Quiroz v. Horel (85 F. Supp. 3d 1115, 2015)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; REFERRING CASE TO SETTLEMENT PROCEEDINGS

(Docket Nos. 267, 291)

LUCY H. KOH, District Judge

Plaintiff, a state prisoner proceeding pro se, filed a third amended complaint under 42 U.S.C. § 1983, arguing that prison official defendants violated his federal and state law rights. Defendants have filed a motion for summary judgment. Defendants have also filed a supplemental brief. (Docket No. 290.) Plaintiff has filed an opposition. Defendants have filed a reply. Having carefully considered the papers submitted, the court GRANTS in part and DENIES in part defendants’ motion for summary judgment.

BACKGROUND

In the third amended complaint, plaintiff alleges that defendants are Institutional Gang Investigators (“IGI”) of the Investigative Services Unit (“ISU”) at Pelican Bay State Prison (“PBSP”). The IGI officers are often tasked with inspecting incoming and outgoing mail. Plaintiff complains that defendants conspired with each other and retaliated against plaintiff for exercising his First Amendment right to file grievances and lawsuits. Specifically, plaintiff alleges that defendants: (1) violated plaintiffs First Amendment right to be free from retaliation; (2) conspired with other defendants to violate plaintiffs constitutional rights; and (3) violated state law. In response, defendants argue that: (1) a portion of the claims are unexhaust-ed; (2) a portion of the claims are barred by the statute of limitations; and (3) defendants are otherwise entitled to summary judgment on the merits, and based on qualified immunity.

The following facts are taken in the light most favorable to plaintiff.

Plaintiff has been confined in PBSP’s Secure Housing Unit (“SHU”) since February 1992. (Third Am. Compl. ¶ 23.) Since 1991, plaintiff has been an active, validated member of the Mexican Mafia prison gang. (Countess Decl. ¶ 7.) The Mexican Mafia prison gang is responsible for a variety of illegal activity within PBSP and other prisons, and is considered a continuing security threat within the California prison system. (Id. ¶ 6.) The Mexican Mafia is also affiliated with other prison gangs and street gangs, and promotes violence as a way of resisting prison officials’ authority within prisons. (Id.)

On July 19, 2005, plaintiff filed a federal civil rights complaint in Quiroz v. Woodford, No. 05-2938 JF (N.D. Cal.) (“Quiroz I ”). (Third Am. Compl. ¶ 26.) From 2006 through April 2012, plaintiff filed 59 administrative grievances against IGI officers alleging a variety of offenses. (Opp. at 37.) In 2007, plaintiff also participated in a staff complaint filed by another inmate named Sandoval against IGI officers. (Third Am. Compl. ¶ 38.) In 2009, plaintiff submitted a declaration in support of Sandoval in a federal civil rights complaint against IGI officers for excessive force in Sandoval v. Barneburg, No. 08-865 JSW (N.D. Cal. filed Feb. 8, 2008) (“Sandoval”). (Third Am. Compl. ¶¶38, 61.) Plaintiffs underlying federal civil rights complaint claims that defendants, who are all PBSP prison officials, retaliated against him for filing Quiroz I, participating in Sandoval’s staff complaint, submitting a declaration in support of Sandoval, and filing administrative grievances against IGI officers.

The court will set forth more specific facts giving rise to each of plaintiffs claims below.

ANALYSIS

I. Standard of Review

Summary judgment is proper where the pleadings, discovery and affidavits demonstrate that there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. But on an issue for which the opposing party will have the burden of proof at trial, as is the case here, the moving party need only point out “that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548.

Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings, and by its own affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). The court is only concerned with disputes over material facts, and “factual disputes that are irrelevant or unnecessary will not be counted.” Liberty Lobby, Inc., 477 U.S. at 248, 106 5.Ct. 2505. It is not the task of the court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996). The non-moving party has the burden of identifying, with reasonable particularity, the evidence that precludes summary judgment. Id. If the nonmoving party fails to make this showing, “the moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548.

At the summary judgment stage, the court must view the evidence in the light most favorable to the nonmoving party: if evidence produced by the moving party conflicts with evidence produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA 198 F.3d 1152, 1158 (9th Cir.1999).

