Joseph v. Department of Corrections et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SERENA MICHELLE JOSEPH,
Plaintiff,
v.
DEPARTMENT OF CORRECTIONS,
et al.,
Defendants.
Case No. 3:20-cv-00294-SLG-KFR
REPORT AND RECOMMENDATION RE MOTION FOR SUMMARY JUDGMENT
Before the Court is a Motion for Summary Judgment (hereinafter “Motion”)
filed by Defendants Lieutenant Clifton Booher, Correctional Officer Angelina
Fainuulelei, Superintendent Gloria Johnson, Sergeant Ty Johnston, and Sergeant
Steve West.1 Plaintiff Serena Joseph responded in opposition;2 Defendants replied.3
Oral argument on the Motion was not requested and was not necessary for the
Court’s recommendation. Because Plaintiff has failed to produce evidence to create
a genuine issue of material fact that Defendants retaliated against her for filing
prison grievances, Defendants are entitled to qualified immunity on Plaintiff’s
conspiracy claim. Therefore, the Court recommends that the Motion be GRANTED
and that Plaintiff’s conspiracy claim—the only claim remaining in this case—be
DISMISSED with prejudice.
I. 	BACKGROUND
In November 2020, Plaintiff—an inmate at Hiland Mountain Correctional
1 Docs. 58, 59.
2 Doc. 73. Plaintiff filed a Response at Docket 72 and subsequently filed a “Notice of Errata”
at Docket 73 with the “correct [response] memorandum” attached. The Court treats
Plaintiff’s attached memorandum at Docket 73 as the operative Response to the Motion.
3 Doc. 76.
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Center (“Hiland”)—filed a pro se civil rights complaint in this case, asserting claims
pursuant to 42 U.S.C. § 1983 for violations of the First, Fourteenth, and Sixth
Amendments to the U.S. Constitution.4 In her initial Complaint, Plaintiff named as
defendants the Alaska Department of Corrections (“DOC”), Sergeant Anita McCarter,
Deputy Director Sidney Wood, Sergeant Roberta Maseuli, Sergeant Johnston,
Superintendent Johnson, and Officer Fainuulelei.5 In December 2020, Plaintiff filed
an Amended Complaint which added Sergeant West and Lieutenant Booher as
defendants.6 In September 2021, the Court appointed counsel for Plaintiff;7 in
October 2021, through counsel, Plaintiff filed a “Third Amended Complaint” which
added DOC Commissioner Nancy Dahlstrom as a defendant and generally maintained
Plaintiff’s original claims against the previously-named defendants.8
In November 2021, Defendants moved to dismiss the Third Amended
Complaint for failure to state a claim.9 Plaintiff opposed the motion to dismiss
except with respect to her Sixth Amendment claim and her claims against DOC,
Commissioner Dahlstrom, Sergeant McCarter, Director Wood, and Sergeant Maseuli,
which she moved to withdraw.10 The Court recommended dismissal of all claims
except for Count 1, which alleges that Sergeant West, Lieutenant Booher, Sergeant
Johnston, Superintendent Johnson, and Officer Fainuulelei conspired to retaliate
against Plaintiff in violation of the First Amendment.11 The District Court adopted
this recommendation in full and ordered Plaintiff to file either an amended
4 Doc. 1.
5 Id.
6 Doc. 3.
7 Doc. 27.
8 Doc. 32. Plaintiff filed a motion to amend her Amended Complaint while she was still
representing herself. Doc. 25. After Plaintiff and appointed counsel reached a
representation agreement and before the Court ruled on that motion, Plaintiff withdrew the
motion and filed the “Third Amended Complaint.” Doc. 25.
9 Docs. 33; 34.
10 Docs. 40; 41.
11 Docs. 46; 32-6 at 6, ¶ 25.
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complaint or a notice of intent to proceed on the conspiracy claim.12 Plaintiff filed
the latter.13
Plaintiff’s conspiracy claim is based on allegations that Defendants retaliated
against her for filing or attempting to file grievances about staff misconduct.14
Plaintiff’s Third Amended Complaint mentions three specific incidents that led her
to file grievances. First, Plaintiff alleges that in March 2020, Officer Fainuulelei told
Plaintiff to go “get [Plaintiff’s] people” and responded sarcastically when Plaintiff
asked if Officer Fainuulelei meant other Black women.15 Second, Plaintiff alleges
that in May or June 2020, Officer Fainuulelei “forced Plaintiff to move [housing]
units,” and that Plaintiff later learned that she had been moved because she was in
a relationship with another inmate.16 And third, Plaintiff alleges that Sergeant
Johnston interviewed Plaintiff about another grievance she lodged against Officer
Fainuulelei in front of the other inmates in her housing unit.17
Plaintiff suggests that Defendants engaged in various forms of retaliation
against her for raising these complaints. Plaintiff alleges that Officer Fainuulelei
retaliated by: (1) telling one of Plaintiff’s fellow inmates to “teach [Plaintiff] how to
spell [Officer Fainuulelei’s] name”; (2) making a comment that implied that Officer
Fainuulelei considered Plaintiff’s grievance to be “an act of ‘snitching’”; and (3) by
moving Plaintiff to a different cell.18 In addition, Plaintiff alleges that Sergeant
Johnston retaliated against her by conducting the interview about one of her
12 Doc. 47.
13 Doc. 49.
14 Doc. 32 at 6, ¶ 25. The affidavits Plaintiff submitted in support of her Third Amended
Complaint appear to refer to grievances and requests for information (“RFIs”)
interchangeably. See Docs. 42-1; 42-2; 42-3; 42-4; 42-5; 42-6; 42-7; 42-8. Plaintiff also
mentions “letters” that she attempted to give to Superintendent Johnson. Docs. 42-4; 42-7.
