Perry v. Boon-Sharp

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 STEVEN PERRY, JR., Case No. 3:22-cv-00196-CLB1 5 Plaintiff, ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 6 v. [ECF No. 32] 7 C/O BOONE-SHARP, 8 Defendant. 9 10 This case involves a civil rights action filed by Plaintiff Steven Perry, Jr. (“Perry”) 11 against Defendant Debra Boone-Sharp (“Boone-Sharp”). Currently pending before the 12 Court is Boone-Sharp’s motion for summary judgment. (ECF Nos. 32, 34.)2 On April 20, 13 2023, the Court gave Perry notice of Boone-Sharp’s motion pursuant to the requirements 14 of Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), and Rand v. Rowland, 154 F.3d 15 952 (9th Cir. 1998). (ECF No. 36.) Despite the Court sua sponte granting an extension of 16 time, (ECF No. 39), Perry has failed to file an opposition to the motion. For the reasons 17 stated below, the Court grants Boone-Sharp’s motion for summary judgment, (ECF No. 18 32). 19 I. BACKGROUND 20 A. Procedural History 21 Perry is an inmate currently in the custody of the Nevada Department of Corrections 22 (“NDOC”) and is currently housed at the Ely State Prison (“ESP”). (ECF No. 4.) On May 23 2, 2022, proceeding pro se, Perry filed an inmate civil rights complaint pursuant to 42 24 25 26 1 The parties have voluntarily consented to have this case referred to the undersigned to conduct all proceedings and entry of a final judgment in accordance with 27 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (ECF No. 29.) 28 1 U.S.C. § 1983, (“Complaint”). (ECF No. 1-1.) Perry’s Complaint alleges the following: On 2 September 26, 2020, Boone-Sharp called three members of the CERT team to persuade 3 him to close his food flap. (ECF No. 4 at 4.) Although Perry had “captur[ed]” the food flap 4 by placing his arm through it, he did not pose a threat of physical harm because his arm 5 was “fully encased” within the red box surrounding the flap. (Id. at 4, 6.) Nevertheless, as 6 Perry was seeking a “verbal resolution” with the CERT team, Boone-Sharp snuck up to 7 the cell door and, with a “winding up motion,” slammed the red box’s metal slide onto 8 Perry’s hand. (Id. at 5, 8.) The slide “cut[ ] into” the hand, causing bleeding and lacerations. 9 (Id. at 5.) Perry later received “antibiotic ointment and medications for pain and swelling.” 10 (Id.) 11 The Complaint also alleges that Perry engaged in protected activity on September 12 20, 2020, by filing an emergency grievance about Boone-Sharp’s “sexual comments.” (Id. 13 at 3, 10.) Four days later, Boone-Sharp allegedly called Perry a “snitch” in front of other 14 inmates on the tier. (Id. at 4, 10.) Perry also alleges that, six days after he filed the 15 emergency grievance (and two days after he filed a second emergency grievance against 16 Boone-Sharp), Boone-Sharp slammed a metal slide onto his hand, which is the incident 17 referenced to in the excessive force claim. (Id. at 4.) 18 The Complaint was screened in accordance with 28 U.S.C. § 1915A(a). (ECF No. 19 3.) Based on the above allegations, the Court allowed Perry to proceed on an excessive 20 force claim and a retaliation claim against Defendant Boone-Sharp. (Id.) 21 On August 9, 2023, Boone-Sharp filed the instant motion for summary judgment 22 arguing (1) Perry failed to exhaust his administrative remedies as to the retaliation claim; 23 (2) Perry cannot establish the elements of his retaliation claim; and (3) Boone-Sharp did 24 not use excessive force. (ECF No. 32.) Perry did not oppose. 25 B. Undisputed Facts re: Summary Judgment 26 The following undisputed facts as presented by Defendant are as follows: 27 According to an investigation detail report, on September 26, 2020, at approximately 9:45 28 a.m., Officer Boone-Sharp was working her assigned post in the infirmary. (ECF No. 32-3 1 at 3.) Perry had a Red Box security restraint attached to the food slot on his cell door. (Id.) 2 ESP has a security restraint policy that is followed when it is necessary to restrain an 3 inmate—Operation Procedure (“OP”) 407. (ECF No. 32-2.) Pursuant to OP 407, attaching 4 a Red Box security restraint to the food slot on a cell door is part of this policy. (Id. at 8-9.) 