                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                                    FILED
                            FOR THE NINTH CIRCUIT
                                                                                      JUL 18 2011
                                                                                 MOLLY C. DWYER, CL
                                                                                  U .S. C O U R T OF APPE A
 DELANO LARTEL WRIGHT,                           No. 07-55988

              Plaintiff - Appellant,             D.C. No. CV-04-01873-IEG

         v.
                                                 MEMORANDUM *
 DIRECTOR OF CORRECTIONS; K.
 GRADY, Correctional Sergeant; J. M.
 GUZMAN, Correctional Officer; J.
 HAWKES, Correctional Officer;
 GASGOHIA, Correctional Officer; R.
 DAVIS, Correctional Lieutenant; R.
 JOHNSON, Correctional Sergeant,

              Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Southern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                        Argued and Submitted May 11, 2011
                             San Francisco, California

Before: GOULD and M. SMITH, Circuit Judges, and GERTNER, District Judge.**



     *
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
     The Honorable Nancy Gertner, United States District Judge for the District
of Massachusetts, sitting by designation.
      Prison inmate Delano Lartel Wright ("Wright") sued various correctional

officers at Calipatria State Prison ("Calipatria") pursuant to 42 U.S.C. § 1983,

alleging that they violated his rights under the Eighth Amendment by employing

excessive force against him and failing to protect him from such force, as well as

his rights under the First Amendment by retaliating against him for filing a prison

grievance. Proceeding pro se, Wright alleged in his handwritten complaint that,

after he raised concerns about the improper manner in which correctional officers

were searching his cell, one of the defendants, Sergeant K. Grady ("Grady"),

forced Wright, handcuffed and wearing nothing other than his underpants, into the

yard and then strangled him, all the while slamming Wright's head against a wall.

Wright further alleged that other correctional officers—Defendants Officer

Gasgonia ("Gasgonia"), Officer J. M. Guzman ("Guzman"), and Officer H.

Hawkes ("Hawkes")—were present while Wright was being abused but failed to

intervene on his behalf.

      Wright filed a grievance and soon thereafter was summoned to speak with

Defendants Lieutenant Davis ("Davis") and Sergeant R. Johnson ("Johnson").

Davis and Johnson allegedly threatened to put Wright in administrative segregation

(commonly known as solitary confinement or "The Hole") and confiscate his

personal property unless he recanted. A few weeks later, Wright was transferred to


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a higher security prison. Wright claims that the transfer was in retaliation for

pursuing his grievance against the officers.

      The district court denied Wright's request for the appointment of counsel and

later granted Defendants' motion for summary judgment, dismissing all of Wright's

claims. We now reverse with respect to the appointment of counsel, the Eighth

Amendment claims, and the First Amendment claims insofar as they deal with the

alleged threat to put Wright in solitary confinement and confiscate his personal

property unless he recanted.

I.    Eighth Amendment Claims

      The district court dismissed Wright's Eighth Amendment claims for

excessive force and failure to protect him based on what it characterized as the lack

of evidence of any physical injury. It did not consider whether the force that Grady

and other officers applied was required by the circumstances. As both sides now

agree, in so holding, the district court applied the wrong legal standard. See

Wilkins v. Gaddy, 130 S. Ct. 1175 (2010).

      Defendants "concede that a triable issue of fact exists concerning Wright's

claim that Defendant Grady used excessive force against him by choking him and

that Defendants Gasgonia, Guzman, and Hawkes failed to intervene to stop this use

of force." Red Br. 1-2. We agree and remand for a jury determination of Wright's


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Eighth Amendment claims under the Wilkins standard.

II.    First Amendment Retaliation Claims

       Prisoners have a First Amendment right to file prison grievances. Bruce v.

Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). Retaliation against prisoners for their

exercise of this right is itself a constitutional violation, prohibited as a matter of

"clearly established law." Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). In

Rhodes v. Robinson, we set forth the five elements of a "viable claim of First

Amendment retaliation" in the prison context: "(1) [a]n 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

correctional goal." 408 F.3d 559, 567–68 (9th Cir. 2005).

       Wright's claims identify two different occasions when Defendants allegedly

violated his First Amendment rights: when Johnson and Davis threatened to place

Wright in "The Hole" and take away his personal property—which would require

him to re-purchase those items—unless he withdrew his grievance,1 and when




1
 In his deposition, Wright admitted that only Davis threatened him. See SER 82.
However, Johnson was in the room with Davis and, apparently, did not convey
disagreement with Davis' statements.