II. Exhaustion

Defendants argue that plaintiff failed to exhaust his claims that defendants IGI Correctional Officer Countess, ISU Captain Brandon, and ISU Captain McGuyer retaliated against plaintiff by stopping incoming mail to plaintiff on February 20, 2007 and September 20, 2007, and John Doe III retaliated against plaintiff by intentionally discarding a piece of plaintiffs outgoing mail in November 2007. (MSJ at 14.) Plaintiffs third amended complaint is silent regarding whether plaintiff attempted to exhaust these claims.

The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Nonexhaustion under § 1997e(a) is an affirmative defense; that is, defendants have the burden of raising and proving the absence of. exhaustion. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir.2014) (en banc).

Defendants state that the prison has no record that plaintiff initiated the grievance process regarding the February 20, 2007 or September 20, 2007 stopping of mail, or the November 2007 discarding of plaintiffs outgoing mail. Plaintiff concedes that he failed to file any grievances exhausting the above three claims. (Opp. at 9.) Because the undisputed evidence, viewed in the light most favorable to plaintiff, shows that plaintiff failed to exhaust these claims, defendants are entitled to summary judgment on plaintiffs claims that defendants retaliated against him by stopping plaintiffs mail on February 20, 2007, September 20, 2007, and discarding a piece of outgoing mail in November 2007. See id.

III. Statute of Limitations

Defendants argue that plaintiffs claims regarding events that occurred prior to 2007 are barred by the statute of limitations. (MSJ 17-19.) Specifically, defendants assert that the following claims are untimely: (1) IGI Lieutenant D. Barne-burg, Correctional Counselor Hernandez, and non-defendant Marquez impermissibly confiscated plaintiffs personal property in 2004 (Third Am. Compl. ¶ 24); (2) McGuyer and Countess interfered with plaintiffs ability to send and receive mail in October, November, and December 2006 {id. ¶¶ 27-35); and (3) McGuyer and Wilber mishandled an administrative grievance in October and November 2006 {id. ¶¶ 8-9, 29-30, 32). Plaintiff responds that the impermissible confiscation of his personal property in 2004 was not intended to be a claim. (Opp. at 13.) Plaintiff further states that he is voluntarily dismissing the claims that McGuyer and Countess interfered with plaintiffs ability to send and receive mail in October, November, and December 2006, and that McGuyer and Wilber mishandled an administrative grievance in October and November 2006.

Accordingly, these claims are DISMISSED without prejudice.

IV. Merits

A. Retaliation

Plaintiff alleges that defendants retaliated against him in the following ways for exercising plaintiffs First Amendment rights: (1) by stopping plaintiffs incoming and outgoing letters; (2) by delaying plaintiffs incoming mail; (3) by withholding prisoner declarations; (4) by issuing a Rules Violation Report (“RVR”) against plaintiff; (5) by failing to provide plaintiff notice that a Superior Court would be seizing his funds; and (6) by searching plaintiffs cell and removing paperwork. The court will address each incident in turn.

“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) (footnote omitted).

The prisoner must show that the type of activity in which he was engaged was constitutionally protected, that the protected conduct was a substantial or motivating factor for the alleged retaliatory action, and that the retaliatory action advanced no legitimate penological interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir.1997) (inferring retaliatory motive from circumstantial evidence). Retaliatory motive may be shown by the timing of the allegedly-retaliatory act and other circumstantial evidence, as well as direct evidence. Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir.2003). However, mere speculation that defendants acted out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir.2014) (citing cases) (affirming grant of summary judgment where there was no evidence that defendants knew about plaintiffs prior lawsuit, or that defendants’ disparaging remarks were made in reference to prior lawsuit).

1. Stopping incoming and outgoing letters

Defendants argue that there is an absence of evidence of a causal connection that the stopping of plaintiffs incoming and outgoing- letters was motivated because of plaintiffs protected conduct. Defendants further argue that there were legitimate reasons for disallowing plaintiffs mail. Plaintiff claims that defendants stopped these incoming and outgoing letters because plaintiff filed Quiroz I, participated in Sandoval’s staff complaint, submitted a declaration in support of Sandoval, and filed administrative grievances.