5 A Red Box’s purpose is to assist and protect correctional officers when serving food to an 6 inmate through the food slot or when delivering an item to an inmate. (Id.) 7 During the incident in question, Perry’s Red Box was captured from breakfast time 8 because Perry was upset that Boone-Sharp had given him a diet loaf at breakfast. (ECF 9 No. 32-3 at 3.) Correctional Officers Guzman, Ariziga, and Brown were talking to Perry 10 and Boone-Sharp approached Perry’s cell and noticed the Red Box was still open. (Id.) 11 OP 407 required the Red Box security restraint to be closed unless something was being 12 delivered to him. (ECF No. 32-2 at 8-9.) Boone-Sharp attempted to close the slide, but 13 Perry put his hand in the Red Box and forced the slide back at Boone-Sharp. (ECF No. 14 32-3 at 3.) This caused Boone-Sharp’s wrist to “jar” and her elbow to slam back into the 15 handle of the next cell. (Id.) 16 Following the incident, Officer Jose Guzman Jr., took photographs of Perry’s right 17 hand. (ECF No. 32-4.) Later that afternoon, medical staff saw Perry and he told medical 18 staff that he cut his hand on the food slot. (ECF No. 34-3 at 2 (sealed).) Perry stated that 19 it was “not painful,” but that he had some “mild swelling.” (Id.) Medical staff noted a 20 superficial cut on the top of Perry’s right hand but noted no active bleeding and no sign of 21 infection. (Id.) For treatment, Perry received antibiotic ointment and ibuprofen. (Id.) In 22 November 2020, Perry spoke again with medical staff about his right hand. Medical staff 23 noted that Perry was able to make a fist with his right hand, and that there was no visible 24 swelling, and Perry was provided ibuprofen. (ECF No. 34-4 (sealed).) On October 13, 25 2021, medical staff again saw Perry for right hand, but Perry refused to have x-rays taken. 26 (ECF No. 34-5 (sealed).) 27 In support of the motion for summary judgment, Boone-Sharp submitted an 28 affidavit, which stated that she would not have attempted to close the Red Box if she knew 1 Perry’s hand would stop the Red Box from closing. (ECF No. 32-12 at 3.) Boone-Sharp 2 stated she did not intend to cause Perry any harm when she attempted to close the Red 3 Box and she did not see Perry’s hand when she attempted to close the Red Box security 4 restraint attached to the food slot on Perry’s cell. (Id.) Boone-Sharp was only attempting 5 to comply with the requirements of OP 407. (Id.) Boone-Sharp viewed this event as an 6 accident and did not intend to harm Perry, and she is “sorry that it happened.” (Id.) 7 According to Perry’s Inmate Disciplinary History Report, Perry has a long 8 disciplinary history, including several charges related to “propelling” based on throwing 9 substances from his cell. These incidents occurred on at least the following dates: March 10 9, 2010, January 11, 2020, February 9, 2020, July 8, 2020, and July 11, 2020. (ECF No. 11 32-7.) Perry also “captured” his food slot on several occasions resulting in disciplinary 12 charges on at least the following dates: February 22, 2008, April 29, 2009, January 11, 13 2020, February 19, 2020, March 15, 2020, May 16, 2020, July 8, 2020, July 11, 2020, 14 September 10, 2020, September 15, 2020, and September 25, 2020. (Id.) 15 On September 20, 2020, Perry filed an emergency grievance, #2006-31-08365, 16 against Officer Boone-Sharp. (ECF No. 32-5; 32-8 at 23.) Perry stated he had a PREA 17 complaint against Boone-Sharp. (ECF No. 32-8 at 23.) The grievance was denied as not 18 an emergency, and it does not appear Perry filed any further grievances related to this 19 issue. (Id.) 20 On September 24, 2020, Perry filed an emergency grievance, #2006-31-08367, 21 against Officer Boone-Sharp. (ECF No. 32-6; ECF No. 32-8 at 22.) The grievance was 22 denied as not an emergency. (Id.) Perry then filed an informal grievance regarding the 23 excessive force incident, #2006-31-08464. (ECF No. 32-8 at 21.) Perry stated Boone- 24 Sharp deliberately slammed his right hand inside his Red Box. (Id.) The response at the 25 First Level from Warden William Gittere stated in relevant part: 26 A formal Use of Force Review was completed following your allegations related to that incident and submitted for my review before being forwarded 27 to the Deputy Director of Operations and the Inspector General's Office for their final review. 