Ejonga v. Watanabe

[7] UNITED STATES DISTRICT COURT [8] WESTERN DISTRICT OF WASHINGTON AT TACOMA [10] JOJO DEOGRACIAS EJONGA, CASE NO. 2:21-cv-01004-RJB-GJL [11] Plaintiff, ORDER ADOPTING REPORT AND 12 v. RECOMMENDATION 13 CHERYL STRANGE; MICHAEL OBENLAND; ERIC JACKSON; JOHN 14 DOE; CAROL SMITH; JANE DOE; JACK WARNER; LEE STEMLER; ALEX 15 WANTANBE; ARBEN KULLOJKA; JON DOE, [16] Defendants. [17] 18 This matter comes before the Court on the Report and Recommendation of U.S. 19 Magistrate Judge Grady J. Leupold. Dkt. 154. The Court has considered the Report and 20 Recommendation, Defendants’ Objections to the Report and Recommendation, Plaintiff’s 21 Response to the Objections, and the file herein. 22 A. BACKGROUND AND REPORT AND RECOMMENDATION 23 On July 27, 2021, the Plaintiff, a pro se prisoner, filed this civil rights case pursuant to 42 24 U.S.C. § 1983 . Dkt. 1. On September 14, 2023, the Report and Recommendation was filed, 1 recommending that Defendants’ motion for summary judgment (Dkt. 131) be denied as to the 2 Plaintiff’s First Amendment retaliation claim against Defendant Alex Watanabe, a prison 3 grievance coordinator, and granted in all other respects. Dkt. 154. The facts and procedural 4 history are in the Report and Recommendation (Dkt. 154) and are adopted here. Defendants’ 5 objections relate to the Plaintiff’s First Amendment retaliation claim only. Dkt. 155. 6 B. PLAINTIFF’S FIRST AMENDMENT RETALIATION CLAIM 7 The Plaintiff’s First Amendment retaliation claim arises from a kiosk message from 8 Plaintiff. For ease of reference, the facts related to this claim are repeated here. The Plaintiff’s 9 message at issue provided: 10 It is crazy while yall [sic] got me sick, torture me in IMU, I grieve yall [sic], then yall [sic] want to write me up. This is intimidation and Harassment. Let 11 Watanabe know, I will see her in Court. 12 Dkt. 65 at 13. As a result of the message, Defendant Watanabe filed a Washington 13 Administrative Code (“WAC”) 663 serious infraction notice against the Plaintiff. Id. at 48 . 14 After a hearing, the Plaintiff was found not guilty. Id. at 50-51 . 15 C. DEFENDANTS’ OBJECTIONS AND DECISION 16 The Defendants maintain in their objections that the Report and Recommendation erred 17 only in not recommending that Defendant Watanabe be granted qualified immunity. Dkt. 155. 18 They contend that there is no showing that the Plaintiff’s rights were clearly established at the 19 time. Id. 20 In analyzing a qualified immunity defense, the Court must determine: (1) whether a 21 constitutional right would have been violated on the facts alleged, taken in the light most 22 favorable to the party asserting the injury; and (2) whether the right was clearly established when 23 viewed in the specific context of the case. Saucier v. Katz, 533 U.S. 194 , 201 (2001). [24] 1 As to the first Saucier step, the Report and Recommendation recommends finding that 2 there are issues of fact as to whether Defendant Watanabe violated the Plaintiff’s First 3 Amendment rights by retaliating against him in filing a serious infraction notice against him. 4 Dkt. 154. The Defendants do not meaningfully object to this recommendation and it should be 5 adopted. 6 As to the second Saucier step, the Court must determine whether the constitutional rights 7 asserted were “clearly established when viewed in the specific context of the case.” Saucier at 8 2156. For purposes of qualified immunity, “[a] right is clearly established when it is sufficiently 9 clear that every reasonable official would have understood that what he is doing violates that 10 right.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021). While case law directly on point is 11 not required for a right to be clearly established, “existing precedent must have placed the 12 statutory or constitutional question beyond debate.” Id. at 7-8 . Courts in the Ninth Circuit look to 13 “controlling authority or a robust consensus of cases of persuasive authority to determine settled 14 law.” Vanegas v. City of Pasadena, 46 F.4th 1159, 1165 (9th Cir. 2022). 15 As it relates to Defendant Watanabe’s claim for qualified immunity on the First 16 Amendment retaliation claim, the Report and Recommendation points to Entler v. Gregoire, 872 17 F.3d 1031, 1034 (9th Cir. 2017) as clearly established law. Dkt. 154 at 16. 