To raise a triable issue as to motive, plaintiff must offer evidence that defendants knew about the protected conduct. Corales v. Bennett, 567 F.3d 554, 568 (9th Cir.2009). In addition, plaintiff must show “either direct evidence of retaliatory motive or at least one of three general types of circumstantial evidence [of that motive].” McCollum v. California Dept. of Corrections and Rehabilitation, 647 F.3d 870, 882 (9th Cir.2011) (quoting Allen v. Iranon, 283 F.3d 1070, 1077 (9th Cir.2002)). To survive summary judgment without direct evidence, therefore, plaintiff must “present circumstantial evidence of motive, which usually includes: (1) proximity in time between protected speech and the alleged retaliation; (2) [that] the [defendant] expressed opposition to the speech; [or] (3) other evidence that the reasons proffered by the [defendant] for the adverse ... action were false and pretextual.” McCollum, 647 F.3d at 882 (internal quotation marks and citation omitted).

A. June 2008 incoming letter from Yvette Asahi

On June 9, 2008, Countess and Brandon stopped an incoming letter to plaintiff from Yvette Asahi. (Third Am. Compl. ¶ 54.) The reason given for the confiscation was because the letter was considered third party correspondence and used a fictitious name or address. (Id.) Plaintiff challenged the stop in an administrative grievance. In the administrative grievance, plaintiff explained that Ms. Asahi lived with her cousin, Vivian Chavez, and Ms. Chavez was plaintiffs girlfriend. In addition, plaintiff asserts that on May 30, 2008, Countess inserted a note in a birthday card that Ms. Chavez sent to plaintiff, and the note stated “you are being advised that any further correspondence that contains perfume such as this' will be stopped and you will not'receive it. Your assistance informing the author of the correspondence is to your benefit if you wish to continue to correspond with her.” (Id.) Plaintiff argued that corresponding with people from the same residence was not in violation of any policy. Warden Horel denied plaintiffs administrative grievance. (Id.) Plaintiff claims that Countess and Brandon confiscated the June 2008 incoming letter from Ms. Asahi because plaintiff filed Quiroz I, participated in Sandoval’s staff complaint, submitted a declaration in support of Sandoval, and filed administrative grievances.

In response, Countess states that he stopped two pieces of incoming mail from “Y. Asahi and Ruben and Yvette Asahi” which originated from Ms. Chavez’s address. (Countess Decl. ¶ 15.) Countess deemed the mail “third party correspondence” because the letters appeared to be written by someone other than the person who wrote the envelope, one envelope was postmarked three weeks after one of the letters was dated, and the two letters seemed to be written by two different people. (Id.) Moreover, Ms. Chavez’s address had been identified as a “drop box” address for communications with plaintiff other than by Vivian Chavez. (Id.) Prison officials prohibit third party correspondence to prevent inmate to inmate correspondence. (Id. ¶ 13.) The IGI officers stop mail as third party correspondence if the envelope and the letter are obviously written by different people. (Id.) The prison has a legitimate security interest in preventing such correspondence,. particularly gang member to prison gang member

communication. (Id.) Moreover, the use of “drop boxes” is an unauthorized practice where an inmate sends or receives mail to an outside address where the mail can be routed from one inmate to another after persons at that outside address repackage the original mail and send it back to the prison. (Id. ¶ 12.) Because “drop boxes” facilitate inmate to inmate correspondence, mail to or from that address is generally prohibited to ensure prison security. (Id.) Plaintiff asserts that Countess stopped this letter, and Brandon approved the stop, because plaintiff filed Quiroz I, participated in Sandoval’s staff complaint, submitted a declaration in support of Sandoval, and filed an administrative grievance on January 2, 2008, challenging Countess’ disallowance of incoming correspondence from an unidentified party (id. ¶ 45). (Id. ¶ 54.) However, plaintiff provides no non-speculative evidence of retaliatory motive. See McCollum, 647 F.3d at 882.

First, there is no evidence that Countess or Brandon knew that plaintiff filed Quiroz I, participated in Sandoval’s staff complaint, submitted a declaration in support of Sandoval, or filed administrative grievances. Plaintiff alleges that he “put the defendants on notice that [] Countess was messing With his mail and was singling out [plaintiff] out of vindictiveness behind his lawsuit filed against the IGI [officers in Quiroz I ].” (Third Am. Compl. ¶ 54.) However, Countess was not named as a defendant in Quiroz I, and there is no other plausible .evidence that Countess knew about Quiroz I. Plaintiff also alleges that Brandon knew about Qui-roz I. However, Brandon was also not named as a defendant in that lawsuit, and there is no other evidence to infer that Brandon otherwise was aware of it. Plaintiff states that he gave Brandon “notice” that plaintiff began having “all of these problems” after plaintiff filed Quiroz I. (Third Am. Compl. ¶ 54.) However, there is an absence of evidence as to when plaintiff gave Brandon “notice,” and specifically, whether plaintiff gave Brandon notice of Quiroz I prior to the June 9, 2008 stopping of Ms. Asahi’s incoming letter.