28 1 Based on my review of video related to the incident, reports submitted by participants and witness[es], and subsequent interviews of staff members 2 and inmates who participated or witnessed the incident, no officer misconduct was identified. Per those reports, you admitted to reaching in 3 and pushing the inner slide door of the food slot isolation box back 4 open when Officer Boone-Sharp attempted to close it while you were speaking to other officers. 5 The force that you used to push the slide back open actually caused Officer 6 Boone-Sharp to hit her elbow against the opposite door. Your actions were the cause of any injuries that you sustained. When you informed officers that 7 you had been allegedly injured, you were assessed and offered treatment 8 by medical staff. 9 My assessment of this incident was that it was not a use of force at all. An officer attempted to secure a door on a food slot isolation box when it was 10 clear to do so. You stuck your hand in the way and shoved the door open, allegedly causing minor injury to yourself. You are lucky that the 11 officer was not more seriously injured, and are advised to never do that 12 again. Your remedies are noted and rejected. 13 (Id. at 22 (emphasis added).) 14 II. LEGAL STANDARDS “The court shall grant summary judgment if the movant shows that there is no 15 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 16 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The 17 substantive law applicable to the claim determines which facts are material. Coles v. 18 Eagle, 704 F.3d 624, 628 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 19 248 (1986)). Only disputes over facts that address the main legal question of the suit can 20 preclude summary judgment, and factual disputes that are irrelevant are not material. 21 Frlekin v. Apple, Inc., 979 F.3d 639, 644 (9th Cir. 2020). A dispute is “genuine” only where 22 a reasonable jury could find for the nonmoving party. Anderson, 477 U.S. at 248. 23 The parties subject to a motion for summary judgment must: (1) cite facts from the 24 record, including but not limited to depositions, documents, and declarations, and then (2) 25 “show[] that the materials cited do not establish the absence or presence of a genuine 26 dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 27 Fed. R. Civ. P. 56(c)(1). Documents submitted during summary judgment must be 28 1 authenticated, and if only personal knowledge authenticates a document (i.e., even a 2 review of the contents of the document would not prove that it is authentic), an affidavit 3 attesting to its authenticity must be attached to the submitted document. Las Vegas Sands, 4 LLC v. Neheme, 632 F.3d 526, 532-33 (9th Cir. 2011). Conclusory statements, speculative 5 opinions, pleading allegations, or other assertions uncorroborated by facts are insufficient 6 to establish the absence or presence of a genuine dispute. Soremekun v. Thrifty Payless, 7 Inc., 509 F.3d 978, 984 (9th Cir. 2007). 8 The moving party bears the initial burden of demonstrating an absence of a genuine 9 dispute. Soremekun, 509 F.3d at 984. “Where the moving party will have the burden of 10 proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable 11 trier of fact could find other than for the moving party.” Soremekun, 509 F.3d at 984. 12 However, if the moving party does not bear the burden of proof at trial, the moving party 13 may meet their initial burden by demonstrating either: (1) there is an absence of evidence 14 to support an essential element of the nonmoving party’s claim or claims; or (2) submitting 15 admissible evidence that establishes the record forecloses the possibility of a reasonable 16 jury finding in favor of the nonmoving party. See Pakootas v. Teck Cominco Metals, Ltd., 17 905 F.3d 565, 593-94 (9th Cir. 2018); Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 18 1099, 1102 (9th Cir. 2000). The court views all evidence and any inferences arising 19 therefrom in the light most favorable to the nonmoving party. Colwell v. Bannister, 763 20 F.3d 1060, 1065 (9th Cir. 2014). If the moving party does not meet its burden for summary 21 judgment, the nonmoving party is not required to provide evidentiary materials to oppose 22 the motion, and the court will deny summary judgment. Celotex, 477 U.S. at 322-23. 