Because all of these documents appear to raise or pertain to complaints about prison staff
conduct, the Court refers to them collectively as “grievances.”
15 Docs. 32 at 4, ¶ 15; 42-1 at 1.
16 Doc. 32 at 5, ¶ 19; 42-3 at 1; 42-4 at 1.
17 Docs. 32 at 5, ¶ 20; 42-5; 42-8.
18 Docs. 32 at 4–5, ¶¶ 16, 18–19; 42-2 at 1.
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grievances in a public setting.19 Moreover, Plaintiff alleges that Lieutenant Booher,
Superintendent Johnson, Sergeant Johnston, and Sergeant West retaliated by
ignoring or failing to adequately resolve her grievances.20
In August 2023, Defendants filed the present Motion, requesting summary
judgment on Plaintiff’s conspiracy claim.21 Defendants contend that they are entitled
to summary judgment on three grounds: (1) there was no agreement between
Defendants to not respond to Plaintiff’s grievances, meaning that the conspiracy
claim must fail; (2) Defendants’ actions do not constitute retaliation against Plaintiff
in violation of the First Amendment; and (3) Defendants are entitled to qualified
immunity.22 In support of the Motion, Defendants filed declarations by their counsel,
Officer Fainuulelei, Sergeant West, Superintendent Johnson, Sergeant Johnston, and
Lieutenant Booher.23
In September 2023, Plaintiff responded in opposition.24 Plaintiff asserts that
summary judgment is not appropriate because there remain genuine disputes of
material fact, and that construing those disputed facts in her favor, a reasonable jury
could find that Defendants conspired to retaliate against her.25 Plaintiff further
rejects Defendants’ argument that they are entitled to qualified immunity.26 Plaintiff
submitted no additional evidence in support of her response brief, relying instead
on selected portions of her Third Amended Complaint and the evidence Defendants
filed with the Motion.27
19 Docs. 32 at 5, ¶ 20; 73 at 13.
20 Doc. 32 at 4–5, ¶¶ 15–20.
21 Doc. 59.
22 Id. at 18–19.
23 Docs. 60–66.
24 Doc. 73.
25 Id. at 12–15.
26 Doc. 73 at 15–16.
27 Plaintiff’s Third Amended Complaint “incorporates the attachments and exhibits included
with her original Complaint.” Doc. 32 at 2. Plaintiff filed 10 affidavits and 12 exhibits in
support of the conspiracy claim she alleged in her initial Complaint. Doc. 42. For purposes
of summary judgment, the Court will consider facts alleged in Plaintiff’s Third Amended
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In November 2023, the Court issued an order directing Plaintiff to refile her
response to the Motion, noting the lack of additional evidence accompanying her
briefing.28 The Court set a deadline by which to refile and warned that failure to
produce evidence could “result in the Court considering Defendants’ properly
supported facts undisputed and ruling on the motion accordingly.”29 Plaintiff did
not meet this deadline; as a result, the Court took the Motion under advisement on
the existing briefing.30 As of the date of this Report and Recommendation, Plaintiff
had not refiled her response or explained why she had not done so.
II. 	LEGAL STANDARD
Summary judgment is appropriate when a “movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” 31 A fact is “material” if it might affect the outcome of the case under
the governing law.32 A dispute is “genuine” as to a material fact if there is sufficient
evidence for a reasonable fact-finder to decide in favor of the nonmoving party.33 In
determining whether a genuine dispute of material fact exists, the court views the
evidence in the light most favorable to the nonmoving party, and draws all
Complaint, but only those that are based on Plaintiff’s personal knowledge, that are
supported by her sworn testimony, and that could be presented in an admissible form at
trial. See Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (“A verified complaint may
be treated as an affidavit to the extent that the complaint is based on personal knowledge
and sets forth facts admissible in evidence and to which the affiant is competent to testify.”);
Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003) (choosing to consider a diary’s
contents when evaluating a summary judgment motion because those contents “could be
presented in an admissible form at trial”); see also Fed. R. Civ. P. 56(c)(3)–(4).
28 Doc. 77.
29 Id. at 1–2.
30 Since Plaintiff is represented by counsel and should have been aware of the need to follow
this deadline or to move for an extension of time if one was necessary, the Court declined to
remind Plaintiff of its order to refile after the deadline passed.
31 Fed. R. Civ. P. 56(a).
32 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986) (“Only disputes over facts
that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.”).
