                                                      130 Nev, Advance Opinion 25
                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                   RANDALL GEORGE ANGEL,                                  No. 59278
                   Appellant,
                   vs.                                                            FILED
                   MICHAEL CRUSE,
                   Respondent.                                                    APR 0 3 2014
                                                                                TRA LE K. LINDEMAN
                                                                             CLE    F SUERE-MECD1
                                                                             BY
                                                                                   F DE t Y CLERK
                                                                                       k..j

                               Proper person appeal from a district court summary judgment
                   in a civil rights action. First Judicial District Court, Carson City; James
                   Todd Russell, Judge.
                               Reversed and remanded.

                   Randall George Angel, Reno,
                   in Proper Person.

                   Catherine Cortez Masto, Attorney General, and Clark G. Leslie, Senior
                   Deputy Attorney General, Carson City,
                   for Respondent.




                   BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.

                                                    OPINION
                   By the Court, CHERRY, J.:
                               In this appeal, we consider whether the district court erred by
                   granting summary judgment to respondent in a civil rights action alleging
                   retaliation in response to appellant's exercise of his rights under the First
                   Amendment to the United States Constitution. Because we conclude that
                   genuine issues of material fact existed with regard to several elements of
                   the retaliation claim, we reverse the summary judgment and remand this
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                   matter to the district court for further proceedings consistent with this
                   opinion.
                                                 BACKGROUND
                               In the district court, proper person appellant Randall George
                   Angel, then an inmate, filed a civil rights complaint against respondent
                   corrections officer Michael Cruse, in his individual capacity only. In the
                   complaint, Angel alleged that Cruse had violated his civil rights by filing a
                   disciplinary charge against him and having him placed in administrative
                   segregation in retaliation for Angel attempting to file a grievance against
                   Cruse. Specifically, Angel asserted that he was filling out a grievance
                   form when Cruse asked him what he was doing. Angel maintains that his
                   response was, "you violated my constitutional right and I'm going to make
                   you pay for it." Cruse then stopped Angel from completing the grievance,
                   handcuffed him, and escorted him to a senior officer's office. According to
                   Angel, he was then placed in administrative segregation and charged with
                   threatening Cruse. The charge was upheld following a disciplinary
                   hearing.
                               Cruse subsequently filed a motion for summary judgment on
                   Angel's complaint in which he largely did not dispute the• sequence of
                   events set forth by Angel But he asserted that, rather than saying "you
                   violated my constitutional rights and I'm going to make you pay for it,"
                   Angel had actually threatened him by saying, "I'll get you, believe me
                   you're going to get yours." Cruse argued that the adverse action taken
                   against Angel following this exchange was carried out in response to this
                   threat and not because Angel was attempting to file a grievance against
                   him. Thus, Cruse contended that the adverse action was taken for a
                   nonretaliatory purpose and that it advanced the legitimate correctional

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                  goal of institutional security. Cruse further argued that the adverse
                  action had not chilled Angel's exercise of his First Amendment rights, as
                  demonstrated by the fact that Angel had continued to file grievances
                  related to this and other unrelated 'incidents. Alternatively, Cruse
                  asserted that he was entitled to qualified immunity because he could not
                  have known that the adverse action violated Angel's constitutional rights.
                              Angel opposed the summary judgment motion, again asserting
                  that Cruse had prevented him from completing the grievance and falsely
                  charged him with making threats in retaliation for his attempt to file the
                  grievance. Angel disputed Cruse's contentions regarding his reason for
                  taking action against Angel, the action's chilling effects, and Cruse's
                  entitlement to qualified immunity. In support of his opposition, Angel
                  submitted an affidavit detailing his version of the events leading up to the
                  adverse action, including his assertion that what he had said to Cruse
                  was, "you violated my constitutional right and I'm going to make you pay
                  for it." He further attested that this statement was not a threat and that
                  Cruse had falsely charged him with issuing a threat in retaliation for
                  attempting to file the grievance. Cruse filed a reply to Angel's opposition,
                  reiterating his arguments in support of summary judgment.
                              The district court subsequently granted summary judgment to
                  Cruse,' finding that the evidence demonstrated that Angel was
                  handcuffed, placed in administrative segregation, and charged with




                        'The district court also dismissed any claims against Cruse in his
                  official capacity. As the complaint only named Cruse in his individual
                  capacity, this dismissal was unnecessary, and is therefore not addressed
                  further in this opinion.

