendment.” Id.

13 The district court should have recognized, therefore, that the form of the 14 complaints—even if verbal, let alone, as here, written—is of no constitutional significance, and that threats to sue fall within the purview of the 15 constitutionally protected right to file grievances. See Hargis v. Foster, 312 16 F.3d 404, 411 (9th Cir. 2002) (reversing summary judgment on a prisoner's First Amendment claim because “a jury could reasonably conclude that the prison 17 officials acted unreasonably in characterizing [a prisoner's verbal threat to sue] as an attempt to coerce ...”). 18

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20 There remains the issue of qualified immunity. Appellees would not be entitled to prevail if the constitutional right violated “was clearly established at the time 21 of the challenged conduct.” City of San Francisco v. Sheehan, ––– U.S. ––––, 22 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015). “A clearly established right is one that is ‘sufficiently clear that every reasonable official would have 23 understood that what he is doing violates that right.’ ” Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (quoting 24 Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 25 (2012)). “In the Ninth Circuit, we begin our inquiry by looking to binding precedent. If the right is clearly established by decisional authority of the 26 Supreme Court or this Circuit, our inquiry should come to an end.” Boyd v. Benton Cty., 374 F.3d 773, 781 (9th Cir. 2004) (citation omitted). 27

28 Although there is no Supreme Court case directly on point, there is clear Ninth 1 Circuit precedent. 2 First, it was, of course, clearly established when Entler filed his grievances in 3 2012 that he had the “constitutional right” to do that, see Turner, 482 U.S. at 84, 107 S.Ct. 2254—a right that did not “hinge on the label” the prison placed on 4 his complaints. Brodheim, 584 F.3d at 1271 n.4. Nor could the prison's officials 5 “escape constitutional scrutiny by citing a legitimate penological interest” in the absence— as here—of a “valid, rational connection” between the adverse action 6 imposed on the prisoner and the government's stated interest. Id. at 1272–73. And it was also clearly established that Entler had the time-honored right to 7 pursue civil litigation, a right liberally exercised for over forty years. See 8 William Bennett Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv. L. Rev. 610, 610–11 (1979) (recognizing 9 that “[p]risoners, like other people, may sue state and local officials under 42 U.S.C. § 1983, to redress the deprivation of federal constitutional rights” and 10 discussing an “upsurge in volume” of such suits beginning in the 1970s). 11 It was also beyond cavil that Entler's grievances were the first requisite steps in 12 the pursuit of civil litigation. See Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (“[E]xhaustion is now required for all action[s] ... 13 brought with respect to prison conditions, whether under § 1983 or any other 14 Federal law.”). The threat of civil litigation if a prisoner's complaints are not redressed is implicit in every grievance; explicitly articulating that threat as a 15 precursor to initiating civil litigation does not suddenly make that threat more 16 intimidating or coercive.

17 Thus, in the analogous Title VII retaliation context, we noted—twenty years before Entler was punished—that “[w]e see no legal distinction to be made 18 between the filing of a charge which is clearly protected, and threatening to file 19 a charge.” Gifford v. Atchison, Topeka and Santa Fe Ry. Co., 685 F.2d 1149, 1156 n.3 (9th Cir. 1982) (citation omitted). 20 We find the Gifford footnote persuasive since we see no material distinction 21 between retaliation in the Title VII context and prisoner retaliation. The sanctity 22 of a constitutional right is at least of equal moment as a statutory right. And even though, in the face of Ninth Circuit precedent, we need not resort to out-of23 circuit caselaw, we note with approval two out-of-circuit district court cases involving prisoner litigation. 24

25 In Sprau v. Coughlin, 997 F.Supp. 390 (W.D.N.Y. 1998), the district court held that “plaintiff's conduct in threatening to file a [prisoner] complaint was 26 protected by the First Amendment's guarantee of the right to petition the government for redress of grievance.” Sprau, 997 F.Supp. at 393. 27

28 Similarly, in Carter v. Dolce, 647 F.Supp.2d 826 (E.D. Mich. 2009), the district 1 court held that there was “little difference between retaliating against a 2 [prisoner] for filing a grievance, and retaliating for threatening to file one.” Carter, 647 F.Supp.2d at 834. The court cited as analogous two Sixth Circuit 3 decisions, one of which expressly relies on the Gifford footnote: In Jackson v. City of Columbus, 194 F.3d 737, 756–57 (6th Cir. 1999), abrogated on other 4 grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 5 L.Ed.2d 1 (2002), the circuit court held that an employee engages in protected activity under the First Amendment when he threatens to file a lawsuit on a 6 matter of public concern, and in Polk v. Yellow Freight System, Inc., 801 F.2d 190 (6th Cir. 1986), the circuit court held that there “ ‘is no legal distinction ... 7 between the filing of a charge which is clearly protected ... and threatening to 8 file a charge’ ” under Title VII's anti-retaliation provision, Polk, 801 F.2d at 200 (quoting Gifford footnote). The court in Carter further recognized that 9 “threatening to resort to the formal grievance process is itself the first step in that process.” Carter, 647 F.Supp.2d at 834. 10