33 Id. at 248.
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reasonable inferences in favor of that party.34
The party moving for summary judgment bears the ultimate burden of
persuasion and the initial burden of producing evidence that shows the absence of a
genuine issue of material fact.35 Where the moving party would not bear the burden
of proof at trial, that party “must either produce evidence negating an essential
element of the nonmoving party’s claim or defense or show that the nonmoving party
does not have enough evidence of an essential element to carry its ultimate burden
of persuasion at trial.”36 “If a moving party fails to carry its initial burden of
production, the nonmoving party has no obligation to produce anything.”37
If a moving party successfully carries its burden of production, however, the
nonmoving party “must produce evidence to support its claim or defense.”38 It is
not the task of the court to “scour the record in search of a genuine issue of triable
fact.”39 Rather, the nonmoving party must “identify with reasonable particularity
the evidence that precludes summary judgment.”40 “If the nonmoving party fails to
produce enough evidence to create a genuine issue of material fact, the moving party
wins the motion for summary judgment.”41
III. DISCUSSION
Plaintiff brings her claims under 42 U.S.C. § 1983, which provides that
[e]very person who, under color of [State
law] . . . subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
34 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986); E.E.O.C.
v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009).
35 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
36 Nissan Fire & Marine Ins. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).
37 Id. at 1102–03.
38 Id. at 1103.
39 Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotation marks omitted)
(quoting Richards v. Combined Ins., 55 F.3d 247, 251 (7th Cir. 1995)).
40 Id. (quoting Richards, 55 F.3d at 251).
41 Nissan Fire & Marine Ins., 210 F.3d at 1102.
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liable to the party injured . . . .
To prevail on a § 1983 claim, a plaintiff must establish two “essential elements: (1)
that a right secured by the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person acting under the color
of State law.”42
Plaintiff’s sole remaining claim is that Defendants conspired to retaliate
against her for exercising her First Amendment right to file prison grievances.43 A
§ 1983 conspiracy claim has two elements: (1) the existence of an agreement or
“meeting of the minds” between the defendants to deprive the plaintiff of a
constitutional right; and (2) an actual deprivation of that right resulting from the
agreement.44 To satisfy this second element, a plaintiff must demonstrate “an
underlying constitutional violation” because “[c]onspiracy is not itself a
constitutional tort under § 1983.”45
Government officials sued under § 1983 may raise the affirmative defense of
qualified immunity, as Defendants do here.46 Qualified immunity shields
government officials from civil liability under § 1983 if “their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.”47 To determine whether an official is entitled to
qualified immunity, a court considers two questions: “(1) whether there has been a
violation of a constitutional right; and (2) whether that right was clearly established
42 West v. Atkins, 487 U.S 42, 48 (1988).
43 Doc. 32 at 6–7, ¶¶ 24–25.
44 Ting v. United States, 927 F.2d 1504, 1512 (9th Cir. 1991).
45 Lacey v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012).
46 Tan Lam v. City of Los Banos, 976 F.3d 986, 997 (9th Cir. 2020) (“Qualified immunity is
an affirmative defense that the government has the burden of pleading and proving.”
(internal quotation marks omitted) (quoting Frudden v. Pilling, 877 F.3d 821, 831 (9th Cir.
2017))).
47 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Pearson v. Callahan, 555 U.S. 223,
231 (2009) (“Qualified immunity balances two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably.”).
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at the time of the officer’s alleged misconduct.”48 Qualified immunity applies unless
both prongs of the inquiry are satisfied.49 A court may analyze these questions in
any order, though it “is often beneficial” to begin with the first prong because this
process “promotes the development of constitutional precedent and is especially
valuable with respect to questions that do not frequently arise in cases in which a
qualified immunity defense is unavailable.”50
With this guidance in mind, the Court begins the qualified immunity analysis
with the first prong. Construing the evidence and inferences in the light most
favorable to Plaintiff, Defendants have shown that there is no genuine dispute that
they did not unconstitutionally retaliate against Plaintiff for exercising her right to
file prison grievances. Therefore, Plaintiff’s conspiracy claim fails because it lacks
an underlying constitutional violation, and Defendants are accordingly entitled to
qualified immunity.
A. Defendants Did Not Unconstitutionally Retaliate Against Plaintiff.
The First Amendment guarantees “the right of the people . . . to petition the
government for a redress of grievances.”51 In the prison context, the right to petition
the government includes an inmate’s right to seek redress of grievances from prison
authorities.52 An inmate may sue under § 1983 when their exercise of this First
Amendment right “result[s] in retaliatory action by prison officials.”53 To establish
48 Est. of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1005 (9th Cir. 2017) (quoting Lal v.
California, 746 F.3d 1112, 1116 (9th Cir. 2014)).
49 See Pearson, 555 U.S. at 232.
50 Id. at 236.
51 U.S. Const. amend. I.
52 See Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015); Entler v. Gregoire, 872 F.3d
1031, 1039 (9th Cir. 2017) (observing that the First Amendment right to file prison
grievances is the “most fundamental of the constitutional protections that prisoners
retain”).