18 In Entler, the Plaintiff, a pro se prisoner, filed several kites regarding various issues, 19 including charges on his prison account and being forced to work contrary to his religious 20 beliefs. Entler at 1035-1038 . His kites often included a demand for action (or to stop acting) 21 and then statements like “or I will sue you,” “or I’ll file criminal charges against you and have 22 you arrested,” or “I will initiate litigation . . .” Id. at 1036-1037 . Infractions were issued against [24] 1 Entler and, after hearings, he was found guilty. Id. Entler filed a lawsuit, in part, asserting a 2 First Amendment retaliation claim. 3 In reversing the district court’s dismissal of his First Amendment retaliation claim, the 4 Court in Entler noted that “[t]he most fundamental of the constitutional protections that prisoners 5 retain are the First Amendment rights to file prison grievances and to pursue civil rights litigation 6 in the courts.” Id. at 1039 . It held that there was no “constitutional underpinning” for a 7 distinction between formal and informal grievances (whether written or verbal) or for “the 8 distinction between a threat to initiate litigation and the litigation.” Id. “[T]hreats to sue fall 9 within the purview of the constitutionally protected right to file grievances.” Id. 10 The Defendants in this case object, asserting that Entler does not govern whether 11 qualified immunity should be granted here. Dkt. 155. They argue that unlike Entler, Plaintiff’s 12 statements were not respectful and that he used hyperbolic language. Id. The Defendants fail to 13 explain why that is material. In any event, the Entler Court, while classifying some of Entler’s 14 kites as respectful, do not indicate that respectful language is a requirement or even that Entler 15 was respectful in all his kites. 16 The Defendants also argue that Entler is distinguishable because the kites there were 17 actually petitions to the government for redress. Dkt. 155. The Defendants’ characterization of 18 the Plaintiff’s message (that it was not for government redress) is, at most, an issue of fact. At 19 this stage, the facts must be viewed in a light most favorable to the Plaintiff. Tuuamalemalo v. 20 Greene, 946 F.3d 471, 477 (9th Cir. 2019). Qualified immunity is not appropriate if, as here, 21 there are issues of fact. Id. Further, whether the message was an informal grievance under the 22 prison’s grievance system is immaterial. “The applicability of the constitutional right to redress [24] 1 of grievances does not hinge on the label the prison places on a particular complaint.” Entler at 2 1039. 3 The Defendants maintain that this case is not like Entler because the Plaintiff’s message 4 was to be relayed to Watanabe directly. Dkt. 155. The Defendants fail to point to any authority 5 to support their assertion (that the fact that the threat to initiate litigation was directed at 6 Watanabe) is a relevant distinction. Further, at least some of Entler’s threats regarding litigation 7 were directed at individuals. 8 Entler constitutes clearly established law to notify Defendant Watanabe that initiating 9 sanctions against the Plaintiff for threatening her with litigation was not lawful. Accordingly, 10 qualified immunity should be denied as the Plaintiff’s First Amendment retaliation claim. 11 D. CONCLUSION 12 The Report and Recommendation (Dkt. 154) should be adopted. No objections were 13 filed regarding the other recommendations on the dismissal of Plaintiff’s remaining claims 14 and/or “Doe” Defendants. The Report and Recommendation has merit in all respects. 15 ORDER 16 Therefore, it is hereby ORDERED that: 17  The Report and Recommendation (Dkt. 154) IS ADOPTED; 18 o The Defendants’ motion for summary judgment (Dkt. 131) IS DENIED 19 as to the Plaintiff’s First Amendment retaliation claim against Defendant 20 Watanabe and GRANTED in all other respects: 21  Except for the Plaintiff’s First Amendment retaliation claim, the 22 Plaintiff’s claims 2-6 ARE DISMISSED WITH PREJUDICE; [24] 1  Plaintiff’s claims against the “Doe” Defendants, including Claim 7, 2 ARE DISMISSED WITHOUT PREJUDICE. 3 The Clerk is directed to send uncertified copies of this Order to U.S. Magistrate Judge 4 Leupold, all counsel of record, and to any party appearing pro se at said party’s last known 5 address. 6 Dated this 19th day of October, 2023. A [8] ROBERT J. BRYAN United States District Judge