11 In essence, it is illogical to conclude that prison officials may punish a prisoner for threatening to sue when it would be unconstitutional to punish a prisoner for 12 actually suing. Thus, once again, as we held in Hargis, ten years before Entler was sanctioned, a threat to sue—even if verbal—may not ipso facto rise to the 13 level of coercion to support prison retaliation. 14 Taking the complaint as true in the face of a 12(c) motion to dismiss on the 15 pleadings, see Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009) (“We must 16 accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party”), we cannot conclude that a 17 reasonable official would not have understood that disciplining Entler for threatening to file a civil suit was constitutionally impermissible. Therefore, on 18 the papers before us, Appellees are not entitled to qualified immunity for 19 Entler's threats to initiate civil litigation.

20 Entler v. Gregoire, 872 F.3d 1031, 1039–43 (9th Cir. 2017) (footnotes omitted). 21 In this case, Plaintiff has alleged that Defendant gave mail to an inmate to pass out. 22 That inmate threw out almost all of the black inmates’ mail, and Plaintiff had to get of his 23 letters out of the trash. Plaintiff confronted Defendant about the matter, and Defendant told 24 Plaintiff not to tell him how to run the unit. Plaintiff then asked for a grievance form, and told 25 Defendant that he was going to file a grievance regarding the matter. Instead of giving Plaintiff 26 a grievance form, Defendant responded by assaulting Plaintiff, and telling Plaintiff that he 27 “run[s] this fucking building the way [he] see[s] fit….” After the assault Defendant asked 28 Plaintiff if he still wanted a grievance form, and Plaintiff said no. 1 These allegations state a quintessential claim for retaliation, and the fact that Plaintiff 2 orally threatened to file a grievance, but was allegedly assaulted by Defendant before he had 3 the chance to actually file the grievance, does not change the analysis. 4 As discussed above, threatening to sue is protected conduct. While Plaintiff did not 5 explicitly threaten to sue, Plaintiff allegedly threatened to file a grievance. Because of the 6 exhaustion requirement, “[t]he threat of civil litigation if a prisoner's complaints are not 7 redressed is implicit in every grievance….” (Id. at 1042). Thus, Plaintiff’s threat to file a 8 grievance was also a threat to sue, which is protected conduct. 9 Defendant makes much of the fact that Plaintiff threatened to file a grievance, but was 10 allegedly assaulted before he actually filed a grievance. However, the Court in Entler made 11 clear that “the distinction between a threat to initiate litigation and the litigation” “has no 12 constitutional underpinning.” (Id. at 1039). The same is true in regards to the distinction 13 Defendant attempts to make between threats to file grievances and filing grievances. The Court 14 in Entler stated that “the form of the complaints … is of no constitutional significance….” 15 (Id.). The Court in Entler also quoted Carter v. Dolce, 647 F.Supp.2d 826 (E.D. Mich. 2009), 16 with approval, in which “the district court held that there was ‘little difference between 17 retaliating against a [prisoner] for filing a grievance, and retaliating for threatening to file 18 one.’” Entler, 872 at 1042 (alteration in original) (quoting Carter, 647 F.Supp.2d at 834). 19 Thus, Plaintiff engaged in protected conduct when he threatened to file a grievance. 20 Next, the Court turns to Defendant’s argument that he is entitled to qualified immunity. 21 In determining whether a defendant is entitled to qualified immunity, the Court must decide (1) 22 whether the facts alleged by plaintiff make out a violation of a constitutional right; and (2) 23 whether that right was clearly established at the time of the officer's alleged misconduct. 24 Pearson, 555 U.S. at 232. 