In addition, even assuming that Countess and Brandon knew that plaintiff filed Quiroz I, participated in Sandoval’s staff complaint, submitted a declaration in support of Sandoval, and filed administrative grievances, there is no proximity in time between plaintiffs filing of Quiroz I in 2005, plaintiffs participation in Sandoval’s staff complaint in 2007, or any specific administrative grievance against which defendants allegedly retaliated. Quiroz I was filed in 2005, approximately three years prior. The 2007 Sandoval staff complaint also occurred over one year prior to this challenged stopping of mail on June 9, 2008. See Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 646 (9th Cir.2004) (recognizing that a thirteen month lapse is too long to support an inference of causality). However, plaintiffs January 2008 administrative grievance which challenged Countess’ disallowance of an incoming piece of mail to plaintiff from an unidentified party occurred close to six months prior to the confiscation of the underlying June 9, 2008 incoming letter from Ms. Asahi. (Third Am. Compl. ¶ 45.) Though six months may support an inference of retaliation, see Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir.2003), it is usually insufficient by itself to support a finding of retaliatory motive, see Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir.1995). In order to establish a causal link sufficient to survive summary judgment based solely on temporal proximity, the protected activity and the adverse action must be “very close.” Clark County School District v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam) (citing cases finding periods of three and four months too long).

There is no evidence that Countess or Brandon expressed opposition to plaintiffs protected conduct. In addition, plaintiff offers no evidence that Countess’ reasons for concluding that the incoming mail was “third party correspondence” was false or pretextual. See Wood, 753 F.3d at 904-05 (speculation on defendant’s motive is insufficient to defeat summary judgment). Plaintiff does not dispute that the letter qualified as “third party correspondence.” Outside of plaintiffs unsupported assertion that Countess and Brandon were motivated by plaintiffs protected conduct, plaintiff has offered no non-speculative evidence to support his claim that the disallowance of mail from Yvette Asahi was because plaintiff filed Quiroz I, participated in Sandoval’s staff complaint, submitted a declaration in support of Sandoval, or filed an administrative grievance challenging a stopped mail six-months prior. See Wood v. Yordy, 753 F.3d 899, 904 (9th Cir.2014) (“mere speculation that defendants acted out of retaliation is not sufficient”).

Moreover, it is clear that prisons have a legitimate penological interest in stopping prison gang activity. See Bruce, 351 F.3d at 1289. Prison security is a legitimate and neutral penological interest. See Stefanow v. McFadden, 103 F.3d 1466, 1472 (1996) (recognizing prison security as a legitimate and “compelling” penological interest and upholding content-based confiscation of book advocating racism and violence). Prison gangs in particular are a threat to inmate and staff safety, as well as to prison order. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 227, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). The court must “afford appropriate deference and flexibility” to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory. See Pratt, 65 F.3d at 807. Countess asserts that he stopped the incoming mail because it violated the rule against third party correspondence, and the mail came from a “drop box” address. Both rules are in place to prohibit prison gang activity.

Although the Ninth Circuit has held that “prison officials may not defeat a retaliation claim on summary judgment simply by articulating a general justification for a neutral process,” Bruce, 351 F.3d at 1289, this is not a case like Bruce because here, there is an absence of evidence that defendants had a retaliatory motive. See id. (specifying that a general justification for a neutral process cannot defeat a retaliation claim when there is also a genuine issue of material fact as to retaliatory motive). Accordingly, defendants are entitled to summary judgment on this claim.

B. December 2008 incoming letter from Dawn Aguila

On December 10, 2008, Countess and Brandon disallowed an incoming letter to plaintiff from Dawn Aguila. (Third Am. Compl. ¶ 60.) Plaintiff claims that Countess and Brandon conspired and retaliated against him for filing Quiroz I, participating in Sandoval’s staff complaint, submitting a declaration in support of Sandoval, and filing administrative grievances in January and July 2008. (Id. ¶¶ 45, 54, 56, 57, 60.) Plaintiff complains that the letter was stopped on the basis that the correspondence promoted gang activities. (Id. ¶ 60.) However, plaintiff asserts that Ms. Aguila is not a gang member, had no reason to promote gang activity, and that Countess and Brandon misinterpreted the contents of the letter. (Id.)

