                                                                           FILED
                                                                           APR 26 2017
                           NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


MICHAEL A. HUNT,                                 No.   15-15368

              Plaintiff-Appellant,               D.C. No.
                                                 2:08-cv-00181-MCE-CKD
 v.

D. RIOS; D. FIELDS,                              MEMORANDUM*

              Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                     Argued and Submitted February 13, 2017
                            San Francisco, California

Before: BERZON and CLIFTON, Circuit Judges, and LASNIK,** District Judge.

      Michael A. Hunt, a prison inmate claiming retaliation in violation of the

First Amendment, appeals the district court’s order granting summary judgment to

Correctional Officer Debra Fields and the district court’s final judgment in favor of

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
Correctional Sergeant David Rios. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm in part, reverse in part, and remand.

      1. The district court did not err in granting summary judgment to Officer

Fields. A prisoner makes out a retaliation claim if he shows that a state actor took

an adverse action against him because of his prison grievance or lawsuit; that such

adverse action would have chilled a person of ordinary firmness from exercising

his First Amendment rights; and that the action did not reasonably advance a

legitimate correctional goal. Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir.

2009); Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). Mr. Hunt failed

to introduce evidence creating a genuine issue of fact regarding whether Officer

Fields had a retaliatory motive for filing a report linking Mr. Hunt to the Bloods

disruptive group. See Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th Cir. 2003).

Accordingly, summary judgment was proper.

      2. The district court did not abuse its discretion in denying Mr. Hunt’s

motion to appoint counsel. Mr. Hunt proved himself to be a capable pro se

litigator throughout the proceedings in the district court and demonstrated an

“ability to articulate his claims ‘in light of the complexity of the legal issues

involved.’” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)

(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). The district


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court cited cases that recite the relevant legal standards, and it stated its conclusion

that the case was not an exceptional case warranting appointed counsel. Cf. Solis v.

Cty. of L.A., 514 F.3d 946, 958 (9th Cir. 2008) (concluding that it was not possible

to review a denial of a motion to appoint counsel when the district court

completely failed to articulate its reasoning). This conclusion was within the

district court’s sound discretion.1

      3. The cumulative effect of several legal errors at trial prejudiced Mr.

Hunt’s pro se case against Sergeant Rios. See Jerden v. Amstutz, 430 F.3d 1231,

1240–41 (9th Cir. 2006). Accordingly, we reverse the district court’s judgment in

favor of Sergeant Rios and remand.

      First, the district court erroneously instructed the jury that Mr. Hunt needed

to prove “that the [defendant’s] acts or omissions were so closely related to the

deprivation of Plaintiff’s rights as to be the moving force that caused the ultimate

injury,” in addition to correctly instructing the jury that Mr. Hunt needed to prove

that his prison grievance was “a substantial or motivating factor for [Sergeant

Rios’s] adverse action.” The “moving force” standard applies in the context of



      1
         Mr. Hunt was ably represented on appeal by court-appointed pro bono
counsel: Matthew I. Kreeger and Grant C. Schrader of Morrison & Foerster LLP.
At oral argument, Mr. Schrader represented that he and Mr. Kreeger are prepared
to represent Mr. Hunt in future trial court proceedings.
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municipal liability under Monell v. Department of Social Services, 436 U.S. 658

(1978), to determine who or what caused the constitutional injury, not in retaliation

cases such as this, see, e.g., O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016).

      Second, the district court erroneously instructed the jury that the injury

element of the retaliation claim required proof that “the adverse action chilled

Plaintiff’s exercise of protected rights” – a subjective standard rather than the

objective one required by law. See Brodheim, 584 F.3d at 1271; Rhodes, 408 F.3d

at 568–69.

      Third, the district court abused its discretion by foreclosing Mr. Hunt’s

efforts to cross-examine Officer Fields, the sole non-party witness, regarding

possible bias resulting from her involvement as a defendant in another retaliation

lawsuit filed by Mr. Hunt, in which Mr. Hunt had prevailed. Absent cross-

examination on this subject, the jury lacked sufficient information to appraise

Officer Fields’s biases and motives. See Lewy v. S. Pac. Transp. Co., 799 F.2d

1281, 1298 (9th Cir. 1986).

      Though Mr. Hunt did not formally object to these errors at trial, he presented

the correct jury instruction regarding the “chilling” standard in his two pretrial

statements and in his proposed jury instructions. And the district court itself

already had articulated the correct “chilling” standard in this case: in denying the

                                           4
officers’ motion to dismiss, the district court corrected the officers’ erroneous

reliance on a subjective “chilling” standard, citing the proper objective standard

from Brodheim, 584 F.3d at 1271. Moreover, the then-operative model jury

instruction for causation in a Section 1983 suit, which used the “moving force”

formulation, specifically instructed courts not to use that instruction in the context

of a First Amendment retaliation claim. Ninth Cir. Model Civil Jury Instr. § 9.8

cmt. (2007 ed., approved Oct. 2009). Accordingly, we may review the district

court’s instructional errors de novo. See Chess v. Dovey, 790 F.3d 961, 970–72

(9th Cir. 2015); Wilkerson v. Wheeler, 772 F.3d 834, 840 n.4 (9th Cir. 2014).

Doing so, we conclude that Sergeant Rios has not carried his burden to show that

these errors were more probably than not harmless. See Clem v. Lomeli, 566 F.3d

1177, 1182 (9th Cir. 2009).

      Even if we reviewed for plain error, it is likely that these evident errors,

cumulatively, affected Mr. Hunt’s substantial rights, particularly given defense

counsel’s reliance on the instructional errors in closing argument. See C.B. v. City

of Sonora, 769 F.3d 1005, 1016–18 (9th Cir. 2014) (en banc); Jerden, 430 F.3d at

1240–41. Because these cumulative errors also “seriously impaired the fairness,

integrity, or public reputation of judicial proceedings,” the plain error standard is




                                           5
likely met. See City of Sonora, 769 F.3d at 1019 (quoting Diaz-Fonseca v. Puerto

Rico, 451 F.3d 13, 36 (1st Cir. 2006)).

      Accordingly, we reverse the district court’s judgment in favor of Sergeant

Rios and remand for further proceedings consistent with this disposition.

      AFFIRMED in part, REVERSED in part, and REMANDED.

             Each party shall bear their own costs.




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