25 As to the first prong, as discussed above, Plaintiff has sufficiently alleged that he was 26 retaliated against in violation of his First Amendment rights. 27 As to the second prong, as discussed in Entler, a threat to sue is protected conduct, and 28 this was clearly established at (if not before) the time of the incident in Entler, which occurred 1 in 2012. As the incident alleged in Plaintiff’s complaint occurred in 2017, it was clearly 2 established at the time of the incident that threatening to file a grievance, which is also 3 implicitly a threat to initiate litigation, is protected conduct.3 Thus, Defendant is not entitled to 4 qualified immunity.4 5 IV. RECOMMENDATION 6 For the reasons set forth above, the Court HEREBY RECOMMENDS that Defendant’s 7 motion to dismiss be DENIED. 8 These findings and recommendations are submitted to the United States district judge 9 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 10 (14) days after being served with these findings and recommendations, any party may file 11 written objections with the court. Such a document should be captioned “Objections to 12 Magistrate Judge’s Findings and Recommendations.” 13 \\\ 14 \\\ 15 \\\ 16 17 3 In arguing that he is entitled to qualified immunity, Defendant points out that “[t]he magistrate judge here has previously issued findings and recommendations in an unrelated case stating that ‘the existing precedent 18 in this district and the other districts in California had placed beyond debate in early 2017 that verbal conduct is protected conduct for purposes of a retaliation claim.’ Williams v. Amay, No. 1:17-cv-01332-AWI-EPG (PC), 19 2018 U.S. Dist. LEXIS 150309, at (E.D. Cal. Aug. 31, 2018). Those findings and recommendations were not adopted. See Williams v. Amay, No. 1:17-cv-01332-AWI-EPG (PC), 2019 WL 6728054, at (E.D. Cal. Mar. 29, 20 2019) (declining to adopt findings and recommendations and finding defendants were entitled to qualified immunity).” (ECF No. 34-1, p. 6). 21 While Defendant is correct that this Court’s findings and recommendations in Williams were not adopted, the district judge’s order in Williams is not on point. As the district judge in Williams pointed out, “[w]ith respect 22 to protected activity, the Complaint appears to expressly identify three activities: (1) requesting Wellbutrin, (2) explaining to Dr. Amay his past experience with other antidepressants, and (3) telling Dr. Amay what 15 C.C.R. § 23 3364.1(a)(5)(G) states.” Williams, 2019 WL 6728054, at . Williams had nothing to do with whether a threat to file a grievance is protected conduct, which is the issue in this case. Moreover, in granting qualified immunity, the 24 district judge stated “Defendants maintained medical treatment that complied with the Eighth Amendment, albeit not Plaintiff’s choice of treatment before and after Plaintiff engaged in First Amendment protected conduct. The 25 Court is aware of no cases, and Plaintiff cited none, that would put a reasonable official on notice that such conduct violated the First Amendment.” Id. at . This grant of qualified immunity had nothing to do with the 26 fact that the allegedly protected conduct was verbal, rather than in writing. 4 In his reply, defense counsel argues that Plaintiff made threatening comments, and “requests that the 27 Court remind Plaintiff Gleason of his obligation of civility in this litigation.” (ECF No. 38, p. 4). Plaintiff does have an obligation of civility in this litigation, but the Court does not read Plaintiff’s opposition as including a 28 threat to either the Court or defense counsel. 1 Any reply to the objections shall be served and filed within seven (7) days after service 2 || of the objections. The parties are advised that failure to file objections within the specified 3 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 4 || (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 IT IS SO ORDERED. Dated: _ January 8, 2020 [sf ey g UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 THOMAS LEE GLEASON, No. 1:19-cv-00539-LJO-EPG (PC)