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                issuing threats because he had actually threatened Cruse by saying, "I'll
                get you, believe me you're going to get yours." The court also found that,
                even if Cruse took this action because of Angel's attempt to file the
                grievance, Angel could not demonstrate that it had a chilling effect when
                he had continued to file grievances related to this and other incidents.
                The district court further concluded that, regardless of the first two
                findings, the undisputed evidence established that Cruse took action
                against Angel for the legitimate penological purpose of ensuring
                institutional security. Thus, the court concluded that Cruse was entitled
                to judgment as a matter of law with regard to the retaliation claim.
                Alternatively, the court found that Cruse was entitled to qualified
                immunity because, "[elven assuming for the sake of argument that a
                violation occurred, as a matter of law, Defendant Cruse could not have
                reasonably known that the actions he took, pursuant to administrative
                regulations, as a result of [Angell threatening him violated established
                statutory or constitutional rights." This appeal followed. 2




                      20n appeal, Angel argues that this court lacks jurisdiction over his
                appeal because his claims against corrections officer Patrick McNamara
                were not resolved, and thus, a final judgment was not entered below. But
                the district court record demonstrates that McNamara was never made a
                party in district court because he was not served with process. See Valley
                Bank of Nev. v. Ginsburg, 110 Nev. 440, 448, 874 P.2d 729, 735 (1994)
                (explaining that a person who is not served with process and does not
                make an appearance in the district court is not a party to that action). As
                a result, the judgment in this matter was final and appealable, and we
                therefore have jurisdiction to consider this appeal. See NRAP 3A(b)(1)
                (providing for an appeal from a final judgment).

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                                                DISCUSSION
                 Standard of review
                               This court reviews a district court summary judgment de novo,
                 without deference to the district court's findings.   Wood v. Safeway, Inc.,
                 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment was
                 appropriate in this case if the pleadings and other evidence presented,
                 viewed in the light most favorable to Angel, demonstrated that Cruse was
                 entitled to judgment as a matter of law and that no genuine issues of fact
                 remained in dispute. Id.
                 Retaliation
                               On appeal, Angel argues that there were genuine issues of fact
                 remaining that precluded summary judgment on his retaliation claim. 3
                 Cruse, on the other hand, asserts that the undisputed evidence
                 demonstrated that he took action against Angel in response to a threat
                 and not in retaliation for Angel's attempt to file a grievance against him.
                 Cruse further contends that the action taken against Angel did not chill
                 Angel's exercise of his First Amendment rights and that it was taken to
                 advance the legitimate correctional goal of prison safety. 4


                       3 Both in the district court and in this court, Angel sometimes
                 discussed his claim in terms of a denial-of-access-to-the-courts issue.
                 Although Angel's complaint alleged that Cruse stopped him from filing his
                 grievance at the time that he intended to file it, he did not assert that he
                 was unable to file the grievance at a later time, and thus, he did not state
                 a claim for denial of access to the courts. See Lewis v. Casey, 518 U.S. 343,
                 349-55 (1996) (holding that a prisoner seeking to state a denial-of-access-
                 to-the-courts claim must demonstrate actual injury by showing that he or
                 she was hindered in attempting to pursue a legal claim). Thus, we limit
                 our discussion in this opinion to Angel's retaliation claim.

                       4 1n
                         his initial response, Cruse asked this court to apply the "some
                 evidence" standard discussed in        Superintendent, Massachusetts
                                                                 continued on next page...
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                             A prisoner alleging retaliation for the exercise of his or her
                 First Amendment rights must demonstrate that (1) the prisoner engaged
                 in protected conduct, (2) a state actor took adverse action against the
                 prisoner, (3) the adverse action was taken because of the prisoner's
                 protected conduct, (4) the adverse action had a chilling effect on the
                 prisoner's protected conduct, and (5) the adverse action did not reasonably
                 advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559,
                 567-68 (9th Cir. 2004). Cruse does not dispute that Angel engaged in
                 protected conduct or that he took adverse action against Angel Instead,
                 he contends that the adverse action was not taken because of the protected
                 conduct, Angel's exercise of his First Amendment rights was not chilled,
                 and the adverse action advanced a legitimate correctional goal. As the
                 considerations underlying whether Cruse took action against Angel
                 because of Angel's exercise of protected conduct and whether that action
                 advanced a legitimate correctional goal are related, we discuss those
                 issues first before turning to whether the action had a chilling effect.