Countess averred that the letter from Ms. Aguila appeared to promote gang activities because it seemed to advise plaintiff about current gang activities by using street slang and coded terms, and appeared to seek direction from plaintiff. (Countess Decl. ¶ 17; Nimrod Deck, Ex. K.) Also, Countess believed the mail was “third party correspondence” because the letter was signed by a different person than the name on the envelope and the envelope was post-marked more than a month after the letter was written. (Countess Deck ¶ 17; Nimrod Deck, Ex. K.) Plaintiff does not respond to defendants’ arguments in his opposition and does not dispute that the mail satisfied the requirements to be labeled “third party correspondence.”

Again here, there is no evidence of retaliatory motive. See McCollum, 647 F.3d at 882. First, plaintiff does not allege that Countess knew about plaintiffs protected conduct. With respect to Brandon, plaintiff asserts that in the spring of 2008, Brandon and other IGI officers were reading declarations that inmates had submitted in support of Quiroz I. (Third Am. Compl. ¶ 49.) However, it is not clear how this would demonstrate that Brandon would have a retaliatory motive. In another instance, plaintiff alleges that Brandon approved of the stopping of plaintiffs mail in June 2008. (Id. ¶ 45.) Plaintiff filed administrative grievances challenging the stopping of his mail, but there is no evidence that Brandon was aware of those grievances. Plaintiff also cites to specific paragraphs in his third amended complaint in an effort to show that Countess and Brandon had notice of plaintiffs protected conduct. (Id. ¶ 60.) However, the paragraphs to which plaintiff refers include no factual support demonstrating that Countess or Brandon knew about plaintiffs protected conduct. (Id.)

In addition, éven assuming that Countess and Brandon knew about plaintiffs protected conduct, as previously stated, there is no proximity in time between Countess and Brandon’s disallowance of Ms. Aguila’s incoming letter to plaintiff on December 10, 2008 and plaintiffs filing of Quiroz I in 2005, or plaintiffs participation in Sandoval’s staff complaint in 2007. See Vasquez, 349 F.3d at 646. Further, neither Countess nor Brandon were defendants in Quiroz I, and the proximity in time between these events does not lead to an inference that Countess or Brandon was motivated by any of' the protected conduct. Second, there is no evidence that' Countess or Brandon expressed opposition to plaintiffs protected conduct. Third, plaintiff offers no evidence that Countess’ reasons for concluding that the incoming mail was “third party correspondence” or that'it promoted gang activities was false or pretextual. See Wood, 753 F.3d at 904-05 (speculation on defendant’s motive is insufficient to defeat summary judgment). Though the timing between plaintiffs January and June 2008 administrative grievances with the December 10, 2008 stopping of Ms. Agúila’s letter may support an inference of retaliation, see Coszalter, 320 F.3d at 977, by itself, timing ‘is usually insufficient to support a finding of retaliatory motive, see Pratt, 65 F.3d at 808. Outside of plaintiffs unsupported assertion that Countess and Brandon were motivated by plaintiffs protected conduct, plaintiff has offered no other non-concluory evidence to support his claim that the disal-lowance of mail from Ms. Aguila was “because of’ plaintiffs protected conduct.

In addition, there is an absence of evidence that the stopping of this letter did not reasonably advance a legitimate peno-logical goal. Again, it is clear that prisons have a legitimate penological interest in stopping prison gang activity. Bruce, 351 F.3d at 1289. The court must “afford appropriate deference and flexibility” to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory. See Pratt, 65 F.3d at 807. Countess asserts that he stopped the incoming mail because it violated the rule against third party correspondence and appeared to promote gang activities. Plaintiff does not dispute that the letter violated the rule against third party correspondence.

Accordingly, defendants are entitled to summary judgment on this claim.