53 Jones, 791 F.3d at 1035. In the Ninth Circuit, it is not entirely clear whether a “direct”
claim for violation of the right to petition for grievances exists or whether the only
actionable right to petition claim is an “indirect” claim that sounds in retaliation. See
Williams v. Fox, No. 1:16-cv-00143-DCN, 2022 WL 17659688, at *3–7 (D. Idaho Nov. 28,
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a § 1983 claim of retaliation for engaging in activity protected by the First
Amendment in the prison context, a plaintiff must show: “(1) . . . 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 [their]
First Amendment rights, and (5) the action did not reasonably advance a legitimate
correctional goal.”54
Plaintiff alleges that Defendants retaliated against her for exercising her right
to petition by filing or attempting to file grievances.55 First, Plaintiff alleges that
Officer Fainuulelei retaliated by making a hostile comment about Plaintiff’s first
grievance against her on two separate occasions, and by moving Plaintiff to a
different cell.56 Second, Plaintiff alleges that Sergeant Johnston retaliated by
addressing one of her grievances in front of other inmates.57 And third, Plaintiff
alleges that Lieutenant Booher, Superintendent Johnson, Sergeant Johnston, and
Sergeant West retaliated by ignoring or failing to adequately resolve several
grievances she filed.58 Defendants argue that none of this alleged conduct
constitutes retaliation.59 The Court addresses each of these three bases for Plaintiff’s
underlying retaliation claim in turn.
1. Officer Fainuulelei did not retaliate against Plaintiff by
commenting on her first grievance or by moving her to a
different cell in the same housing unit.
The allegations in Plaintiff’s Third Amended Complaint that pertain to Officer
2022) (explaining uncertainty and listing bases for concluding that there is no direct right
to petition claim); Richey v. Dahne, 733 F. App’x 881, 883–84 (9th Cir. 2018) (addressing
separately prisoner’s claim for violation of his First Amendment right to petition and claim
for retaliation for exercising his rights under the First Amendment, where both claims were
based on the defendant’s refusal to allow a grievance to proceed). In any event, because
Plaintiff’s conspiracy claim appears to be premised solely on an underlying retaliation claim,
the Court evaluates only that underlying claim. See Docs. 32 at 6, ¶ 25; 73 at 12–15.
54 Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).
55 Doc. 32 at 6, ¶ 25.
56 Id. at 4–5, ¶¶ 16–17, 19–20.
57 Docs. 32 at 5, ¶ 20; 73 at 13.
58 Doc. 32 at 4–5, ¶¶ 15–20.
59 Doc. 59 at 18–19.
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Fainuulelei are as follows. First, Plaintiff alleges that after she filed her first
grievance against Officer Fainuulelei in March 2020, Officer Fainuulelei told one of
Plaintiff’s fellow inmates to “teach [Plaintiff] how to spell [Officer Fainuulelei’s]
name.”60 Second, Plaintiff alleges that while Officer Fainuulelei was attempting to
break up an argument between two inmates in April 2020, Officer Fainuulelei
“noticed” Plaintiff in the room and said, “If you bitches don’t stop I’m going to
separate y’all and I don’t care if y’all tell on me cause y’all some ‘snitches’ in here
anyways.”61 Plaintiff suggests that this statement “insinuat[es] that [Officer
Fainuulelei] considered Plaintiff’s grievance an act of ‘snitching.’”62 And third,
Plaintiff alleges that Officer Fainuulelei “forced Plaintiff to move units” in May or
June 2020, with Plaintiff later learning that the move was due to information that
Plaintiff was in a relationship with another inmate.63
Defendants argue that Officer Fainuulelei’s actions do not amount to First
Amendment retaliation. Defendants assert that Plaintiff lacks evidence that Officer
Fainuulelei “threatened to or actually did take” any adverse action against her.64
Defendants further contend that there is no factual dispute that Officer Fainuulelei
did not personally decide to reassign Plaintiff to a new cell, but rather at most only
“effected” the reassignment without any retaliatory motive.65 According to
Defendants, the only relevant evidence in the record pertaining to Officer
60 Docs. 32 at 4, ¶ 16; 42-2 at 1.
61 Docs. 32 at 5, ¶ 18; 42-3 at 1.
62 Doc. 32 at 5, ¶ 18.
63 Docs. 32 at 5, ¶ 19; 42-3 at 1; 42-4 at 1. The affidavits Plaintiff submitted in support of
her Third Amended Complaint also address two other incidents involving CO Fainuulelei. In
the first, CO Fainuulelei allegedly told Plaintiff that Plaintiff could not leave chairs in front
of her cell, even though a chair could be left in front of a different cell. Doc. 42-4 at 1. In
the second, CO Fainuulelei allegedly told Plaintiff that Plaintiff was required to leave the
door unlocked while inside her cell. Docs. 42-9 at 1; 42-10 at 1. However, Plaintiff does not
appear to contend that these incidents constitute retaliation because they are not mentioned
at all in the Third Amended Complaint. The Court therefore declines to address Defendants’
arguments pertaining to these two incidents.