23 Where the moving party has met its burden, however, the burden shifts to the 24 nonmoving party to establish that a genuine issue of material fact actually exists. 25 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, (1986). The 26 nonmoving must “go beyond the pleadings” to meet this burden. Pac. Gulf Shipping Co. 27 v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir. 2021) (internal quotation 28 omitted). In other words, the nonmoving party may not simply rely upon the allegations or 1 denials of its pleadings; rather, they must tender evidence of specific facts in the form of 2 affidavits, and/or admissible discovery material in support of its contention that such a 3 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n. 11. This burden 4 is “not a light one,” and requires the nonmoving party to “show more than the mere 5 existence of a scintilla of evidence.” Id. (quoting In re Oracle Corp. Sec. Litig., 627 F.3d 6 376, 387 (9th Cir. 2010)). The non-moving party “must come forth with evidence from 7 which a jury could reasonably render a verdict in the non-moving party’s favor.” Pac. Gulf 8 Shipping Co., 992 F.3d at 898 (quoting Oracle Corp. Sec. Litig., 627 F.3d at 387). Mere 9 assertions and “metaphysical doubt as to the material facts” will not defeat a properly 10 supported and meritorious summary judgment motion. Matsushita Elec. Indus. Co. v. 11 Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). 12 When a pro se litigant opposes summary judgment, his or her contentions in 13 motions and pleadings may be considered as evidence to meet the non-party’s burden to 14 the extent: (1) contents of the document are based on personal knowledge, (2) they set 15 forth facts that would be admissible into evidence, and (3) the litigant attested under 16 penalty of perjury that they were true and correct. Jones v. Blanas, 393 F.3d 918, 923 17 (9th Cir. 2004). 18 Upon the parties meeting their respective burdens for the motion for summary 19 judgment, the court determines whether reasonable minds could differ when interpreting 20 the record; the court does not weigh the evidence or determine its truth. Velazquez v. City 21 of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015). The court may consider evidence in 22 the record not cited by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3). 23 Nevertheless, the court will view the cited records before it and will not mine the record for 24 triable issues of fact. Oracle Corp. Sec. Litig., 627 F.3d at 386 (if a nonmoving party does 25 not make nor provide support for a possible objection, the court will likewise not consider 26 it). 27 /// 28 /// 1 III. DISCUSSION 2 A. Excessive Force 3 The Eighth Amendment’s proscription on cruel and unusual punishment forbids 4 prison officials from inflicting “the unnecessary and wanton infliction of pain . . ..” Whitley 5 v. Albers, 475 U.S. 312, 319 (1986). Encompassed within the Eighth Amendment is a bar 6 on the use of excessive force against prisoners. See Hudson v. McMillian, 503 U.S. 1, 7- 7 10 (1992). Courts in the Ninth Circuit apply a five-part balancing test to excessive force 8 claims: (1) the extent of the inmate’s injuries; (2) the need for application of force; (3) the 9 relationship between the need and amount of force; (4) the threat reasonably perceived 10 by prison officials; and (5) any efforts that officials utilized to “‘temper the severity of a 11 forceful response.’” Id. at 7 (quoting Whitley, 475 U.S. at 321); see also Wilkins v. Gaddy, 12 559 U.S. 34, 36-38 (2010); Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 13 The inmate must demonstrate that officials acted maliciously and sadistically to 14 prevail. “[W]henever prison officials stand accused of using excessive physical force in 15 violation of the [Eighth Amendment], the core judicial inquiry is . . . whether force was 16 applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically 17 to cause harm.” Hudson, 503 U.S. at 6-7. As the Ninth Circuit has explained, 18 [t]he “malicious and sadistic” standard arose out of “the need to maintain or restore discipline” inside the prison. When a prison disturbance occurs, 