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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

DARRYL BURGHARDT,

Plaintiff,

v.

J. FRANZ, et al.,

Defendants.

Case No. 17-cv-00339-BLF 

ORDER GRANTING IN PART AND 

DENYING IN PART PARTIAL 

MOTION FOR SUMMARY 

JUDGMENT

[Re: ECF No. 98]

In this case, Plaintiff Darryl Burghardt brings three claims under 42 U.S.C. § 1983 for 

alleged violations of his First and Eighth Amendment rights during his incarceration at Pelican 

Bay State Prison. This order resolves a motion for partial summary judgment brought by 

Defendants J. Franz, G. Kelley, and K. Bragger. See ECF No. 98 (“MSJ”); see also ECF No. 105 

(“Reply”). Burghardt partially opposes the motion. See ECF No. 103 (“Opp.”). The Court held a 

hearing on this motion on June 16, 2022. For the reasons stated below, the Court GRANTS IN 

PART AND DENIES IN PART the motion for partial summary judgment.

“A party is entitled to summary judgment if the ‘movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 

Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. P. 

56(a)). A fact is “material” if it “might affect the outcome of the suit under the governing law,” 

and a dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable trier 

of fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). The party moving for summary judgment bears the initial burden of “produc[ing]

evidence negating an essential element of the nonmoving party’s claim or defense or show[ing]

that the nonmoving party does not have enough evidence of an essential element to carry its 

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ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 

1099, 1102 (9th Cir. 2000). If the moving party meets its initial burden, the burden shifts to the 

nonmoving party to produce evidence supporting its claims or defenses. Id. at 1103. If the 

nonmoving party does not produce evidence to show a genuine issue of material fact, the moving 

party is entitled to summary judgment. Celotex, 477 U.S. at 323. “The court must view the 

evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the 

nonmovant’s favor.” City of Pomona, 750 F.3d at 1049. In judging evidence at the summary 

judgment stage, the Court “does not assess credibility or weigh the evidence, but simply 

determines whether there is a genuine factual issue for trial.” House v. Bell, 547 U.S. 518, 559-60 

(2006). 

As an initial matter, Burghardt does not oppose Defendants’ motion for summary judgment 

as to (1) claims 1 and 2 against Defendant Kelley, and (2) claim 3 as to Defendant Bragger. See

Opp. at 1 n.2. Accordingly, Defendants’ motion for partial summary judgment will be 

GRANTED on those claims as to those Defendants, and Defendants Kelley and Bragger will be 

DISMISSED from the case.

The only remaining issue is whether Officer Franz is entitled to summary judgment on 

claim 1 regarding an incident on August 27, 2012.1 On that date, Burghardt requested that Officer 

Franz provide him with a grievance form. ECF No. 103-2 (“Burghardt Dep.”) 17:6–11; ECF No. 

98-3 (“Franz Decl.”) ¶ 3. After Officer Franz informed him that he did not have any forms,

Burghardt asked to speak to Officer Franz’s supervisor, but Officer Franz refused. Burghardt Dep. 

17:12–21; Franz Decl. ¶ 3. To get the attention of a supervisor, Burghardt refused to relinquish 

his food tray. Burghardt Dep. 17:22–23, 21:18–20. After Burghardt refused to give up his food 

tray, Burghardt says that Officer Franz said words to the effect of, “You’re asking for the form. 

You’re lucky you’re eating.” or, “You’re lucky if you eat tomorrow.” Id. 23:12–19. Burghardt 

interpreted these statements as threats that he would not be allowed to eat if he sought to file a 

1 Officer Franz does not move for summary judgment on claims 1 or 2 regarding an incident on 

September 14, 2012 in which Officer Franz closed a food port on Burghardt’s hand. See Opp. at 1 

n.1.