64 Doc. 59 at 45.
65 Id. at 29.
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Fainuulelei’s motive is her testimony that she did not intend to prevent or discourage
Plaintiff from filing grievances.66
In response, Plaintiff argues that Officer Fainuulelei’s actions threatened her
and were therefore retaliatory, but Plaintiff does not contest Defendants’ evidence
as to Officer Fainuulelei’s motive.67
a. Officer Fainuulelei’s statements after Plaintiff lodged
her first grievance were not adverse actions.
For purposes of a retaliation claim, an adverse action is an action that “would
chill a person of ordinary firmness” from engaging in the protected conduct.68
Though an adverse action need not rise to the level of an independent constitutional
violation, inconsequential or de minimis harm does not make an action adverse.69 A
threat of harm can be an adverse action, but only if the threat could reasonably be
interpreted by a person of ordinary firmness as “intimating that some sort of
punishment or adverse regulatory action would follow.”70
To the extent that Plaintiff relies on each of Officer Fainuulelei’s alleged
statements in March and April 2020 as independently sufficient evidence of
unconstitutional retaliation, Plaintiff has failed to establish a genuine issue of
material fact as to whether these statements were adverse actions.71 Generously
66 Id.; see also Doc. 61 at 3, ¶ 12.
67 Doc. 73 at 13–15.
68 Pinard v. Clatskanie Sch. Dist., 467 F.3d 755, 770 (9th Cir. 2006). Contrary to Defendants’
assertions, their argument that CO Fainuulelei did not “t[ake] any retaliatory action against
[Plaintiff]” requires an objective assessment of the potential for CO Fainuulelei’s actions to
chill the protected conduct. See Docs. 59 at 45; 76 at 7–8.
69 Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (explaining that to support a claim,
a harm must be “more than minimal”).
70 Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (internal quotation marks and
citations omitted); see also id. (holding that a threatened harm need not be carried out to be
considered an adverse action).
71 Plaintiff’s Third Amended Complaint and Response to the Motion do not clearly indicate
whether Plaintiff views each statement as a separate instance of retaliation or as evidence
of retaliatory motive for Plaintiff’s subsequent housing reassignment. See Docs. 32 at 4–5,
¶¶ 15–20, 24-25; Doc. 73 at 13.
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construing Officer Fainuulelei’s instruction to another inmate to “teach [Plaintiff]
how to spell [Officer Fainuulelei’s] name” as a threat of harm, it does not amount to
an adverse action. Any threat was indirect in delivery and vague as to potential
repercussions for engaging in behavior not specified in the threat. Even if intended
to be intimidating, Officer Fainuulelei’s March 2020 statement could not reasonably
be interpreted by a person of ordinary firmness as suggesting that punishment or
any other consequences would follow.72
Officer Fainuulelei’s mention of “snitches” when breaking up a fight,
construed as a veiled reference to Plaintiff for filing a grievance against her, is
similarly not an adverse action. A correctional officer calling an inmate a “snitch”
can constitute an adverse action in circumstances where the defendant’s use of the
term could put the “snitch” at risk of harm from other inmates.73 Such circumstances
include a correctional officer labeling an inmate a snitch without context or accusing
an inmate of snitching on other inmates.74 Here, though, Officer Fainuulelei’s
comment did not identify Plaintiff as one of the purported snitches to whom she
referred. Furthermore, Plaintiff does not allege or present any evidence showing
that the other inmates who heard the remark would have understood it to refer
72 See Mateo v. Fischer, 682 F. Supp. 2d 423, 434 (S.D.N.Y. 2010) (observing that “[t]he less
direct and specific a threat, the less likely” courts are to consider the threat an adverse
action); Evenstad v. Herberg, 994 F. Supp. 2d 995, 1001 (D. Minn. 2014) (holding that
official’s statement, “We’ll be ramping things up,” was too vague to be considered an adverse
action because, among other reasons, the statement did not specifically reference the
plaintiff “or what he might have coming”); Schlosser v. Walker, No. 3:20-cv-433 (SRU), 2020
WL 4818563, at *7 (D. Conn. Aug. 17, 2020) (concluding that correctional officers’ statement
that inmate should “remember whose house he lives in” was “nothing more than a vague
intimation of an unspecified harm” and was therefore not an adverse action).
73 See Lyons v. Dicus, 663 F. App’x 498, 499–500 (9th Cir. 2016) (holding that plaintiff’s
complaint stated a retaliation claim based on correctional officer’s use of term “snitch kites”
to refer to prison grievance forms within earshot of other prisoners after plaintiff requested
those forms); Jackson v. O’Brien, No. 1:18-cv-00032-RAL, 2021 WL 3174687, at *6 (W.D.
Penn. July 27, 2021).
74 See Valandingham v. Bojorquez, 866 F.2d 1135, 1138–39 (9th Cir. 1989) (holding that
plaintiff’s complaint stated a retaliation claim where correctional officer allegedly told other
inmates plaintiff “snitch[ed] on everyone”); Jackson, 2021 WL 3174687, at *5–6.