12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 v. (Doc. Nos. 34 & 40) 14 G. PLACENCIA,

15 Defendant.

16 17 Thomas Gleason (“plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 In his second amended complaint, plaintiff alleges as follows. (See Doc. No. 27 at 21 3.) On March 20, 2017, plaintiff was housed at Delano State Prison when the defendant, G. 22 Palencia, a Correctional Officer, gave mail to an inmate to be distributed. (Id.) That inmate 23 placed most mail addressed to black inmates in the trash. (Id.) Plaintiff retrieved three letters 24 addressed to him from the trash and informed defendant of what had occurred. (Id.) 25 Defendant’s initial response was dismissive, and when plaintiff requested an inmate grievance 26 form, defendant asked plaintiff why he wanted the form. (Id.) Plaintiff responded that he “was 27 going to 602 this matter.” (Id.) Defendant then ordered plaintiff to turn around, placed 28 plaintiff in handcuffs, took him to a sally port, pressed his face against a wall, hit him on the 1 side of the head, and punched him in the ribs. (Id.) After informing plaintiff that defendant 2 runs the building where plaintiff is housed as defendant sees fit, defendant asked plaintiff if he 3 understood. (Id.) Not wanting to be hit again, plaintiff said “yes.” (Id.) Defendant then asked 4 plaintiff if he still wanted an inmate grievance form. (Id.) Plaintiff responded that he no longer 5 wanted a form. (Id.) Defendant slapped plaintiff on the side of the head and said “yeah, that’s 6 what I thought.” (Id.) Defendant then instructed plaintiff to “go lock up.” (Id.) Plaintiff 7 brings an Eighth Amendment claim asserting excessive use of force and a First Amendment 8 claim for retaliation. 9 On December 17, 2019, defendant filed a motion to dismiss plaintiff’s retaliation 10 claim. (See Doc. No. 34.) Defendant argues that plaintiff’s oral request for an inmate 11 grievance form, coupled with plaintiff’s oral response to defendant’s question stating he 12 (plaintiff) intended to file an inmate grievance about the incident, are insufficient to support a 13 retaliation claim because the “oral statements” are not constitutionally protected 14 conduct. (Doc. No. 34-1 at 1.) Defendant further argues that even if the statements are 15 constitutionally protected conduct, defendant is entitled to dismissal on qualified immunity 16 grounds because the protected nature of the “oral threat” was not clearly established at the time 17 of the incident. (Id. at 2.) On December 26, 2019, plaintiff filed his opposition to defendant’s 18 motion. (Doc. No. 37.) On December 31, 2019, defendant replied. (Doc. No. 38.) And on 19 January 14, 2020, plaintiff filed a sur-reply. (Doc. No. 42.) 20 On January 9, 2020, prior to receipt of plaintiff’s sur-reply, the assigned magistrate 21 judge issued findings and recommendations, recommending that defendant’s motion to dismiss 22 be denied. (See Doc. No. 40.) The findings and recommendations first recognize that filing an 23 administrative grievance is protected activity and that defendant had conceded that point in his 24 motion to dismiss. (Doc. Nos. 40 at 4–5, 34-1 at 4.) The findings and recommendations next 25 conclude that “a threat to file a grievance is protected conduct” and finally that the protected 26 nature of the conduct was clearly established on the date of the alleged incident. (Doc. No. 40 27 at 5–10.) The magistrate judge discussed the Ninth Circuit’s decision in Entler v. Gregoire, 28 ///// 1 872 F.3d 1031 (9th Cir. 2017), in analyzing the motion to dismiss on the grounds of qualified 2 immunity. (Id.) 3 The parties were provided an opportunity to file objections to the findings and 4 recommendations. On January 23, 2020, defendant did so, objecting to the determination that 5 he is not entitled to dismissal on qualified immunity grounds. (See Doc. No. 44.) Defendant 6 puts forth two arguments. (Id. at 3–6.) First, defendant argues that it was not clearly 7 established that an oral threat to file a grievance was constitutionally protected conduct on 8 March 20, 2017—the date of events. (Id. at 34.) Defendant correctly notes that Entler was 9 decided on October 6, 2017, after the conduct in this case occurred. (Id. at 4–6.) Defendant 10 argues, Entler cannot support the determination that he is not entitled to qualified 11 immunity. (Id.) Second, defendant argues that Entler is, in any event, inapplicable because the 12 qualified immunity analysis in that case “addressed a written threat” to file a lawsuit submitted 13 in a grievance form, and this case, by contrast, involves “an oral threat to file a grievance.” (Id. 14 at 2, 4-5.) 15 The magistrate judge concluded that, based on previous Ninth Circuit precedent cited 16 by the court in Entler, that plaintiff’s conduct in this case was constitutionally protected, and 17 the protection was clearly established at the time of the events. The court agrees with the 18 magistrate judge’s conclusions and is not persuaded that defendant is entitled to dismissal on 19 qualified immunity. 20 To begin, defendant’s reading of Entler ignores aspects of that decision: the defendants 21 in Entler were denied qualified immunity as it related to the plaintiff’s threats to file a civil suit 22 (as opposed to his threat to file criminal charges) precisely because it was already clearly 23 established at the time of events involved in Entler—June and July 2012—that a threat to file a 24 civil suit was constitutionally protected conduct. Entler, 872 F.3d at 1043. If defendants in 25 Entler were not entitled to qualified immunity based on conduct that occurred in 2012, then a 26 defendant whose similar alleged conduct is not entitled to qualified immunity based on the 27 absence of clearly established law with respect to events that allegedly occurred some five 28 years later in 2017. 1 Defendant’s argument that an oral request for a grievance form and an oral threat to file 2 a grievance are not protected conduct is unpersuasive. He repeats this argument from his 3 motion to dismiss, citing the same district court decisions, even though the Ninth Circuit in 4 Entler noted the binding Ninth Circuit precedent pre-dating the events at issue here. Indeed, 5 the Ninth Circuit in Entler stated: “The district court should have recognized [ ] that the form 6 of the complaints—even if verbal, let alone, as here, written—is of no constitutional 7 significance, and that threats to sue fall within the purview of the constitutionally protected 8 right to file grievances.” Entler, 872 F.3d at 1039 (citing Hargis v. Foster, 312 F.3d 404, 411 9 (9th Cir. 2002)). The court also contrasted the district court’s analysis with “[a]nother district 10 court in our circuit” that “correctly recognized [ ] that the form of the grievance is of no 11 constitutional moment.” Id. at 1039 n.13 (citing Merrick v. Ellis, No. 5:15-cv-1052-MMM 12 (GJS), 2015 WL 9999194, at (C.D. Cal. Nov. 30, 2015), report accepted as modified, No. 13 EDCV 15-1052-AB (GJS), 2016 WL 447796 (C.D. Cal. Feb. 4, 2016)). Here, defendant’s 14 attempt to distinguish between plaintiff’s “oral threat” and a “written threat” is also of no 15 moment, based on binding Ninth Circuit precedent predating Entler. 16 The Ninth Circuit, as the magistrate judge did here, has rejected defendant’s distinction 17 between a lawsuit and a grievance as well as that between the threat of filing and an 18 accomplished act as follows:

