                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 30 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



STANFORD PAUL BRYANT,                             No. 11-55153

              Plaintiff - Appellant,              D.C. No. 3:07-cv-00200-JM-PCL

  v.
                                                  MEMORANDUM *
J. TIM OCHOA, Warden, Chief Deputy
Warden, in his official capacity and as an
individual; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Southern District of California
                  Jeffrey T. Miller, Senior District Judge, Presiding

                           Submitted October 10, 2012 **

Before: HUG, FARRIS, and LEAVY, Circuit Judges.

       California state prisoner Stanford Paul Bryant appeals pro se the district

court’s summary judgment in his 42 U.S.C. § 1983 retaliation action. We have




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo, Brodheim v. Cry, 584

F.3d 1262, 1267 (9th Cir. 2009), and we affirm as to defendants Bastida, Brown,

Stanford, Hopper, McNair, Janda, Magnum, Ries, Carnes, Gonzales, Harmon,

Ochoa, Mudra, Williams, Ryan, Romero, Barra, and Raske. We reverse and

remand as to defendants Best, Olivarez, and Jiminez.

      The district court properly granted summary judgment to defendants

Bastida, Brown, Stanford, Hopper, McNair, Janda, Magnum, Ries, Carnes,

Gonzales, Harmon, Ochoa, Mudra, Williams, Ryan, Romero, Barra, and Raske.

Bryant failed to demonstrate the existence of a genuine dispute of material fact as

to whether those defendants’ actions were motivated by Bryant’s protected activity

or served no legitimate penological goal. See Brodheim, 584 F.3d at 1269 n.3

(setting forth the elements of a retaliation claim in the prison context); Bruce v.

Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003) (to survive summary judgment, the

prisoner must “put forth evidence of retaliatory motive”); Pratt v. Rowland, 65

F.3d 802, 806 (9th Cir. 1995) (“[A] successful retaliation claim requires a finding

that ‘the prison authorities' retaliatory action did not advance legitimate goals of

the correctional institution or was not tailored narrowly enough to achieve such

goals.’”) (citation omitted).




                                           2                                     11-55153
      The district court erred in granting summary judgment to defendant Best

because Bryant demonstrated the existence of a genuine dispute of material fact as

to whether Best retaliated against Bryant by harassing him, using unnecessary

force, and filing a false report. See Brodheim, 584 F.3d at 1271 (to survive

summary judgment, the prisoner “need only put forth evidence of retaliatory

motive, that, taken in the light most favorable to him, presents a genuine issue of

material fact as to [the defendant’s] intent.” (internal quotation and citation

omitted)).

      The district court erred in granting summary judgment to defendant Olivarez

because a genuine dispute of material fact exists as to whether Olivarez retaliated

against Bryant by threatening and harassing him and by filing a false report. See

Brodheim, 584 F.3d at 1270 (“[T]he mere threat of harm can be an adverse action,

regardless of whether it is carried out because the threat itself can have a chilling

effect.”); Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (“[W]here a prisoner

alleges a correctional officer has falsely accused him of violating a prison rule in

retaliation for the prisoner’s exercise of his constitutional rights, the correctional

officer’s accusation is not entitled to the ‘some evidence’ standard of review that

we afford disciplinary administrative decisions.”).




                                            3                                     11-55153
      Finally, the district court erred in granting summary judgment to defendant

Jiminez because a genuine dispute of material fact exists as to whether Jiminez

threatened Bryant and knowingly signed a false report in retaliation for Bryant’s

protected activity. See Brodheim, 584 F.3d at 1270 (a threat need not be “explicit

and specific to constitute an adverse action”); Bruce, 351 F.3d at 1288-89 (prison

official’s alleged statements alluding to protected activity as a justification for

adverse action raised triable issue as to retaliatory motive when combined with

suspect timing).

      AFFIRMED in part, REVERSED and REMANDED in part.




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