George M. Pasion v. John A. Haviland;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE M. PASION,
Plaintiff - Appellant,
v.
JOHN A. HAVILAND; et al.,
Defendants - Appellees.
No. 12-16972
D.C. No. 2:10-cv-03227-GGH
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Gregory G. Hollows, Magistrate Judge, Presiding
Argued and Submitted November 20, 2014
San Francisco, California
Before: GOULD and WATFORD, Circuit Judges, and OLIVER, Chief District
Judge.**
1. Plaintiff George Pasion submitted evidence from which a reasonable jury
could infer that Captain R. Cappel acted with a retaliatory motive when he decided
to keep Pasion in administrative segregation.
FILED
DEC 22 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.

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The first piece of evidence Pasion relies on—the allegedly suspect timing of
his placement in administrative segregation—would not suffice standing alone to
avoid summary judgment. One of Cappel’s justifications for keeping Pasion in
administrative segregation was that doing so was necessary in order to protect the
integrity of the prison’s ongoing investigation into Pasion’s excessive force
complaint. If that were so, Pasion argues, he would have been placed in
administrative segregation in July 2008—when he initially filed his
complaint—rather than in February 2009. But the record shows that the prison did
not begin interviewing witnesses until 2009, when Pasion filed his internal appeal,
so there was no investigation to protect until then. The timing of Pasion’s
placement is not necessarily suspect on its own.
The remaining evidence Pasion relies on carries more force. On the record
before us, a reasonable jury could conclude that several of the alternative
justifications Cappel offered for keeping Pasion in administrative segregation were
simply not supported by the facts. In the narrative explanation for his decision, for
example, Cappel stated that because Pasion had lodged an excessive force
complaint, Pasion himself was “a threat to the safety and security of this
institution, its staff and inmates.” Nothing in the record before us supports that
assertion. And Cappel’s other check-box explanations for the placement could also

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be viewed by a reasonable jury as pretextual rather than legitimate, since on the
record before us no facts appear to support them either.
That leaves, as the only plausible justification for Cappel’s decision, his
assertion that Pasion’s return to the general population would jeopardize the
“integrity of an investigation of alleged serious misconduct or criminal activity.”
Once again, no evidence in the record before us supports that stated justification.
There is no indication, for example, that Pasion had taken any steps to interfere
with the investigation, or that the circumstances of Pasion’s case gave rise to a
non-speculative risk that he might attempt to interfere with the investigation. In
the absence of evidence supporting this last asserted justification, a reasonable jury
could conclude that it, too, was pretextual.
It would not be enough for a jury to find that Cappel’s stated justifications
for retaining Pasion in administrative segregation were pretextual. To prevail,
Pasion must also prove that Cappel’s stated justifications were offered to cover up
one particular illegitimate motive—retaliation against Pasion for exercising his
First Amendment rights. See Lacey v. Maricopa Cnty., 693 F.3d 896, 916–17 (9th
Cir. 2012). Pasion has introduced evidence that, if believed by the jury, could
support a judgment in his favor. Both Pasion and Cappel testified that,
immediately before making the decision to retain Pasion in administrative

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segregation, Cappel asked Pasion if he intended to withdraw his complaint. Pasion
testified that Cappel did so “aggressively, with loud tone on his voice,” and that he
inferred that Cappel was threatening to retain him in administrative segregation if
he did not withdraw his complaint.
On this record, a reasonable jury could conclude that Cappel acted with
retaliatory intent. The tone of Cappel’s conversation with Pasion is a material and
disputed fact, and a reasonable jury could rely on the context within which Cappel
questioned Pasion to infer retaliatory intent. According to Pasion, his conversation
with Cappel took place against the background understanding that the prison’s
general policy was to place all complaining inmates in administrative segregation
in order to discourage them from exercising their rights. If a jury were to credit
Pasion’s version of events, Cappel did not need to say much to make Pasion
understand that his return to the general population was conditioned on
withdrawing his complaint.
Accordingly, we vacate the district court’s order granting Cappel’s motion
for summary judgment. We decline to address Cappel’s argument that he is
entitled to summary judgment on the basis of qualified immunity. We remand so
that the district court can consider that issue in the first instance. See Colwell v.
Bannister, 763 F.3d 1060, 1071 n.5 (9th Cir. 2014).

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2. The district court also erred in dismissing Pasion’s claim against
Lieutenant D. McGuire. Pasion alleged that there was “no justification” for
McGuire’s initial decision to place him in the “hole.” Pasion appended to his
complaint the only written explanation provided by McGuire, which came two
weeks after the placement decision. That explanation stated that Pasion was
“placed in Administrative Segregation for the accusation of staff misconduct.”
(Emphasis added.) Given the liberal construction afforded pro se plaintiffs, we
find that Pasion has adequately stated a First Amendment claim of retaliation as to
McGuire.
The district court did not err, however, in dismissing Pasion’s complaint as
to Associate Warden V. Singh. Pasion’s complaint states only that Singh headed
the committee that retained him in administrative segregation and that Singh
“conspired with” Cappel and McGuire. Such conclusory allegations are
insufficient to state a claim on which relief can be granted.
3. The district court did not abuse its discretion in declining to appoint
counsel for Pasion before ruling on Cappel’s summary judgment motion, given the
relatively straightforward nature of the issues raised in that motion. See Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Pasion had no right to counsel in this
suit, and he did not demonstrate that “exceptional circumstances” compelled the

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appointment of counsel under 28 U.S.C. § 1915(e)(1). See id. However, the
district court itself recognized that if the case proceeded past summary judgment,
appointment of counsel might be warranted. On remand, Pasion will be free to
renew his request for appointed counsel.
4. Costs are awarded to the appellant.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART,
AND REMANDED.

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