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Wright was transferred to a higher-security facility supposedly as punishment for

pursuing the grievance.

      A.     No Waiver

      As a preliminary matter, Defendants assert that Wright abandoned his First

Amendment claims by failing to oppose the First Amendment arguments raised in

Defendants' motion for summary judgment. We disagree. In the Argument section

of his summary judgment reply brief, Wright chronicled what happened when he

filed a grievance, noting that "Lieutenant Davis used intimidating tactics of saying

that plaintiff and inmate Weathers would be placed in administrative segregation

out of sight from the general population unless plaintiff and inmate Weathers

recanted statements of excessive force." SER 242. Affording Wright's brief the

liberal construction owed to the pleadings of a pro se inmate, we read Wright's

response as an opposition to both the First Amendment and Eighth Amendment

aspects of Defendant's motion for summary judgment. See Thomas v. Ponder, 611

F.3d 1144, 1150 (9th Cir. 2010) (affirming that "courts should construe liberally

motion papers and pleadings filed by pro se inmates and should avoid applying

summary judgment rules strictly"). Accordingly, Wright has not waived his First

Amendment claims.

      B.     Davis/Johnson Threat



                                         -5-
       The district court neglected to address the Davis/Johnson threat prong of

Wright's First Amendment claims. As such, we remand for the district court to

consider this issue in the first instance.

       C.     Transfer Claim was Properly Dismissed

       With respect to Wright's allegation of a retaliatory transfer, the district court

properly found for the Defendants. As Wright himself concedes, his transfer claim

is based completely on circumstantial inferences of retaliation—inferences from

the timing of his transfer, from statements by unnamed officials that his

psychological status did not require him to have been transferred, and from the

allegation that Davis and Johnson had previously threatened to punish him if he

refused to recant. The timing, however, is off; Wright was transferred two months

after he filed his grievance and stayed at High Desert for over a year. Furthermore,

Wright has not identified any particular Defendant who may have been even

remotely involved in the classification committee's decision to transfer him. Nor

has he undermined the prison's purported rationale for classifying him with

psychiatric needs that Calipatria could not accommodate. In other words, as the

district court found, Wright "has failed to produce evidence sufficient to show that

any of the named Defendants acted in the absence of a legitimate penological

goal." SER 299.



                                             -6-
       In contrast, Defendants have submitted direct evidence to rebut Wright's

inferences. Defendants testified that they had no involvement in transferring

Wright to High Desert State Prison, that transfers occur only if a "classification

committee" recommends it, and that none of the Defendants were on the

classification committee that recommended Wright's transfer. Under the

circumstances, the district court properly granted summary judgment on Wright's

retaliatory transfer claim.

III.   Appointment of Counsel

       Wright claims that the district court abused its discretion by denying his

request for the appointment of counsel pursuant to 28 U.S.C. § 1915. In the instant

case, the district court recited the correct standard but failed to apply it. While

there is no constitutional right to appointed counsel in civil-rights cases, Rand v.

Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other

grounds, 154 F.3d 952 (9th Cir. 1998), in exceptional circumstances, the court may

request counsel to voluntarily provide representation, 28 U.S.C. § 1915(e)(1). In

deciding whether to appoint counsel pursuant to 28 U.S.C. § 1915, the district

court must evaluate both the likelihood of success on the merits and the ability of

the petitioner to articulate his claims pro se in light of the complexity of the legal

issues involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) ("Neither



                                           -7-
of these factors is dispositive and both must be viewed together before reaching a

decision.") (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986));

see Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (concerning appointment

of counsel for a habeas petitioner) (citing Maclin v. Freake, 650 F.2d 885, 887–88

(7th Cir. 1981)). In denying Plaintiff's motion, the district court ignored the

likelihood of success factor, deciding only that Wright "does appear to have a

sufficient grasp of his case, the legal issues involved, and is able to adequately

articulate the factual basis of his case." AER 15.

      Under the correct legal standard, Wright is entitled to the appointment of

counsel. Moreover, since we are reversing the district court's grant of summary

judgment on Wright's excessive force claim, there will be a trial, which would

surely tax Wright's abilities.

IV.   Conclusion

      The district court's denial of Wright's request for the appointment of counsel

is REVERSED, and its grant of summary judgment is REVERSED IN PART

and AFFIRMED IN PART. This case is REMANDED.

      Each party bears its own costs.




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