C. October 2009 incoming mail from Lorie Quiroz

On October 12, 2009, IGI Correctional Officer G. Pimentel and Brandon stopped incoming correspondence from plaintiffs niece, Lorie Quiroz, on the basis that it was gang-related. (Third Am. Compl. ¶ 70; Nimrod Decl., Ex. O.) The mail contained one letter and forty embossed envelopes. (Nimrod Decl. ¶ 21, Ex. O.) Plaintiff claims that Ms. Quiroz does not have an arrest record, nor does she engage in gang activities, and thus, plaintiff believed that the investigators misinterpreted the contents of her letter. (Third Am. Compl. ¶ 70.) At the second level of review, the response indicated that Ms. Qui-roz’s letter was investigated. (Nimrod Decl., Ex. O.) The response concluded that the letter contained a small amount of gang-related information, i.e., information about a gang affiliate. (Id.) However, in the interest of keeping gang-related information from gang affiliates, the specific contents of the letter were withheld from plaintiff. (Id.) After investigation, the letter was disallowed but plaintiff was given the forty embossed envelopes. (Nimrod Decl. ¶ 21.)

Defendants are entitled to summary judgment on this retaliation claim because there is an absence of evidence that Pimentel and Brandon’s actions were “because of’ plaintiffs protected conduct. Here, plaintiff argues that defendants stopped the incoming letter from Ms. Quiroz because they were retaliating against plaintiff for filing Quiroz I, participating in Sandoval’s staff complaint, submitting a declaration in support of Sandoval, and filing seven administrative grievances from January 2, 2008 through October 12, 2009. (Third Am. Compl. f 70.)

First, plaintiff does not provide evidence that Pimentel even knew about plaintiffs protected conduct. Similarly, in addition to the previous times plaintiff alleged that Brandon had “notice” (Id. ¶ 60), plaintiff refers to three more paragraphs within his third amended complaint in which he claims that Brandon had “notice” of plaintiffs filing of grievances. (Id. ¶¶ 60, 68, 69.) However, in two of those paragraphs, the evidence merely demonstrates that Brandon approved of the stopping of plaintiffs mail in December 2008 and October 2009. (Id. ¶¶ 60, 69.) That is, plaintiff filed administrative grievances challenging Brandon’s stoppage of plaintiffs mail, but there is no evidence that Brandon was aware of those grievances. The remaining paragraph in which plaintiff alleges he gave notice to Brandon is conclusory, wholly unsupported, and fails to demonstrate how Brandon knew about plaintiffs protected conduct. (Id. ¶ 68.) Thus, there is an absence of evidence that defendants were motivated to stop Ms. Quiroz’s letter “because of’ plaintiffs protected conduct.

Moreover, there is no proximity in time between Pimental and Brandon’s stoppage of Ms. Quiroz’s incoming mail to plaintiff on October 12, 2009 and plaintiffs filing of Quiroz I in 2005 or plaintiffs participation in Sandoval’s staff complaint in 2007. See McCollum, 647 F.3d at 882. Quiroz I did not include either Pimentel or Brandon as defendants, and there is no other evidence from which to infer the filing of Quiroz I would have resulted in retaliation by Pi-mentel or Brandon.

Even assuming that Pimentel and Brandon knew about the administrative grievances, suspect timing, without more, is usually not enough to show retaliatory intent. See Pratt, 65 F.3d at 808. Here, nothing except suspect timing supports an inference of retaliatory intent. All of the administrative grievances were filed at least nine months prior to the challenged disallowance of mail from Ms. Qui-roz, except for two:' plaintiffs October 5, 2009 grievance and October 12, 2009 grievance. In the October 5, 2009 grievance, plaintiff was complaining about being moved because he was trying to help inmate Sandoval with Sandoval. (Third Am. Compl. ¶ 68.) There is no indication that defendants Pimentel or Brandon knew about this grievance or the cell move. In the October 12, 2009 grievance, plaintiff complained that incoming mail from Rob Ramirez was stopped as third party correspondence. (Id. ¶ 69.) Although defendants Pimentel and Brandon were the officials who decided to stop the mail for investigation, the evidence shows that plaintiff was ultimately given the letter after investigation. (Id.; Nimrod Deck, Ex. M.) Without more, the timing of these administrative grievances do not give rise to the reasonable inference that Pimentel or Brandon would be motivated to retaliate against plaintiff.