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specifically to her. Officer Fainuulelei’s April 2020 statement thus would not have
chilled a person of ordinary firmness from continuing to file grievances.
Therefore, the Court finds there is no genuine dispute that Officer Fainuulelei
did not retaliate against Plaintiff by making the two remarks alleged in the Third
Amended Complaint.
b. Officer Fainuulelei did not act with retaliatory motive in
moving Plaintiff to a different cell.
A retaliation claim also requires proof that the protected conduct was a
substantial or motivating factor for the alleged retaliatory action.75 Retaliatory
motive may be shown by either direct or circumstantial evidence.76 There are three
general types of circumstantial evidence of retaliatory motive: (1) proximity in time
between protected speech and the alleged retaliation; (2) evidence that the
defendant expressed opposition to the speech; and (3) evidence that the reasons
proffered by the defendant for the adverse action were “false and pretextual.”77
Where a plaintiff relies solely on circumstantial evidence to show retaliation, that
evidence must be specific to defeat a motion for summary judgment.78 Mere
speculation that a defendant acted out of retaliation is not sufficient.79
Here, Defendants have met their burden of demonstrating that Plaintiff lacks
evidence to show that Officer Fainuulelei moved Plaintiff to a new cell with
retaliatory motive. First and foremost, Plaintiff’s bed history shows that Officer
Fainuulelei did not decide to reassign Plaintiff to a new cell.80 Plaintiff suggests that
Officer Fainuulelei was nevertheless involved in that decision because Officer
75 See Hines v. Gomez, 108 F.3d 265, 267–68 (9th Cir. 1997); Rhodes, 408 F.3d at 567.
76 Watison, 668 F.3d at 1114.
77 McCollum v. Cal. Dep’t of Corr. & Rehabilitation, 647 F.3d 870, 882 (9th Cir. 2011).
78 See Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 753 (9th Cir. 2010); see also
Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th Cir. 2003).
79 Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (affirming grant of summary judgment
where there was no evidence that defendants knew about plaintiff’s prior lawsuit, or that
defendants’ disparaging remarks were made in reference to prior lawsuit).
80 Doc. 59-1 at 1.
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Fainuulelei was the source of the information that she was in a relationship with
another inmate, which was the basis for the move.81 However, Plaintiff’s testimony
does not create a genuine dispute of material fact as to this issue. Plaintiff testifies
that when she confronted a correctional officer about the reasons for the move, she
asked the officer if Officer Fainuulelei was the source of the information that she
was in a relationship with another inmate.82 But Plaintiff does not indicate what the
response to that question was and offers no evidence beyond her own speculation
that Officer Fainuulelei ever provided this information. Without evidence that
Officer Fainuulelei played any part in the housing reassignment decision, she cannot
be liable for any violation of Plaintiff’s rights associated with that decision.83
Furthermore, even if there were a genuine dispute as to Officer Fainuulelei’s
participation in the reassignment decision, Plaintiff fails to demonstrate that Officer
Fainuulelei might have acted with retaliatory intent. Even assuming the two-month
gap in between Plaintiff’s first grievance and the housing reassignment is some
circumstantial evidence of retaliatory motive, suspect timing alone is insufficient to
support a finding of retaliatory motive.84 Plaintiff has not presented specific, non-
speculative evidence from which to infer that Officer Fainuulelei expressed
opposition to her filing the grievance, or that the basis for the reassignment was
false or pretextual. Therefore, Plaintiff has failed to raise a triable issue as to
81 Docs. 42-3 at 1; 42-4 at 1.
82 Docs. 42-3 at 1; 42-4 at 1.
83 See Lacey, 693 F.3d at 916 (explaining that a government official’s culpability under §
1983 is limited both by “the causal connection of the official to the complained-of violation”
and also by the official’s “intent . . . to deprive another of that person’s rights,” because an
official “is only liable for his or her own misconduct”).
84 Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (concluding that defendants did not act
with retaliatory motive because beyond suspect timing, “there [was] little else to support
[an] inference” of retaliatory motive); cf. also Huskey v. City of San Jose, 204 F.3d 893, 899
(9th Cir. 2000) (holding that plaintiff failed to show a nexus between his protected speech
and any adverse employment action suffered because there was no evidence supporting
retaliatory motive beyond fact that alleged adverse action occurred after protected speech).
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retaliatory motive.85
Accordingly, there is no genuine dispute that Officer Fainuulelei did not
retaliate against Plaintiff by moving her to a different cell.
2. Sergeant Johnston Did Not Retaliate Against Plaintiff by
Interviewing Her About a Grievance in Front of Other Inmates.