19 The dichotomy that the district court drew between formal and 20 informal grievances has no constitutional underpinning; nor does the distinction between a threat to initiate litigation and the 21 litigation. To the contrary, “[t]he applicability of the constitutional right to redress of grievances does not hinge on the label the prison 22 places on a particular complaint,” Brodheim v. Cry, 584 F.3d 1262, 23 1267 n.4 (9th Cir. 2009), and embraces threats to sue, Jones v. Williams, 791 F.3d 1023, 1035–36 (9th Cir. 2015). Thus, in Jones, 24 where the prisoner was sanctioned for verbally confronting the Penitentiary’s Assistant Food Services Manager in the prison's 25 kitchen “with complaints of discrimination and a threat to sue,” we 26 held that summary judgment dismissing plaintiff's retaliation claim was improper because “Jones’s [verbal] complaints of 27 discrimination to his supervisors and statements of intention to file suit were conduct protected by the First Amendment.” Id. 28 1 Entler, 872 F.3d at 1039. Thus, the Ninth Circuit has stated prior to Entler that the label 2 attached to a prisoner’s complaint is immaterial. Likewise, threats of action, through either 3 inmate grievance or lawsuit, have been clearly “embraced” as one of the contours of the 4 constitutional right to redress of grievances. 5 Moreover, the district court decisions cited by defendant actually do conclude that 6 threatening to file a grievance or complaint is protected conduct, even if those courts arrived at 7 that determination by other means.1 8 Next, the magistrate judge declined to address whether plaintiff engaged in protected 9 conduct by requesting an inmate grievance form, explaining that “[b]ecause Plaintiff has 10 alleged that he threatened to file a grievance,” further analysis was unnecessary. (Doc. No. 40 11

12 1 Gleason v. Franklin, No. CV 15-8380-CBM (DFM), 2017 WL 3203404, at -6 (C.D. Cal. 13 May 16, 2017), report and recommendation adopted, No. CV1508380CBMDFM, 2017 WL 3197226 (C.D. Cal. July 26, 2017), citing Gifford v. Atchison, Topeka & Santa Fe Ry. Co., 685 14 F.2d 1149, 1156 n.3 (9th Cir. 1982) to support finding “‘no legal distinction to be made between the filing of a charge which is clearly protected and threatening to file a charge’ ” and 15 further observing “… the majority of district courts in California to have addressed this issue 16 have held that an inmate’s threat to file a prison grievance is entitled to First Amendment protection,” though ultimately concluding that in 2012, threats to file a grievance were not 17 clearly protected and qualified immunity applied); Christ v. Blackwell, No. 2:10-CV-0760-EFB P, 2016 WL 4161129, at (E.D. Cal. Aug. 4, 2016) (finding “[m]ost courts that have 18 addressed the issue have concluded that an inmate’s threat to file a grievance constitutes 19 protected speech unless it is delivered in an argumentative, confrontational, or disorderly manner” but “reluctantly” concluding that, “at the time of the incident underlying this action 20 (2008), it was not firmly established that a prisoner’s threat to file a grievance (as opposed to a 21 written grievance or lawsuit) constituted conduct protected by the First Amendment”); Ahmed v. Ringler, No. 2:13-cv-1050 MCE DAD P., 2015 WL 502855 (E.D. Cal. Feb. 5, 2015) (finding 22 plaintiff’s conduct of verbally and informally complaining about a prior search and seizure of his property protected but concluding it was not clearly established in 2012 that “a prisoner’s 23 verbal complaint (as opposed to filing a formal grievance or lawsuit) constituted protected 24 conduct under the First Amendment”). Moreover the cases cited by defendant also addressed facts distinguishable from those presented here, primarily encompassing threats to file a 25 grievance rendered in a future-oriented manner (“do X, or I will file a grievance”). See e.g. Christ, 2016 WL 4161129, at (“[P]laintiff told [the defendant] that if [the defendant] again 26 failed to call plaintiff’s building for plaintiff to pick up his pain medication, plaintiff would file 27 a staff complaint.”); Ahmed, 2015 WL 502855 (finding that the defendant corrections officers took adverse action against plaintiff based on his protected conduct of verbally and informally 28 complaining about a prior search and seizure of his property). 