United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
PLAINTIFF'S MOTION FOR COSTS, AND REQUESTING JOINT STATUS
BENJAMIN H. SETTLE United States District Judge.
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable Karen
L. Strombom, United States Magistrate Judge (Dkt. 111),
Defendants Richard Morgan, Bernard Warner, Washington
Department of Corrections, and Tobey Whitney's
(“Defendants”) objections to the R&R (Dkt.
113), and Plaintiff Bryan Stetson's
(“Stetson”) motion for costs (Dkt. 112).
April 7, 2017, Judge Strombom issued the R&R recommending
that the Court grant Defendants' motion for summary
judgment in part and deny it in part. Dkt. 111. Judge
Strombom concluded that questions of material fact exist on
Stetson's First Amendment retaliation claim against
Kathryn Bruner and recommends that the claim proceed to
trial. Id. On April 18, 2017, Stetson
filed a motion for costs. Dkt. 112. On April 21, 2017,
Defendants filed objections to the R&R. Dkt. 113. On
April 27, 2014, Stetson responded to Defendants'
objections. Dkt. 114. On May 5, 2017, Defendants responded to
Stetson's motion. Dkt. 115.
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
case, Defendants object to the R&R arguing that Stetson
has failed to submit sufficient evidence to create a material
question of fact on every element of his retaliation claim.
To state a viable First Amendment retaliation claim, a
prisoner must allege five elements: “(1) An 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.” Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Defendants contend that Stetson has failed to claim that his
transfer to another unit “caused him any injury.”
Dkt. 113 at 3. Specifically, Defendants contend that Stetson
“has not alleged that his First Amendment rights were
chilled or infringed.” Id. Defendants'
representation to the Court is factually incorrect because,
in his complaint, Stetson alleges that Bruner's actions
violated his “First Amendment right, acting to chill
said right . . . .” Dkt. 8, ¶ 24. Defendants also
contend that Stetson's rights were not chilled because he
continued to file grievances after the alleged retaliatory
transfer. Dkt. 113 at 3. The Ninth Circuit has explicitly
rejected this argument “[b]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, [a plaintiff] does not
have to demonstrate that his speech was actually inhibited or
suppressed.” Rhodes, 408 F.3d at 569.
Therefore, Defendants' arguments are without merit.
Defendants argue that “the R&R incorrectly
concludes that Bruner's alleged statements to Plaintiff
during a grievance investigation in November 2012 were an
adverse action in this case.” Dkt. 113 at 3. Defendants
assert that the “alleged statement itself is not the
‘adverse action' at issue in this case.”
While Defendants may be correct that the alleged threat is
not the only “adverse action” in this case,
Stetson has repeatedly argued that the threat in conjunction
with the transfer acted to chill his speech. See,
e.g., Dkt. 107 at 15. The Court agrees with
Judge Strombom that the conjunction of the two events is
sufficient to create questions of fact on this issue.
Defendants contend that Stetson's other claims of harm
are not properly before the Court because he improperly
presented them in a surreply. Dkt. 113 at 3-4. While a
surreply is an improper method to present new evidence or
argument, Stetson has sufficiently submitted evidence of an
adverse action and harm to overcome Defendants' motion
for summary judgment on this claim. Thus, Defendants'
objections should be addressed in pre-trial motions limiting
evidence that may go to the jury. Taking the facts in the
light most favorable to Stetson, the Court adopts the R&R
on this claim.
Motion for Costs
April 18, 2017, Stetson submitted a bill of costs for his
retaliation claim. Dkt. 112. Defendants contend that the
motion is premature because a judgment has not been rendered.
Dkt. 115. The Court agrees with Defendants and denies
Stetson's motion without prejudice. See Fed. R.
Civ. P. 54(d).
the Court having considered the R&R, Defendants'
objections, Stetson's motion, and the remaining record,
does hereby find and order as follows:
R&R is ADOPTED;
Defendants' motion for summary judgment (Dkt. 101) is