19 prison officials must make “decisions ‘in haste, under pressure, and frequently without the luxury of a second chance.’” In these situations, prison 20 officials are “accorded wide-ranging deference” and therefore, prisoners 21 alleging excessive force must show that the force was applied “maliciously and sadistically to cause harm.” 22 23 Wood v. Beauclair, 692 F.3d 1041, 1049-50 (9th Cir. 2012) (quoting Hudson, 503 U.S. at 24 6 and Whitley, 475 U.S. at 320). Thus, the Court must be careful when reviewing the 25 factors to verify indicia of “such wantonness with respect to the unjustified infliction of harm 26 as [is] tantamount to a knowing willingness that it occur.” Hudson, 503 U.S. at 9. Moreover, 27 there is no need for a showing of serious injury as a result of the force, but the lack of such 28 1 injury is relevant to the inquiry. See id. at 7-9; Martinez, 323 F.3d at 1184; Schwenk v. 2 Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000). 3 The Court will first address the merits of Perry’s excessive force claim. Excessive 4 force cases “nearly always requires a jury to sift through disputed factual contentions, and 5 to draw inferences therefrom,” and for this reason, the Ninth Circuit has “held on many 6 occasions that summary judgment or judgment as a matter of law in excessive force cases 7 should be granted sparingly.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002); see also 8 Lolli v. Cnty. of Orange, 351 F.3d 410, 415–16 (9th Cir. 2003); Liston v. Cnty. of Riverside, 9 120 F.3d 965, 976 n. 10 (9th Cir. 1997) (citing cases). 10 In the motion for summary judgment, Boone-Sharp contends that balancing the 11 Hudson factors weighs in favor of Boone-Sharp being granted summary judgment on the 12 excessive use of force claim. (ECF No. 32 at 11-15.) She contends that Perry’s alleged 13 injury was minimal even if caused by Boone-Sharp, the incident was nothing more than 14 an accident, and as no force was directed at Perry. (Id.) 15 As discussed above, the undisputed facts, uncontradicted by Perry, are as follows. 16 According to an investigation detail report, on September 26, 2020, at approximately 9:45 17 a.m., Officer Boone-Sharp was working her assigned post in the infirmary. (ECF No. 32-3 18 at 3.) Perry had a Red Box security restraint attached to the food slot on his cell door. (Id.) 19 During the incident in question, Perry’s Red Box was captured from breakfast time 20 because Perry was upset that Boone-Sharp had given him a diet loaf at breakfast. (Id.) 21 Correctional Officers Guzman, Ariziga, and Brown were talking to Perry and Boone-Sharp 22 approached Perry’s cell and noticed the Red Box was still open. (Id.) Boone-Sharp 23 attempted to close the slide, but Perry put his hand in the Red Box and forced the slide 24 back at Boone-Sharp. (Id.) This caused Boone-Sharp’s wrist to “jar” and her elbow to slam 25 back into the handle of the next cell. (Id.) 26 Following the incident, Officer Jose Guzman Jr., took photographs of Perry’s right 27 hand. (ECF No. 32-4.) Later that afternoon, medical staff saw Perry and he told medical 28 staff that he cut his hand on the food slot. (ECF No. 34-3 at 2 (sealed).) Perry stated that 1 it was “not painful,” but that he had some “mild swelling.” (Id.) Medical staff noted a 2 superficial cut on the top of Perry’s right hand but noted no active bleeding and no sign of 3 infection. (Id.) For treatment, Perry received antibiotic ointment and ibuprofen. (Id.) In 4 November 2020, Perry spoke again with medical staff about his right hand. Medical staff 5 noted that Perry was able to make a fist with his right hand, and that there was no visible 6 swelling, and Perry was provided ibuprofen. (ECF No. 34-4 (sealed).) On October 13, 7 2021, medical staff again saw Perry for right hand, but Perry refused to have x-rays taken. 8 (ECF No. 34-5 (sealed).) 