1 at 5 n.2.) Plaintiff, did not characterize his request for a grievance form as a “threat” in his 2 second amended complaint. While he did use the term “threat” in his opposition to the pending 3 motion to dismiss (Doc. No. 37 at 2), it is unclear whether he did to because he believes that 4 reflects the nature of his claim or whether he was merely attempting to rebut defendant’s 5 characterization and legal argument. Here, according to the complaint’s allegations, it was 6 defendant who asked plaintiff why plaintiff wanted the inmate grievance form. 7 Some courts, but not all, have treated a prisoner’s request for a grievance form as 8 distinct from a threat to file a grievance or lawsuit, often citing Rhodes v. Robinson, 408 F.3d 9 559, 567 (9th Cir. 2005), in which the court stated: “Of fundamental import to prisoners are 10 their First Amendment rights to file prison grievances and to pursue civil rights litigation in the 11 courts” (internal quotations and citation omitted). Cases involving this type of allegation— 12 failure to produce a form or allow access to a form necessary for prison grievances or 13 complaints—have found refusal to produce such a form violative of the First Amendment right 14 underlying the form’s purpose. See Newman v. Hartley, No. 1:11-CV-1177-MJS PC, 2012 WL 15 2532247, at -3 (E.D. Cal. June 29, 2012) (finding that an inmate’s request for grievance 16 forms constituted “pursuit of protected conduct,” specifically “attempting to obtain grievance 17 forms that would allow him to complain,” which was “protected conduct under the First 18 Amendment” because “filing a grievance” and “[p]ursuing a civil rights legal action” are both 19 protected conduct under the First Amendment); Howard v. Foster, 208 F. Supp. 3d 1152, 1160 20 (D. Nev. 2016) (denying defendants’ motion for summary judgment where an inmate alleged 21 corrections officers retaliated against him for both filing a civil rights lawsuit and requesting 22 grievance forms, and finding whether the officers knew about the civil rights lawsuit, “they 23 were certainly aware that [the inmate] requested grievance forms from them while they were 24 searching his cell,” which was adequate to allege retaliation); Caputo v. Gonzalez, No. 1:15-cv25 01008-EPG (PC), 2018 WL 1426293, at (E.D. Cal. Mar. 22, 2018), report and 26 recommendation adopted sub nom. Caputo v. Gonzales, No. 1:15-cv-01008-LJO-EPG (PC), 27 2018 WL 1941547 (E.D. Cal. Apr. 25, 2018) (finding that an inmate’s allegation he was 28 assaulted for asking for a grievance form constituted adverse action against inmate for inmate’s 1 protected conduct); Farvela v. Barth, No. 2:16-cv-00831-RFB-PAL, 2018 WL 3469014, at 2 (D. Nev. July 18, 2018) (denying defendant’s motion for summary judgment and finding that 3 an inmate’s “request for a grievance form was a protected activity” where plaintiff objected to 4 the confiscation of certain of his materials and requested a grievance form from the defendant, 5 “who refused to give him one” and instead falsified charges against the plaintiff). 6 Whether plaintiff’s conduct constituted a threat to file an inmate grievance or the first 7 step in the grievance filing process is immaterial: as binding Ninth Circuit precedent 8 establishes, plaintiff’s conduct was constitutionally protected and the protected nature of that 9 conduct was clearly established at the time of the events in this case. Assuming plaintiff’s 10 allegations to be true, as the court must on a motion to dismiss, the court finds the “form of a 11 grievance” is not a “proper distinction to be drawn in terms of a ‘clearly established right’.” 12 Merrick, 2015 WL 9999194, at -6 (declining to decide defendant’s entitlement to qualified 13 immunity on motion to dismiss because any ruling should be based on “a tangible set of facts 14 with evidentiary support,” but noting that the court “ha[d] reason to doubt” defendants’ 15 argument for qualified immunity predicated on a distinction between verbal and written 16 complaints). 17 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this 18 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 19 and in light of the binding Ninth Circuit authority addressed above, the court finds the findings 20 and recommendations to be supported by the record and proper analysis. 21 Accordingly: 22 1. The January 9, 2020 findings and recommendations (Doc. No. 40), are ADOPTED 23 in full; 24 2. Defendant’s motion to dismiss (Doc. No. 34) is DENIED; 25 ///// 26 ///// 27 ///// 28 ///// wOAOe 4:40 YOUN IN SOMME VO PIO ee TOY UME ODO

