NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 28 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 CHARLES T. CLAGETT, III, AKA                    No.    14-55051
 Charles Thomas Clagett, III,
                                                 D.C. No.
                 Plaintiff-Appellant,            2:08-cv-06251-JFW-MAN

   v.
                                                 MEMORANDUM *
 J. WOODRING, Terminal Island FCI; et
 al.,

                 Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                     Argued and Submitted November 8, 2016
                              Pasadena, California

Before: BERZON, CHRISTEN, and NGUYEN, Circuit Judges.

   Charles T. Clagett III appeals the district court’s grant of summary judgment to

several prison employees, who he claims violated his constitutional rights and were

therefore liable under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C. § 1291.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Reviewing de novo, Metro. Life Ins. Co. v. Parker, 436 F.3d 1109, 1113 (9th Cir.

2006), we affirm in part and reverse in part.

   1. We reverse the district court’s grant of summary judgment to Joseph

Woodring, a former warden, and Robert Young, a former associate warden, on

Clagett’s First Amendment claim for retaliation. In the prison context, Clagett

must establish the following elements regarding this claim: “(1) [a]n 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). The district court found that Clagett raised a genuine dispute regarding the

first four elements but that he failed to show the lack of a legitimate penological

goal for his reassignment. We disagree.

      Defendants claim that Clagett was reassigned from the education department

to food service due to the suspicions of prison staff that he was improperly

performing legal work in the prison law library. While this would be a legitimate

penological interest if found to be true, see Pratt v. Rowland, 65 F.3d 802, 807 (9th

Cir. 1995), Clagett’s evidence raises a genuine dispute as to whether Defendants’

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true motivation for the transfer was retaliation for filing grievances and an earlier

iteration of this lawsuit. Clagett’s transfer occurred shortly after his administrative

complaint was denied and shortly after he filed his complaint in this action.

Clagett also declares that Woodring threatened him for filing grievances on the

morning of the day he was transferred; that the head of the education department

told him his performance was excellent and that the transfer decision had been

made by higher-level staff; and that medical staff told him that they were pressured

to clear him for the new position in food service.

      Defendants countered with several declarations that hint at misconduct by

Clagett, but these declarations are too vague to support a grant of summary

judgment in favor of Defendants. For example, Young said that he learned of

Clagett’s misconduct through Woodring—who in turn had learned of it from

education department staff—but Woodring had no recollection of Clagett’s

transfer. No declarant from the education department claims to have ever told

Woodring about Clagett’s misconduct. No staff member claims to know who

actually initiated Clagett’s transfer. Lastly, no staff member suggests why, after a

stint in food service, Clagett was transferred back to the education department even

though he had supposedly engaged in misconduct in his previous stint there.

                                           3
Defendants’ evidence does not dispel a genuine dispute about whether there was a

legitimate penological goal for Clagett’s reassignment.

    2. We affirm the district court’s grant of summary judgment to Dr. Evelyn

Castro on Clagett’s Eighth Amendment claim. To prove an Eighth Amendment

violation for inadequate health care, Clagett must show that Dr. Castro was

deliberately indifferent to his serious medical needs, see Estelle v. Gamble, 429
U.S. 97, 104 (1976), when she cleared him for food service work. While Clagett

was previously ineligible for food service due to his hepatitis diagnoses, that

ineligibility was no longer the case due to a policy change. Further, other inmates

with serious physical limitations worked in food service, including those with

walkers and in wheelchairs. Clagett alleges that he suffered distress from the

specific assignment he received, which forced him to stand and bend. Dr. Castro,

however, had no authority over specific assignments within food service. Her

action was limited to medically clearing Clagett for assignment to food service and

therefore did not constitute deliberate indifference. 1


1
 We note that Clagett’s replacement brief did not challenge the district court’s
grant of summary judgment on all claims against Pratap Misra, as well as several
of Clagett’s other claims: a First Amendment claim against Castro; an Eighth
Amendment claim against Woodring and Young; and Fifth Amendment claims

                                           4
      AFFIRMED IN PART AND REVERSED IN PART.




related to the inadequate provision of bedding materials. We therefore need not
address them here.

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