9 In support of the motion for summary judgment, Boone-Sharp submitted an 10 affidavit, which stated that she would not have attempted to close the Red Box if she knew 11 Perry’s hand would stop the Red Box from closing. (ECF No. 32-12 at 3.) Boone-Sharp 12 stated she did not intend to cause Perry any harm when she attempted to close the Red 13 Box and she did not see Perry’s hand when she attempted to close the Red Box security 14 restraint attached to the food slot on Perry’s cell. (Id.) Boone-Sharp was only attempting 15 to comply with the requirements of OP 407. (Id.) Boone-Sharp viewed this event as an 16 accident and did not intend to harm Perry, and she is “sorry that it happened.” (Id.) 17 The response to Perry’s grievance related to the incident showed that no officer 18 misconduct was identified, and Perry admitted to reaching in and pushing the inner slide 19 door of the food slot isolation box back open when Boone-Sharp was attempting to close 20 it. (ECF No. 32-8 at 22.) 21 Here, the Court finds that the majority of the evidence supports Boone-Sharp’s 22 assertion that the incident in question was merely an accident. Nonetheless, based on the 23 undisputed evidence, all five Hudson factors still objectively weigh against finding an 24 Eighth Amendment violation. See Hudson, 503 U.S. at 6-7. First, using force generally 25 was necessary. Perry implicitly threatened Boone-Sharp when he stuck his hand out of 26 his food slot, especially in light of Perry’s long disciplinary history. 27 Second, the amount of force used was proportional to the need. Boone-Sharp used 28 minimal force to close the Red Box and the evidence shows she did not knowingly or 1 intentionally close the door on Perry’s hand. There is no evidence that Boone-Sharp used 2 other, greater force to accomplish this. Thus, the force used was objectively minimal and 3 proportional to the need to maintain security by closing the Red Box. Third, Perry’s injuries 4 were minimal, if not de minimis. Thus, both the force Boone-Sharp used and Perry’s 5 injuries were insignificant here. 6 Next, the threat Boone-Sharp reasonably perceived was significant. As discussed 7 above, Perry had an extensive disciplinary history, which warranted the placement of the 8 Red Box to begin with. Thus, when Perry failed to keep himself free of the food slot, a 9 reasonable officer would have felt threatened. Finally, Perry seems to have acknowledged 10 that he reached in and pushed the inner slide of his door open when Boone-Sharp was 11 attempting to close it, resulting in him injuring himself. 12 Based on the evidence before the Court, all five of the relevant Hudson factors 13 weigh in favor of finding that Boone-Sharp did not use excessive force. There is no dispute 14 as to the minimal amount of force used, the circumstances under which it was applied, 15 and the minimal injuries to Perry as a result of the minimal force. As such, there is no 16 genuine issue of material fact as to the merits of the excessive force claim. Perry does 17 not, and cannot, show that Boone-Sharp applied force maliciously and sadistically to 18 cause harm rather than in a good-faith effort to maintain or restore discipline. See Hudson, 19 503 U.S. at 6. To the contrary, Boone-Sharp applied a minimal amount of force necessary 20 in a good-faith effort to maintain order, and it was not done maliciously or sadistically to 21 cause harm. Accordingly, the Court recommends Boone-Sharp’s motion for summary 22 judgment be granted as to the excessive force claim. 23 B. Retaliation 24 Next, the Court addresses the merits of Perry’s retaliation claim. Perry’s retaliation 25 claim is premised upon allegations that Perry engaged in protected activity on September 26 20, 2020, by filing an emergency grievance about Boone-Sharp’s “sexual comments.” 27 (ECF No. 4 at 3, 10.) Four days later, Boone-Sharp allegedly called Perry a “snitch” in 28 front of other inmates on the tier. (Id. at 4, 10.) Perry also alleges that, six days after he 1 filed the emergency grievance (and two days after he filed a second emergency grievance 2 against Boone-Sharp), Boone-Sharp slammed a metal slide onto his hand, which is the 3 incident referenced to in the excessive force claim. (Id. at 4.) 4 It is well established in the Ninth Circuit that prisoners may seek redress for 5 retaliatory conduct by prison officials under § 1983. Rhodes v. Robinson, 408 F.3d 559, 6 567 (9th Cir. 2004); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). “Prisoners have 7 a First Amendment right to file grievances against prison officials and be free from 8 retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). 