1 3. Defendant has twenty-one days from the date this order is entered to file his answer; 2 and 3 4. This case is referred back to the magistrate judge for further proceedings consistent 4 with this order. 5 IT IS SO ORDERED. ~ ‘is 7 Dated: _ June 29, 2020 See Th Ns 3 UNITED STATES DISTRICT JUDGE

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9 THOMAS LEE GLEASON, JR., Case No. 1:19-cv-00539-NONE-EPG (PC) 10 Plaintiff, ORDER DENYING PLAINTIFF’S 11 MOTION TO COMPEL DISCOVERY v. 12 (ECF. NO. 54) G. PLACENCIA, 13 Defendant. 14 15 16 Thomas Gleason (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 18 This case is proceeding on Plaintiff’s Second Amended Complaint, “on Plaintiff’s 19 claims against defendant G. Placencia for excessive force in violation of the Eighth 20 Amendment and retaliation in violation of the First Amendment.” (ECF No. 28, pgs. 1-2). 21 On July 20, 2020, Plaintiff filed a motion to compel discovery. (ECF No. 54). On 22 August 5, 2020, Defendant filed his opposition. (ECF No. 57). Plaintiff’s motion to compel is 23 now before the Court. 24 I. The Request at Issue1 25 In Plaintiff’s First Set of Requests for Production of Documents, Request for Production 26 27 1 Plaintiff did not attach a copy of his request or Defendant’s response to the motion he filed with the Court, even though he was directed to do so (ECF No. 50, p. 4). However, Plaintiff apparently attached at least 28 some of the relevant documents to the motion he served on Defendant, and Defendant provided the documents to the Court. The Court appreciates that Defendant provided these documents. 1 No. 1, Plaintiff requested: 2 the production of any and all complaints filed against defendant G. Placencia for excessive force while employed at Delano State Prison. This request includes 3 any and all complaint, grievancess involving excessive force herein after excessive force wherein the defendant filed a report or offered testimony that 4 was false misleading or tending to cover-up the conduct. any additional acts 5 involving dishonest criminal acts of moral turpitude the names address telephone numbers of all person whom were witness to any of thease acts. 6 (ECF No. 57, pgs. 26-27) (errors in original).2 7 Defendant’s response was as follows: 8 Objection. This request is overbroad, seeks documents that are irrelevant and 9 the information is not proportional to the needs of the case. This request seeks information that is improper character evidence. This request assumes facts, i.e. 10 that Defendant “filed a report or offered testimony that was false misleading or 11 tending to cover up the conduct.” To the extent the request seeks documents contained in Defendant’s personnel files, the request seeks documents protected 12 by the federal common law official information privilege, California Government Code section 6254, California Evidence Code Sections 1040, 1041 13 and 1043, Penal Code sections 832.7 and 832.8, and Defendant’s common law 14 right to privacy. To the extent the request seeks appeal inquiry records for 602 administrative appeals by Plaintiff or other inmates and designated as staff 15 complaints, the request seeks information that is protected from disclosure by the federal common law official information privilege, and by regulations, 16 including but not limited to Title 15, California Code of Regulations (Title 15) 17 sections 3084.9, 3321 and 3370, and CDCR Department Operations Manual (DOM) section 54100.25.2. To the extent the request seeks use of force 18 reviews/critiques conducted by CDCR in connection with every use of force and/or CDCR Internal Affairs investigation records, the request seeks 19 information that is protected from disclosure by the federal common law official 20 information privilege, and confidential documents under applicable provisions of Title 15, California Code of Regulations including sections 3084.9 and 3321, 21 and the DOM, and the disclosure of which would compromise the safety and security of the institution, inmates and staff. This request seeks documents 22 containing confidential and private information about inmates’ safety issues, 23 custody classifications, prison security, and other sensitive information, the disclosure of which would create a hazard to the safety and security of the 24 institution, and violates the inmates’ right to privacy and confidentiality. Defendant notes that the records of Plaintiff’s staff complaint for the events that 25 are the subject of this lawsuit are responsive to this request. Plaintiff is already 26

27 2 It appears that Plaintiff filed a Second Set of Requests for Production of Documents, in which Plaintiff 28 also asked for “production of any and all complaints filed against the defendant for excessive force while employed at Delano State Prison.” (ECF No. 57, pgs. 13-14); (see also id. at 33). in possession of his own staff complaint and the responses to the staff complaint, 1 and therefore those records are not produced in response to this discovery 2 request. The confidential records of the appeal inquiry into Plaintiff’s staff complaint, which include narratives of witness statements, were previously 3 produced to Plaintiff in Defendant’s response to a Court order (ECF No. 49) and therefore will not be produced again in response to this discovery request. 4 Defendant has not located any other responsive documents that are not subject to 5 the objections stated in this response. Documents that are being withheld based on the objections stated in this response are identified in the Privilege Log that is 6 served with these responses. 7 (ECF No. 57, pgs. 27-28). 8 II. Plaintiff’s Motion to Compel 9 Plaintiff appears to argue that the records identified in the privilege log that was 10 provided in response to Plaintiff’s First Set of Requests for Production of Documents, Request 11 for Production No. 1, should be produced because Plaintiff’s interests outweigh any interest 12 Defendant might assert. Plaintiff argues that his request satisfies the relevance standard of 13 Federal Rule of Civil Procedure 26, that is, his request is “reasonably calculated to lead to the 14 discovery of admissible evidence.” (ECF No. 54, pgs. 2-3). Plaintiff states that he cannot be 15 expected to know what is in Defendant’s file. However, Plaintiff argues that if what is in 16 Defendant’s file shows a pattern of behavior, Plaintiff should be given the discovery. 17 III. Defendant’s Opposition to Motion to Compel Production of Documents 18 Defendant alleges that “[t]here are records of one other complaint against Defendant 19 alleging his excessive use of force.” (ECF No. 57, p. 1). Defendant argues that these records 20 should not be produced because they are subject to the official information privilege, are 21 privileged and confidential under state law, are inadmissible as improper character evidence, 22 and will not lead to the discovery of admissible evidence. 23 IV. Legal Standards 24 “Unless otherwise limited by court order, the scope of discovery is as follows: Parties 25 may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim 26 or defense and proportional to the needs of the case, considering the importance of the issues at 27 stake in the action, the amount in controversy, the parties’ relative access to relevant 28 information, the parties’ resources, the importance of the discovery in resolving the issues, and 1 whether the burden or expense of the proposed discovery outweighs its likely benefit. 2 Information within this scope of discovery need not be admissible in evidence to be 3 discoverable.” Fed. R. Civ. P. 26(b)(1).3 4 Federal Rule of Evidence 404 states: 5 (a) Character Evidence.

6 (1) Prohibited Uses. Evidence of a person’s character or character trait is 7 not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. 8 9 . . .

10 (b) Crimes, Wrongs, or Other Acts.

