Cleveland et al v. Tucker et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IVAN V. CLEVELAND,
Plaintiff,
v.
TUCKER, et al.,
Defendants.
Case No. 23-cv-05312-JSW
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT
Re: Dkt. No. 41
INTRODUCTION
Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42
U.S.C. § 1983 against W. Tucker, S. Adams, S. Lujano, and Gash, who were employees in the
culinary department of Plaintiff’s prison, the California Training Facility (“CTF”). The motion for
summary judgment by Defendants Tucker, Adams, and Lujano was granted. Now before the
Court is Gash’s motion for summary judgment, which Plaintiff does not oppose. For the reasons
discussed below, Gash’s motion for summary judgment is GRANTED.
DISCUSSION
I. 	Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits show that there
is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of
the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute as to a material
fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the
nonmoving party. Id.
The moving party for summary judgment bears the initial burden of identifying those
portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine
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issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). When the moving
party has met this burden of production, the nonmoving party must go beyond the pleadings and,
by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for
trial. If the nonmoving party fails to produce enough evidence to show a genuine issue of material
fact, the moving party wins. Id. “[S]elf-serving affidavits are cognizable to establish a genuine
issue of material fact so long as they state facts based on personal knowledge and are not too
conclusory.” Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2001).
At summary judgment, the judge must view the evidence in the light most favorable to the
nonmoving party: if evidence produced by the moving party conflicts with evidence produced by
the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving
party with respect to that fact. Tolan v. Cotton, 570 U.S. 650, 656-57 (2014). 	A court may not
disregard direct evidence on the ground that no reasonable jury would believe it. Leslie v. Grupo
ICA, 198 F.3d 1152, 1158 (9th Cir. 1999) (where nonmoving party's direct evidence raises
genuine issues of fact but is called into question by other unsworn testimony, district court may
not grant summary judgment to moving party on ground that direct evidence is unbelievable).
A district court may not grant a motion for summary judgment solely because, as here, the
opposing party has failed to file an opposition. See Cristobal v. Siegel, 26 F.3d 1488, 1494-95 &
n.4 (9th Cir. 1994). A verified complaint, such as the operative complaint (ECF No. 1) here, may
be used as an opposing affidavit under Rule 56 as long as it is based on personal knowledge and
sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 &
nn.10-11 (9th Cir. 1995).
II. 	Analysis
The remaining claim is that Defendant Gash retaliated against Plaintiff for his
administrative grievance against Adams complaining Adams called Plaintiff racist and profane
“names.” “Within the prison context, a viable claim of First Amendment retaliation entails five
basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)
because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s
exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate
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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). The parties do not
dispute that filing administrative grievances constitutes “protected conduct” under the First
Amendment. Id. at 567 (holding a prisoner may not be retaliated against for using such
procedures).
The Order granting the other Defendants’ summary judgment motion explained Plaintiff’s
claims against Gash as follows:
Plaintiff asserts after he complained to Defendant Gash about
Adams’s verbal “abuse,” Gash “failed to intervene” and “laughed it
off,” which allowed Adams’s behavior to continue. The order of
service did not address whether the complaint stated a cognizable
retaliation claim against Defendant Gash. Upon further review of
the complaint, the Court now concludes that, when liberally
construed, it states a cognizable retaliation claim against Defendant
Gash, specifically that Gash failed to intervene in Adams’s behavior
in retaliation for Plaintiff’s grievance against Adams. The evidence
in the record thus far does not appear to create a triable issue on the
causation element of a First Amendment retaliation claim against
Gash.[] However, as Gash has not been served or appeared, and
neither Gash nor Plaintiff have had a full opportunity to brief
whether summary judgment is warranted on this claim, the Court
draws no conclusion at this time on this issue or any of the other
elements of a retaliation claim against Gash. Accordingly, service is
ordered upon Gash below, and a briefing schedule is ordered for a
summary judgment motion on this claim.
(ECF No. 38 at 8:21-9:6) (footnote omitted).
Plaintiff claims Gash retaliated for his grievance against Adams by failing to intervene in
Adams’s purported verbal harassment and by implementing certain work rules for culinary clerks
like Gash. 	It is undisputed that Plaintiff filed his administrative grievance against Adams after
Gash’s allegedly retaliatory conduct. Gash’s conduct cannot have been caused or motivated by a
grievance that had not yet been filed. Consequently, no reasonable fact-finder could determine
from the evidence that Plaintiff’s protected activity was the cause of Gash’s alleged retaliatory
actions. As such a finding is necessary to prove the causation element of Plaintiff’s retaliation
against Gash, there is no triable issue of fact, that if resolved in Plaintiff’s favor, would result in
Plaintiff’s success on this element or claim. Accordingly, Gash is entitled to summary judgment.
CONCLUSION
For the foregoing reasons,
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Gash’s motion for summary judgment is GRANTED. The Clerk shall enter judgment and
close the file.
IT IS SO ORDERED.
Dated: January 23, 2026
JEFFREY S. WHITE
United States District Judge
Case 4:23-cv-05312-JSW Document 42 Filed 01/23/26 Page 4 of 4