9 “A prison inmate retains those First Amendment rights that are not inconsistent with 10 his status as a prisoner or with the legitimate penological objectives of the corrections 11 system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). Within the prison context, a viable 12 retaliation claim has five elements: (1) a state actor took some adverse action against the 13 inmate, (2) because of, (3) the inmate’s protected conduct, and that the action, (4) chilled 14 the inmate’s exercise of his First Amendment rights, and (5) did not reasonably advance 15 a legitimate correctional goal. Rhodes, 408 F.3d at 567–68. The adverse action must be 16 such that it “would chill or silence a person of ordinary firmness from future First 17 Amendment activities.” Watison, 668 F.3d at 1114 (quoting Rhodes, 408 F.3d at 568). 18 To prevail against Defendants’ motion for summary judgment, Plaintiff must 19 demonstrate a triable issue of material fact on each element of his retaliation claim. 20 Brodheim, 584 F.3d at 1269 n.3. An inmate must submit evidence, either direct or 21 circumstantial, to establish a link between the exercise of constitutional rights and the 22 allegedly retaliatory action. Pratt v. Rowland, 65 F.3d 802, 806-07 (9th Cir. 1995). “[A] 23 plaintiff must show that his protected conduct was ‘the “substantial” or “motivating” factor 24 behind the defendant's conduct.’” Brodheim, 584 F.3d at 1271 (quoting Sorrano’s Gasco, 25 Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)). The plaintiff “need only ‘put forth 26 evidence of retaliatory motive, that, taken in the light most favorable to him, presents a 27 genuine issue of material fact as to [the defendant's] intent.’” Id. (quoting Bruce v. YIst, 351 28 F.3d 1283, 1289 (9th Cir. 2003)).   1 To raise a triable issue as to motive, plaintiff must offer “either direct evidence of 2 retaliatory motive or at least one of three general types of circumstantial evidence [of that 3 motive].” McCollum v. Cal. Dep’t of Corr. and Rehab., 647 F.3d 870, 882 (9th Cir. 2011) 4 (citation and quotation marks omitted). Circumstantial motive evidence may include: “(1) 5 proximity in time between protected speech and the alleged retaliation; (2) [that] the 6 [defendant] expressed opposition to the speech; [or] (3) other evidence that the reasons 7 proffered by the [defendant] for the adverse ... action were false and 8 pretextual.” Id. (internal citation and quotation marks omitted). However, “mere speculation 9 that defendants acted out of retaliation is not sufficient.” Wood v. Yordy, 905 (9th Cir. 10 2014). 11 Boone-Sharp contends Perry cannot prevail on his retaliation claim as there is no 12 evidence Boone-Sharp knew of the emergency grievances and because of this called him 13 a snitch or closed his hand in the Red Box. (ECF No. 32.) The Court agrees. Based on 14 the evidence in the record, there is no causal connection between the alleged retaliatory 15 acts and the filing of grievances. Further, Perry’s mere speculation that there is a causal 16 connection is not enough to raise a genuine issue of material fact. Nelson v. Pima 17 Community College, 83 F.3d 1075, 1081-82 (9th Cir. 1996). Because Perry did not file an 18 opposition to the motion for summary judgment, he has not presented any evidence to the 19 Court showing that his First Amendment activity was the substantial or motivating factor 20 behind Boone-Sharp’s actions, and, therefore, he has not carried his burden of 21 demonstrating a genuine issue for trial. As no reasonable jury could conclude that the 22 alleged retaliatory acts occurred because of the filing of grievances, Boone-Sharp is 23 entitled to summary judgment.3 Matsushita, 475 U.S. at 586. 24 /// 25 /// 26 27 3 Because the Court has determined that the motion for summary judgment be granted on merits of this claim, it need not address Boone-Sharp’s argument regarding 28 1 || IV. CONCLUSION 2 Consistent with the above, IT IS ORDERED that Boone-Sharp’s motion for 3 || summary judgment, (ECF No. 32), be GRANTED. 4 IT IS FURTHER ORDERED that the Clerk of Court ENTER JUDGMENT 5 || accordingly and CLOSE this case. 6 || DATED: October 24,2023 __. 8 UNITED STATES\MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28