11 (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not 12 admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. 13 (2) Permitted Uses; Notice in a Criminal Case. This evidence may be 14 admissible for another purpose, such as proving motive, opportunity, intent, 15 preparation, plan, knowledge, identity, absence of mistake, or lack of accident. 16 Fed. R. Evid. 404(a) & (b). 17 Federal Rule of Evidence Rule 406 states that “[e]vidence of a person’s habit or an 18 organization’s routine practice may be admitted to prove that on a particular occasion the 19 person or organization acted in accordance with the habit or routine practice.” Fed. R. Evid. 20 406. 21 V. Analysis 22 Plaintiff appears to be asking the Court to compel Defendant to produce the records 23 identified in Defendant’s privilege log (ECF No. 57, p. 40). Because it does not appear that 24 records regarding a different excessive force incident involving a different inmate are relevant 25 to any party’s claim or defense in this action, except as inadmissible character evidence, 26

27 3 Federal Rule of Civil Procedure 26(b)(1) no longer states that “[r]elevant information need not be 28 admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” 1 Plaintiff’s motion will be denied. 2 In this case, Plaintiff alleges that, after he asked for a 602 form, Defendant cuffed him 3 and then took him to the sally port. Defendant then pressed Plaintiff’s face against the wall and 4 hit him on the side of the head and in the ribs. After a short conversation, Defendant then 5 slapped Plaintiff. 6 Plaintiff has not explained how records regarding a different excessive force incident 7 involving a different inmate are relevant in this action, and it is not obvious that they are. 8 Plaintiff does allege that the records could show a pattern of behavior. However, Plaintiff does 9 not explain how. To the extent Plaintiff is attempting to use evidence of a different excessive 10 force incident to show that Defendant used excessive force in the incident alleged in this action, 11 that use would be inadmissible as character evidence. To the extent that Plaintiff is attempting 12 to allege a habit, Plaintiff has not sufficiently shown that the records could be used in this case 13 to show habit. “Habit ‘describes one’s regular response to a repeated specific situation.’ 14 Fed.R.Evid. 406 advisory committee note (describing conduct that qualifies as habit as ‘semi15 automatic’). In deciding whether certain conduct constitutes habit, courts consider three factors: 16 (1) the degree to which the conduct is reflexive or semi-automatic as opposed to volitional; (2) 17 the specificity or particularity of the conduct; and (3) the regularity or numerosity of the 18 examples of the conduct.” United States v. Angwin, 271 F.3d 786, 799 (9th Cir. 2001) 19 (footnote omitted), overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th 20 Cir. 2007) (en banc). Here, there is no indication that Defendant’s regular response to a 21 repeated specific situation is to assault inmates. At most, Plaintiff has evidence that Defendant 22 assaulted inmates on two occasions (the incident in his case, and the incident alleged in the 23 records Plaintiff is seeking), which is not enough to establish habit. 24 Thus, based on Plaintiff’s motion, it does not appear that records regarding a different 25 excessive force incident involving a different inmate are relevant to any party’s claim or 26 defense in this action, except as inadmissible character evidence, and Plaintiff’s motion will be 27 \\\ 28 \\\ wOAOe 4:40 IN NS OME OIC vee TOY OV VIN

1 || denied.* 2 VI. Order 3 For the foregoing reasons, IT IS ORDERED that Plaintiff's motion to compel (ECF No. 4 ||54) is DENIED. 5 IT IS SO ORDERED. 1 Dated: _ September 2, 2020 [spe ey — g UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

28 + Because the documents are not relevant, the Court will not address Defendant’s other arguments as to why he should not be required to produce the documents.

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5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS LEE GLEASON, JR., Case No. 1:19-cv-00539-NONE-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 FOR APPOINTMENT OF PRO BONO v. COUNSEL 14 G. PLACENCIA, (ECF No. 75)

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17 18 Thomas Gleason, Jr. (“Plaintiff”), is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 20 On July 15, 2021, Plaintiff filed a motion for appointment of pro bono counsel. (ECF No. 21 75). Plaintiff asks for appointment of counsel because this case will require him to take the stand 22 to testify on his behalf; because this is an exceptional circumstance; because this case has merit; 23 because of the complexity of this case and the legal issues involved; and because, should this case 24 proceed to trial, this case will be quite difficult to present to a jury. 25 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 26 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 27 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 1 | 490 US. 296, 298 (1989). However, in certain exceptional circumstances the Court may request 2 | the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 3 Without a reasonable method of securing and compensating counsel, the Court will seek 4 | volunteer counsel only in the most serious and exceptional cases. In determining whether 5 || “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 6 | the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 7 | complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 8 The Court will not order appointment of pro bono counsel at this time. The Court has 9 || reviewed the record in this case, and at this time the Court is unable to make a determination that 10 | Plaintiff is likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can 11 | adequately articulate his claims. 12 For the foregoing reasons, IT IS ORDERED that Plaintiff's motion for appointment of pro 13 bono counsel is DENIED. 14 5 IT IS SO ORDERED.

16 | Dated: _ July 26, 2021 [see hey UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28