                                                                          FILED
                           NOT FOR PUBLICATION
                                                                           FEB 12 2016
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROBERT E. JOHNSON,                              No. 13-35255

              Plaintiff - Appellant,            D.C. No. 2:11-cv-01117-RSM

 v.                                             MEMORANDUM*

STEVEN SAGER, TRU Counselor; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Western District of Washington
                Ricardo S. Martinez,Chief District Judge, Presiding

                            Submitted December 7, 2015
                                Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and GLEASON,** District
Judge.

      Robert E. Johnson, a Washington state prisoner, appeals from the district

court’s order granting the defendants’ motion for summary judgment and their


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
motion to strike portions of plaintiff’s submissions in his 42 U.S.C. § 1983 action.

Johnson contends that the defendants discriminated against him because he is

African American when they refused to allow him to possess a cardboard box in

his cell, initiated a bunk transfer, refused to facilitate a legal phone call, and

delayed opening a prison conference room. He contends that the phone call refusal

and other prison staff conduct violated his right of access to the courts. He

contends that prison staff undertook much of this conduct in retaliation for his legal

activities, and as part of a conspiracy to deprive him of his right to equal

protection. In addition, Johnson contends that the district court improperly

excluded portions of his filings related to the motion for summary judgment. We

have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and reverse and

remand in part.

      We review a district court’s decision to grant summary judgment and its

qualified immunity determinations de novo. See Torres v. City of Madera, 648

F.3d 1119, 1123 (9th Cir. 2011). Viewing the evidence in the light most favorable

to Johnson, the non-moving party, the court must determine whether there are any

genuine issues of material fact such that a reasonable jury could return a verdict for

Johnson, and whether the district court correctly applied the substantive law. See

Pavoni v. Chrysler Group, LLC, 789 F.3d 1095, 1098 (9th Cir. 2015).


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      We affirm the district court’s grant of summary judgment and qualified

immunity with respect to all claims against all defendants except with regard to the

equal protection and retaliation claims against Michael Silva related to the

cardboard boxes. With regard to all of the other defendants and claims, Johnson

did not demonstrate a triable issue of fact regarding these defendants’ intent or

purpose to discriminate against him based upon his membership in a protected

class, Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013), that they took

actions adverse to Johnson because of his protected conduct, Wood v. Beauclair,

692 F.3d 1041, 1051 (9th Cir. 2012), or that they conspired to deprive him of equal

protection, or of equal privileges and immunities under the laws, Gillespie v.

Civiletti, 629 F.2d 637, 641 (9th Cir. 1980).

      However, the district court erred in granting summary judgment on

Johnson’s equal protection and retaliation claims against defendant Michael Silva.

Viewing the facts in the light most favorable to Johnson, a reasonable jury could

find that Silva denied Johnson cardboard boxes in his cell because of his race while

allowing similarly-situated white prisoners to have cardboard boxes in their cells.

Johnson claims that Silva told him “whites or anybody else could have as many

boxes as [Silva] says,” and submitted affidavits purportedly from white prisoners

who stated that they were allowed to retain cardboard boxes in their cells. Under


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these alleged facts, Silva inconsistently administered a prison policy that prohibited

inmates from retaining cardboard boxes in their cells. The existence of a legitimate

reason for Silva to deny Johnson a cardboard box does not negate a possible intent

to impermissibly discriminate against Johnson based on race. See Serrano v.

Francis, 345 F.3d 1071, 1082–83 (9th Cir. 2003) (holding that the fact that

defendant’s racial remarks were in response to comments offered by the plaintiff

did not negate an inference that defendant intended to discriminate). Nor does it

eliminate the possibility that Johnson’s grievances and civil rights litigation were

the “substantial” or “motivating” factors behind Silva’s conduct. See Brodheim v.

Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting Soranno’s Gasco, Inc. v.

Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)). The timing of Silva’s alleged

statements and conduct relative to Johnson’s legal activities and grievances raises

a genuine issue of material fact that should have survived summary judgment. See

Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th Cir. 2003). Accordingly, we reverse

the district court’s grant of summary judgment in favor of defendant Silva on

Johnson’s equal protection and retaliation claims related to the cardboard boxes,

and remand for further proceedings consistent with this memorandum.

      The magistrate judge’s Report and Recommendation found no constitutional

violation, and found it unnecessary to “address defendants’ argument that they are


                                           4
also entitled to qualified immunity.” The magistrate judge nonetheless

recommended a finding that “the record demonstrates that defendants are entitled

to qualified immunity” because, as relevant to the cardboard boxes, “it was not

clearly established that Mr. Johnson’s constitutional rights would be violated by

officers confiscating cardboard boxes in accordance with prison policy . . . .” The

trial court summarily adopted the Report and Recommendation. Because Silva

may have violated Johnson’s constitutional rights, we reverse the district court’s

grant of summary judgment on qualified immunity in favor of defendant Silva

regarding Johnson’s equal protection and retaliation claims, and remand for the

district court to consider Silva’s eligibility for qualified immunity in the first

instance. See Serrano, 345 F.3d at 1077.

      We review the district court’s evidentiary rulings for an abuse of discretion.

Wicker v. Oregon ex rel. Bureau of Labor, 543 F.3d 1168, 1173 (9th Cir. 2008).

At the summary judgment stage, “a party does not necessarily have to produce

evidence in a form that would be admissible at trial, as long as the party satisfies

the requirements of Federal Rules of Civil Procedure 56.” Block v. City of Los

Angeles, 253 F.3d 410, 418–419 (9th Cir. 2001). However, on review we conclude

that none of the district court’s evidentiary exclusions constitutes an abuse of

discretion, so we affirm its grant of the motion to strike.


                                            5
Costs on appeal are awarded to Johnson.

      AFFIRMED in part; REVERSED and REMANDED in part.




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