                 ...continued
                 Correctional Institution at Walpole v. Hill, 472 U.S. 445, 455 (1985)
                 (holding that "the requirements of due process are satisfied if some
                 evidence supports the decision by the prison disciplinary board to revoke
                 good time credits"), to uphold the district court's grant of summary
                 judgment with regard to the decision to find Angel guilty after a
                 disciplinary hearing. Angel's claims with regard to the disciplinary
                 hearing, however, applied to McNamara, who, as noted above, was never
                 made a proper party to the district court's action and is thus not a party to
                 this appeal. Because the "some evidence" standard does not apply to a
                 corrections officer's initial accusation that a prisoner violated a rule when
                 the prisoner argues that the accusation was false and retaliatory, Hines v.
                 Gomez, 108 F.3d 265, 268-69 (9th Cir. 1997), we do not apply it here.

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                Whether the action was taken because of Angel's protected conduct
                            Cruse argues that Angel failed to submit any evidence
                creating a genuine issue of fact as to whether Cruse took action against
                Angel in response to Angel's filing of the grievance, as opposed to his
                threatening of Cruse. "To prevail on a retaliation claim, a plaintiff must
                show that his protected conduct was the substantial or motivating factor
                behind the defendant's conduct."    Brodheim v. Cry, 584 F.3d 1262, 1271
                (9th Cir. 2009) (internal quotation marks omitted). To survive summary
                judgment on this element of a retaliation claim, a prisoner only has to
                submit evidence of a retaliatory motive sufficient to create a factual issue
                in this regard.   Id.   While the timing of a punishment alone is not
                sufficient to establish motivation, it may be circumstantial evidence of
                motivation. See Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003).
                            Initially, contrary to Cruse's contention that Angel failed to
                submit any evidence in support of his opposition to summary judgment,
                Angel did submit his own affidavit, sworn under the penalty of perjury, to
                support his opposition. In that affidavit, Angel asserted that, in response
                to Cruse asking why he was filling out the grievance, Angel had stated,
                 you violated my constitutional right and I'm going to make you pay for it."
                He further attested that this was not a threat and that Cruse had falsely
                charged him with issuing a threat in retaliation for attempting to file the
                grievance. Despite the submission of this evidence by Angel, the district
                court accepted Cruse's version of events, finding that Angel had
                threatened Cruse by saying, "I'll get you, believe me you're going to get
                yours." In so doing, the district court failed to properly apply the well-
                established standard for evaluating summary judgment motions, which
                required it to construe the evidence in Angel's favor.   See Wood, 121 Nev.