Plaintiff alleges that Sergeant Johnston retaliated against her for filing
grievances by purposely interviewing her about her second grievance against Officer
Fainuulelei in front of other inmates during meal time.86 Defendants submit that
Plaintiff has no evidence that Sergeant Johnston had any retaliatory motive for
conducting the interview in this manner, noting that Plaintiff did not engage in any
discovery with respect to this issue.87 Moreover, Defendants assert that “the only
[relevant] evidence in the record is Sergeant Johnston’s own testimony that he did
not inten[d] to prevent or dissuade [Plaintiff] from filing . . . grievances.”88
Plaintiff’s Response does not address these arguments.89
Defendants have met their burden of production with direct evidence that
Sergeant Johnston lacked retaliatory motive for addressing Plaintiff’s grievance in
front of other inmates. The only other evidence that could bear on Sergeant
Johnston’s motive is Plaintiff’s testimony that Superintendent Johnson told Plaintiff
that “[Sergeant] Johnston’s problem is he wants to be liked by his coworkers.”90
However, this statement does not give rise to a reasonable inference that Sergeant
Johnston would be motivated to retaliate against Plaintiff because she had filed
grievances regarding other prison staff.91 If anything, Superintendent Johnson’s
85 See Anthoine, 605 F.3d at 753; Bruce, 351 F.3d at 1288–89.
86 Doc. 32 at 5, ¶ 20.
87 Doc. 59 at 39; see also Doc. 60.
88 Doc. 59 at 39; see also Doc. 64 at 2, ¶ 6.
89 See Doc. 73 at 13–15.
90 Doc. 42-8 at 1.
91 Plaintiff had not yet filed a grievance against Sergeant Johnston at the time of the
interview. See Doc. 42-7 at 1.
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statement indicates that although Sergeant Johnston may have had an improper
reason for conducting the interview in front of other inmates, that reason was
unrelated to Plaintiff’s protected conduct and thus not retaliatory.92 Plaintiff offers
no additional evidence linking Sergeant Johnston to any retaliatory motive.93
Therefore, there is no genuine dispute that Sergeant Johnston did not retaliate
against Plaintiff by interviewing her about a grievance in public.
3. Lieutenant Booher, Superintendent Johnson, Sergeant Johnston,
and Sergeant West Did Not Retaliate Against Plaintiff by
Ignoring or Failing to Adequately Address Her Grievances.
Plaintiff broadly alleges that Lieutenant Booher, Superintendent Johnson,
Sergeant Johnston, and Sergeant West retaliated against her for filing grievances by
“d[oing] nothing” in response to those grievances or by failing to resolve the issues
raised in them.94 Plaintiff suggests that many of her grievances were not processed
or ignored, as evidenced by the lack of official responses to them.95 Plaintiff also
alleges that although Superintendent Johnson met with her to discuss her concerns
regarding Officer Fainuulelei and Sergeant Johnston, Superintendent Johnson failed
to follow up with Plaintiff after the meeting, as she had promised.96
Defendants contend that Plaintiff cannot show any adverse action because
92 See Rhodes, 408 F.3d at 567 (holding that a prisoner retaliation claim requires a showing
that a state actor took an adverse action against an inmate “because of . . . that [inmate’s]
protected conduct”); Nwandu v. Bach, No. 06-CV-0999 MMA WMC, 2020 WL 2486771, at
*12 (S.D. Cal. Apr. 21, 2010), report and recommendation adopted, 2010 WL 2487194 (S.D.
Cal. June 15, 2010) (“Plaintiff has failed to establish the causation element of his retaliation
claim because he has offered no evidence demonstrating Defendants . . . destroyed and lost
his legal and personal property because of the protected conduct Plaintiff engaged in by filing
[a] grievance against [one Defendant].”).
93 Without evidence of retaliatory motive, Plaintiff’s argument that Sergeant Johnston’s
public interview was an “intimidation tactic” is neither here nor there. See Doc. 73 at 15.
94 Doc. 32 at 4–6, ¶¶ 16–17, 19–20, 25.
95 Id.; see also Docs. 42-1, 42-2, 42-3, 42-4, 42-5, 42-6, 42-7, 42-8, 42-9.
96 Docs. 32 at 5, ¶ 20; 42-9. Plaintiff’s own sworn affidavits contradict her additional
allegation in the Third Amended Complaint that Superintendent Johnson “defended Sergeant
Johnston’s actions” during this meeting. See Docs. 42-7; 42-8 (testifying that
Superintendent Johnson told Plaintiff she planned to have Sergeant Johnston “apologize to
[Plaintiff] and that he knows better than to interview anyone in the commons in front of
anybody”).
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there is no dispute of material fact that they did not ignore Plaintiff’s grievances and
instead addressed some of them internally and others with Plaintiff.97 Defendants
assert that Plaintiff’s own testimony regarding her meeting with Superintendent
Johnson shows that Defendants did not ignore Plaintiff’s complaints of staff
misconduct.98 	Defendants also maintain that Superintendent Johnson’s
uncontroverted testimony demonstrates that at the end of her meeting with Plaintiff,
Superintendent Johnson asked if their conversation had sufficiently resolved the
matter regarding Sergeant Johnston, and Plaintiff responded that it had.99
Defendants assert that they likewise addressed Plaintiff’s complaints regarding
Officer Fainuulelei, as evidenced by Plaintiff’s own testimony that her meeting with
Superintendent Johnson covered Officer Fainuulelei’s behavior, Superintendent
Johnson’s testimony that she spoke to Lieutenant Booher about Officer Fainuulelei,
Lieutenant Booher’s testimony that he spoke to Officer Fainuulelei to address
Plaintiff’s complaints, and Officer Fainuulelei’s testimony that she was informed
about the substance of these complaints.100 Plaintiff again does not address these
arguments in her Response.101
Defendants have met their burden of showing that they took action to address
the complaints Plaintiff lodged against Officer Fainuulelei and Sergeant Johnston.