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grievance against Officer Franz. Id. 23:7–9. Officer Franz says that after numerous verbal 

attempts to get the tray from Burghardt, he told Burghardt that he would be placed on paper-tray 

status and that he would not receive his evening meal unless he relinquished the tray. Franz Decl.

¶ 3. After Officer Franz’s shift was over, Burghardt returned his food tray, and the next day he 

received and submitted a grievance form against Officer Franz for the threats. Burghardt Dep. 

26:22–27:16; ECF No. 98-9 at DEF000580 (complaint form). Officer Franz also wrote a Rules 

Violation Report on Burghardt for his failure to obey a direct order to relinquish his food tray. 

Franz Decl. ¶ 4. No food was withheld from Burghardt. Burghardt Dep. 23:20–25.

Officer Franz argues that he is entitled to qualified immunity for the course of conduct on 

August 12 because no reasonable jury could find that his statement amounted to a threat of 

retaliation. MSJ at 14–17; Reply at 2–3. Burghardt maintains that there is a genuine dispute of 

material fact as to whether the statement amounts to a threat of retaliation, so Officer Franz is not 

entitled to qualified immunity. See Opp. at 5–8.

“The doctrine of qualified immunity protects government officials from liability for civil 

damages ‘unless a plaintiff pleads facts showing (1) that the official violated a statutory or 

constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged 

conduct.’” Wood v. Moss, 572 U.S. 744, 745 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 

735 (2011)). On the first prong, the Court examines whether, “taken in the light most favorable to 

the party asserting the injury, [ ] the facts alleged show the officer's conduct violated a 

constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). On the second prong, the Court 

looks to whether the constitutional right was “clearly established”—that is, “whether it would be 

clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 

202. “The clearly established right must be defined with specificity.” City of Escondido v. 

Emmons, 139 S. Ct. 500, 503 (2019). A court may exercise discretion in determining the order of 

analyzing the two prongs. Pearson v. Callahan, 555 U.S. 223, 241–42 (2009).

The parties agree that at prong two, it was clearly established by 2012 that a mere threat of 

harm, regardless of whether it was carried out, can amount to an adverse action for a First 

Amendment retaliation claim. See Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (“[A] 

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retaliation claim may assert an injury no more tangible than a chilling effect on First Amendment 

rights.”); Opp. at 8; Reply at 2. The dispute for this motion is at prong one—whether Officer 

Franz’s statement amounted to a threat of retaliation such that he violated Burghardt’s First 

Amendment rights. The Court finds that, taking the facts in the light most favorable to Burghardt, 

Officer Franz made statements “that a reasonable factfinder could . . . interpret as intimating that 

some form of punishment or adverse regulatory action would follow.” Brodheim, 584 F.3d at 

1270 (quoting Okwedy v. Molinari, 333 F.3d 339, 343 (2d Cir. 2003)). The statements, “You’re 

lucky you’re eating” and “You’re lucky if you eat tomorrow” (or words to that effect) could be 

reasonably interpreted as a threat that food would be withheld from Burghardt if he obtained and 

submitted a grievance form. A jury must resolve whether Officer Franz made those statements 

and whether such statements were reasonably interpreted as threats of harm in retaliation for 

seeking to file a grievance.

For the foregoing reasons, the motion for partial summary judgment is GRANTED IN 

PART AND DENIED IN PART as follows:

• Defendants’ unopposed motion for summary judgment on claims 1 and 2 as to 

Defendant Kelley and claim 3 as to Defendant Bragger is GRANTED, and 

Defendants Kelley and Bragger are DISMISSED from this case; and

• Defendants’ motion for summary judgment on claim 1 as to Defendant Franz

regarding the August 27, 2012 incident is DENIED.

In light of this order, claim 1 as to Defendant Franz (based on both the August 27, 2012 and 

September 14, 2012 incidents) and claim 2 as to Defendant Franz (based on the September 14, 

2012 incident) will proceed.

Dated: June 16, 2022

______________________________________

BETH LABSON FREEMAN

United States District Judge

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