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                at 732, 121 P.3d at 1031. Instead, by accepting Cruse's characterization of
                Angel's statement, the court construed the evidence against Angel.
                            Accepting Angel's version of the events, Angel said, in
                response to Cruse asking him why he was filling out a grievance, that
                Cruse had violated his rights and would have to pay for that violation.
                While Angel's statement that he would make Cruse pay for violating his
                constitutional rights was literally a threat insofar as Angel communicated
                an intent to inflict loss on Cruse, see Black's Law Dictionary 1618 (9th ed.
                2009) (defining "threat" as "[a] communicated intent to inflict harm or loss
                on another or on another's property, esp[ecially] one that might diminish a
                person's freedom to act voluntarily or with lawful consent"), viewing the
                circumstances in the light most favorable to Angel, a reasonable person
                could conclude that Cruse's actions were actually a response to Angel's
                stated intent to file the grievance against Cruse, rather than a response to
                a purported security threat. In particular, Angel's version of the
                statement arguably only communicated to Cruse that Angel intended to
                pursue the grievance, a protected activity, and did not imply any intent to
                engage in acts of violence or other improper activity on Angel's part.
                Moreover, Cruse's adverse action took place while Angel was actually in
                the process of filling out the grievance.    See Bruce, 351 F.3d at 1288
                (recognizing that the timing of a punishment may provide circumstantial
                evidence of a retaliatory motive). Construing this set of facts in Angel's
                favor, we conclude that the evidence was sufficient to raise a genuine issue
                of material fact with regard to whether the adverse action was taken
                against Angel because of his exercise of protected conduct.
                Whether the action advanced a legitimate correctional goal
                            With regard to whether the action taken against Angel
                advanced a legitimate correctional goal, to the extent that Cruse actually
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                handcuffed and removed Angel because Angel made a threat, such an
                action could, at least arguably, be seen as promoting prison safety, which
                is a legitimate concern for a correctional facility. See Turner v. Salley, 482
                U.S. 78, 91 (1987) (recognizing prison security as a legitimate concern for
                a correctional institution). But if a factual inquiry revealed that Angel's
                statement was no more than a communication that Angel intended to seek
                legal relief through the grievance process and that Cruse took the adverse
                action because Angel was exercising his right to file a grievance, then it
                would follow that the action was not taken out of a concern for prison
                safety. See Rhodes, 408 F.3d at 567-68 (explaining that a retaliation claim
                may be valid when the adverse action "did not reasonably advance a
                legitimate correctional goal"). Thus, for the same reason that a genuine
                issue of material fact remains with regard to Cruse's motivation, a factual
                issue also remains as to whether the action taken by Cruse served a
                legitimate correctional goal.
                Chilling effect
                             As for the requirement that the adverse action have a chilling
                effect, Cruse contends that the undisputed evidence demonstrated that
                Angel's exercise of his First Amendment rights was not chilled because he
                continued to file grievances related to this and other incidents. While a
                prisoner stating a First Amendment retaliation claim must show that the
                adverse action "chilled the inmate's exercise of his First Amendment
                rights," in Rhodes, the United States Court of Appeals for the Ninth
                Circuit discussed the difficulties an inmate faces in establishing this
                element if a subjective standard is used to evaluate it, i.e., if the court
                considers whether the inmate himself or herself has actually been
                deterred from engaging in protected conduct by the adverse action. 408
                F.3d at 567-69. In Rhodes, the lower court had dismissed the inmate's
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                    retaliation claim based on its conclusion that his filing of the lawsuit
                    demonstrated that the inmate's exercise of his First Amendment rights
                    had not been chilled. Id. at 566. But on appeal, the Rhodes court held
                    that lb] ecause it would be unjust to allow a defendant to escape liability
                    for a First Amendment violation merely because an unusually determined
                    plaintiff persists in his protected activity, [an inmate plaintiff] does not
                    have to demonstrate that his speech was actually inhibited or suppressed."
                    Id. (internal quotation marks omitted). Instead, the proper question was
                    whether the adverse action "would chill or silence a person of ordinary
                    firmness from future First Amendment activities." Id. at 568 (emphasis
                    added) (internal quotation marks omitted); see also Brodheim, 584 F.3d at
                    1271 (applying this objective standard to a prisoner's First Amendment
                    retaliation claim).
                                 Here, the district court applied a subjective standard,
                    concluding that because Angel had continued to use the grievance process,
                    he could not show that Cruse's actions had a chilling effect on his exercise
                    of his First Amendment rights. But under Rhodes, the district court
                    should have applied an objective standard, asking whether. Cruse's actions
                    would have had a chilling effect on "a person of ordinary firmness."     See
                    Rhodes, 408 F.3d at 568. And because Cruse did not make any arguments
                    or present any evidence to demonstrate that Angel could not meet this
                    objective standard, the grant of summary judgment on this element of
                    Angel's claim was improper. See id. at 569.
                                 As there were genuine issues of material fact remaining with
                    regard to each of the disputed elements of Angel's retaliation claim, the
                    district court erred by concluding that Cruse was entitled to summary
                    judgment on this claim. See Wood, 121 Nev. at 729, 121 P.3d at 1029.

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                Nevertheless, if the district court correctly determined that Cruse was
                entitled to qualified immunity, we may affirm the court's decision on that
                basis. Thus, we now consider whether Cruse was entitled to qualified
                immunity.
                Qualified immunity
                            In concluding that Cruse was entitled to qualified immunity,
                the district court found that le]ven assuming for the sake of argument
                that a violation occurred, as a matter of law, Defendant Cruse could not
                have reasonably known that the actions he took, pursuant to
                administrative regulations, as a result of [Angel] threatening him violated
                established statutory or constitutional rights." But this conclusion
                assumes that Cruse took the actions because of the purported threat, and
                not in retaliation for Angel's attempt to file the grievance. And as
                discussed above, a genuine issue of fact exists with regard to the
                motivation behind Cruse's actions.
                            To the extent that Cruse may have taken action against Angel
                in retaliation for filing the grievance, the Ninth Circuit has recognized
                "that the prohibition against retaliatory punishment is clearly established
                law. . . for qualified immunity purposes."      Rhodes, 408 F.3d at 569
                (internal quotation marks omitted). Thus, if it is determined that Cruse
                took action against Angel in retaliation for Angel's exercise of his First
                Amendment right to file a grievance, such action was in violation of clearly
                established law, and Cruse was not entitled to qualified immunity. See id.
                We therefore conclude that granting summary judgment to Cruse on
                qualified immunity grounds was inappropriate. See id.
                                              CONCLUSION
                            As detailed above, there were genuine issues of material fact
                remaining with regard to each of the disputed elements of the retaliation
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                      claim and with regard to Cruse's entitlement to qualified immunity.
                      Accordingly, we reverse the district court's order granting summary
                      judgment to Cruse and remand this matter to the district court for further
                      proceedings consistent with this opinion.



                                                                  DLL,
                                                                  Cherry


                      We concur:


                                                   J.
                      Hardesty



                      Parraguirre




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