JS/Panel 

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT LOUGH, 

Plaintiff-Appellant, 

 v. 

WASHINGTON STATE DEPARTMENT 

OF SOCIAL AND HEALTH SERVICES; et 

al., 

Defendants-Appellees.

No. 22-35631 

D.C. No. 3:20-cv-05894-LK 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Lauren J. King, District Judge, Presiding

Submitted August 30, 2023**

Before: BENNETT, SUNG, and H.A. THOMAS, Circuit Judges.

Plaintiff-Appellant Robert Lough appeals pro se the district court’s grant of 

summary judgment to the Washington State Department of Social and Health 

Services, the Washington State Special Commitment Center, and various 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

SEP 1 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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individual state employees (collectively, “Defendants”). Lough filed claims under 

42 U.S.C. § 1983 for, as relevant here, First Amendment retaliation and an alleged 

violation of the Equal Protection Clause of the Fourteenth Amendment. Lough’s 

claims stem from Defendants’ refusal to allow him to purchase a certain printer for 

his legal needs while in civil detention. The district court denied Lough’s partial 

motion for summary judgment and granted Defendants’ cross motion for summary 

judgment. 

We review a district court’s decision on cross motions for summary 

judgment de novo. Csutoras v. Paradise High Sch., 12 F.4th 960, 965 (9th Cir. 

2021). We affirm the district court’s denial of Lough’s motion for summary 

judgment. With respect to the district court’s grant of Defendants’ cross motion for 

summary judgment, we affirm as to the equal protection claim and reverse as to the 

First Amendment retaliation claim.

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1. The district court did not err in denying Plaintiff’s motion for failure to 

properly request summary judgment in accordance with Fed. R. Civ. P. 56. Even if 

we construe Plaintiff’s motion as a petition for mandamus relief, as the district 

court did in the alternative, we do not have jurisdiction to order mandamus relief 

1 The district court raised the issue of the timeliness of Lough’s objections to the 

magistrate judge’s report but still addressed Lough’s objections on the merits. 

Defendants have not argued timeliness on appeal. We therefore focus on the 

merits.
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against State employees regarding the performance of their official duties. See 28 

U.S.C. § 1361.

2. The district court did not err in granting summary judgment in favor of 

Defendants on Lough’s equal protection claim. Even assuming that Lough was 

similarly situated to the only other resident who was allowed to purchase the 

printer, Defendants had a rational basis for the difference in treatment because the 

printer had been erroneously listed in the approved catalogue when the other 

resident purchased it. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) 

(absent proof of membership in a protected class, an individual can only succeed 

on an equal protection claim by demonstrating intentional, differential treatment

that was unsupported by a rational basis).

3. The district court erred in granting summary judgment in favor of 

Defendants on Lough’s First Amendment retaliation claim. “Within the prison 

context, a viable claim of First Amendment retaliation entails five basic 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). The district court erred because a genuine issue of 

material fact exists as to element (2), and the magistrate judge misapplied the 
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relevant substantive law as to element (4). See Soc. Techs. LLC v. Apple Inc., 4 

F.4th 811, 816 (9th Cir. 2021) (explaining that on summary judgment, “viewing 

the evidence in the light most favorable to the non-movant, [we] determine 

whether there are any genuine issues of material fact and whether the district court 

correctly applied the relevant substantive law”).

First, a genuine issue of material fact exists regarding whether Defendants 

transferred Lough because of his First Amendment-protected activity. “A fact issue 

is genuine ‘if the evidence is such that a reasonable jury could return a verdict for 

the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 

(9th Cir. 2002). While we have recognized that “uncorroborated and self-serving” 

testimony alone cannot establish a “genuine issue,” id., that is not the case here. 

The district court discredited as “uncorroborated and self-serving testimony”

Lough’s declaration that he was transferred because of his self-advocacy and 

administrative grievances against Defendants. But unlike in Villiarimo and similar 

cases, Lough’s declaration does not stand alone. 

Lough points to his repeated self-advocacy and grievances against the 

Defendants as evidence to support his retaliation claim. In particular, Lough 

highlights his administrative grievance against Brian Shirley, which Lough filed 

just a few months before his transfer. “We have held that proximity in time may 

support an inference of retaliation sufficient to survive summary judgment.” 
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Anthoine v. N. Cent. Cntys. Consortium, 605 F.3d 740, 751 (9th Cir. 2010); see 

also Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th Cir. 2003) (finding that adverse 

action soon after a prisoner filed grievances supported an inference of retaliatory 

motive).

To argue that Lough’s transfer was not retaliatory, Defendants point solely 

to a competing declaration by Shirley, to whom Lough had repeatedly directed 

complaints regarding his printer request and against whom Lough had filed at least 

one administrative grievance in August 2019. Shirley’s declaration states that “[i]t 

is my recollection that Mr. Lough had been exhibiting aggression towards his 

therapist and the resident advocate” and was issued a behavior report “for yelling 

and cussing at a staff member.” 2 According to Shirley, “the treatment team 

concluded that Mr. Lough needed to be moved from Gingko to the Cedar West 

unit,” and on January 9, 2020, the Placement Committee approved the move. 

Shirley concedes that he was a member of both the treatment team and the 

Placement Committee. Taking the current record evidence in the light most 

favorable to Lough, a reasonable jury could conclude that Shirley, a target of 

Lough’s complaints and administrative grievances, used his influential position on 

2 Neither Shirley nor Defendants provide any other details or corroborating 

information about Lough’s alleged aggression toward his therapist and the resident 

advocate. The behavior report was related solely to Lough’s alleged conduct 

during a census count. 
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Lough’s treatment team and the Placement Committee to cause a retaliatory 

transfer of Lough. Therefore, a material issue of fact precludes summary judgment.

Second, the magistrate judge misapplied the test for First Amendment 

retaliation. The magistrate judge assumed that Lough’s continued litigation activity 

automatically meant that Lough’s protected speech was not chilled, thus defeating 

his First Amendment retaliation claim under the five elements described in Rhodes.

408 F.3d at 567–68. Not so, according to our precedent and Rhodes itself. Under 

Rhodes, a plaintiff’s “allegations that his First Amendment rights were chilled, 

though not necessarily silenced, is enough to perfect his claim.” Id. at 569; see also

Mendocino Env’t Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999)

(“Because 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, we conclude that the proper inquiry asks ‘whether an 

official’s acts would chill or silence a person of ordinary firmness from future First 

Amendment activities.’”). We have consistently held that actual or threatened 

retaliatory transfers while in state detention would chill a person of ordinary 

firmness and thus sufficiently ground a First Amendment retaliation claim. See

Rhodes, 408 F.3d at 568 (collecting cases). The district court therefore erred in 

assuming that Lough had to show that his speech was actually inhibited or 

suppressed. We reverse and remand for proceedings consistent with this 
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disposition.3

AFFIRMED in part, REVERSED AND REMANDED in part.

3 The parties shall bear their own costs on appeal.