Plaintiff fails to produce evidence to create a factual dispute as to whether or how
Defendants responded to her grievances. Defendants may not have consistently
addressed Plaintiff’s complaints promptly, formally, or directly. However, any
failure by Defendants to resolve Plaintiff’s concerns in her favor or to follow certain
procedures in addressing those concerns is not an adverse action for purposes of a
97 Doc. 59 at 34–38.
98 Id. at 36–37.
99 Id. at 35–36; Doc. 66 at 2, ¶ 7.
100 Docs. 59 at 37–38; 61 at 2, ¶ 3; 65 at 2, ¶ 6.
101 See Doc. 73 at 13–15.
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First Amendment retaliation claim.102
In sum, there is no genuine dispute that Defendants did not retaliate against
Plaintiff by ignoring or failing to adequately respond to her grievances. Because
Defendants did not retaliate against Plaintiff, they cannot be liable for a conspiracy
to commit that constitutional violation against her, and they are entitled to qualified
immunity.103
IV. CONCLUSION
There is no genuine dispute of material fact that Defendants did not retaliate
against Plaintiff in violation of the First Amendment.104 As a result, Defendants are
entitled to qualified immunity and summary judgment on Plaintiff’s conspiracy
claim. Accordingly, the Court recommends that the Motion be GRANTED and that
Plaintiff’s claims be DISMISSED with prejudice.
DATED this 12th day of February, 2024 at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
102 See Voits v. Brown, No. 2:22-CV-01365-MC, 2023 WL 2447474, at *1 (D. Or. Feb. 23, 2023)
(“The denial of a grievance, standing alone, is de minimis action and insufficient to establish
a claim of First Amendment retaliation.”); Wright v. Shannon, No. 1:05-cv-01485-LYO-YNP
PC, 2010 WL 445203, at *5 (E.D. Cal. Feb. 2, 2010) (concluding that allegations that prison
officials denied or ignored inmate appeals failed to state a First Amendment retaliation
claim, noting lack of precedent suggesting that the First Amendment “requires grievances
to be processed in a certain way”); Dicey v. Hanks, No. 2:14-cv-2018 JAM AC P, 2015 WL
4879627, at *5 (E.D. Cal. Aug. 14, 2015) (“[T]he denial of a grievance neither constitutes an
adverse action that is more than de minimis nor is it sufficient to deter a prisoner of
‘ordinary firmness’ from further First Amendment activities.”); Burgos v. Canino, 641 F.
Supp. 2d 443, 454 (E.D. Pa.) (determining that the rejection or denial of prison grievances
does not constitute adverse action for purposes of a retaliation claim), aff'd, 358 F. App’x
302 (3d Cir. 2009); Colvin v. Horton, No. 2:19-cv-122, 2019 WL 3927425, at *12 (W.D. Mich.
Aug. 20, 2019) (holding that the failure to process a grievance is not adverse action); Ross
v. Westchester Cnty. Jail, No. 10 Civ. 3937(DLC), 2012 WL 86467, at *8 (S.D.N.Y. Jan. 11,
2012) (finding that the refusal to accept a grievance is insufficient to constitute an adverse
action); Frazier v. Zavaras, No. 10-cv-02534-CMA-KMT, 2011 WL 4537001, at *9 (D. Colo.
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NOTICE OF RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate judge
to hear and determine matters pending before the Court. For dispositive matters, a
magistrate judge reports findings of fact and provides recommendations to the
presiding district court judge.105 A district court judge may accept, reject, or modify,
in whole or in part, the magistrate judge’s order.106
A party may file written objections to the magistrate judge’s order within 14
fourteen days.107 Objections and responses are limited to five (5) pages in length
and should not merely reargue positions previously presented. Rather, objections
and responses should specifically identify the findings or recommendations objected
to, the basis of the objection, and any legal authority in support. Reports and
recommendations are not appealable orders. Any notice of appeal pursuant to Fed.
R. App. P. 4(a)(1) should not be filed until entry of the district court’s judgment.108
Sept. 30, 2011) (stating that the “denial of an administrative grievance is not an ‘adverse
action’”); cf. also Mann v. Adams, 855 F.2d 639, 940 (9th Cir. 1988) (holding that prisoners
do not have a constitutional entitlement to a grievance procedure).
103 See Est. of Lopez ex rel. Lopez, 871 F.3d at 1005.
104 Given the absence of an underlying constitutional violation to support Plaintiff’s
conspiracy claim, the Court declines to address the other arguments raised in Defendants’
Motion.
105 28 U.S.C. § 636(b)(1)(B).
106 Id. § 636(b)(1)(C).
107 Id.
108 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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