Moreover, there is no evidence that Pi-mentel or Brandon had expressed any opposition to plaintiffs protected conduct. In addition, it is not apparent why plaintiffs grievances or litigation efforts would have engendered retaliatory animus on the part of Pimentel or Brandon. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir.2009) (recognizing that plaintiff must put forth evidence that his protected conduct was the substantial or motivating factor behind defendant’s conduct). Finally, plaintiff has not shown that the reasons proferred by Pimentel or Brandon for stopping Ms. Quiroz’s letter were false or pretextual. Through plaintiffs administrative grievances, plaintiff was told that Ms. Quiroz’s letter contained information about a gang affiliate, which was not permitted. (Nimrod Deck, Ex. O.) The Ninth Circuit has instructed courts to “afford appropriate deference and flexibility” to prison officials when evaluating their proffered legitimate reasons for conduct alleged to be retaliatory. Pratt, 65 F.3d at 807. Plaintiff has not controverted defendants’ evidence.

Accordingly, defendants are entitled to summary judgment on this claim.

D. January 2010 outgoing mail to Veronica Rodriguez

On November 26, 2009, inmate Frank Fernandez’s father died. Fernandez told plaintiff about the death, and plaintiff told Fernandez that he would send Fernandez’s sister, Elaine Samaniego, $200 to buy flowers and help with funeral expenses. (Third Am. Compl. ¶ 71.) On January 3, 2010, plaintiff wrote to his friend, Veronica Rodriguez, to ask her to send $200 to Ms. Samaniego. (Id. ¶ 72.) On January 5, 2010, Pimentel and McGuyer stopped the letter because it violated the rule of “funds enclosed in correspondence.” (Id. ¶ 73.) At the second level of review, plaintiff alleges that Sgt. Dornback improperly added new reasons for confiscating the letter. (Id.) After plaintiff complained that Dornback added new reasons for confiscating the letter, Dornback and Warden Lewis filed an amended second level of review response. (Id.)

Plaintiff claims that Pimentel and McGuyer conspired and retaliated against him by confiscating plaintiffs outgoing letter to Ms. Rodriguez that asked her to send money to Ms. Samaniego. Plaintiff also alleges that Dornback furthered the retaliation by conducting a sham investigation. Plaintiff asserts that Pimentel, McGuyer, and Dornback retaliated against plaintiff for filing Quiroz I, participating in Sandoval’s staff complaint, submitting a declaration in support of Sandoval, and filing eight administrative grievances from January 2, 2008 through October 26, 2009. (Third Am. Compl. ¶ 73.)

A review of the record shows that, at the second level of review, it was determined that Ms. Samaniego was identified as being the sister of inmate Frank Fernandez, who was a validated Mexican Mafia prison gang associate. (Nimrod Deck, Ex. Q.) The reviewer concluded that it was reasonable to find that plaintiffs request for the $200 was intended to be used “for or on behalf of Fernandez,” who was an inmate, which violated the California Code of Regulations. (Id.) Further, the reviewer concluded that the outgoing letter violated PBSP policies against circumventing CDCR policies and procedures, and third party correspondence. (Id.) At the director’s level of review, the appeals examiner agreed with the second level of review response, and added that because plaintiffs letter to Ms. Rodriguez was sent on January 5, 2010, more than one month after the death of Frank Fernandez’s father, it was reasonable to conclude that the money was not intended for flowers or funeral expenses, but rather as a means to transfer money from one inmate to another. (Id.)

Here, plaintiffs claim fails because of an absence of evidence of retaliatory motive. See McCollum, 647 F.3d at 882. There is no evidence that Pimentel knew about plaintiffs protected conduct. As for McGuyer and Dornback, plaintiff asserts that they had “notice” of “retaliation and misconduct,” but the evidence does not lead to such an inference. (Third Am. Compl. ¶73, citing ¶¶45, 49, 54, 56, 57, 60, 66, 69, 70.) Moreover, in none of the paragraphs to which plaintiff cites in support of his assertion does plaintiff mention McGuyer or Dornback, much less provide evidence that McGuyer or Dornback had knowledge of plaintiffs protected conduct.

Further, as discussed previously, there is no proximity in time between defendants’ alleged retaliatory conduct and plaintiffs filing of Quiroz I in 2005, plaintiffs participation in Sandoval’s staff' complaint in 2007, or plaintiffs 2009 declaration in support of Sandoval. Pimentel, McGuyer, and Dornback were not named as defendants in Quiroz I or in Sandoval. The administrative grievances closest in proximity in time were filed approximately three months prior to the challenged confiscation of mail. However, even assuming that a three month gap is sufficient to show suspect timing, without more, it is usually not enough to show retaliatory intent. See Pratt, 65 F.3d at 808. In other words, the proximity in time - between these events does not lead to an inference that Pimentel, McGuyer, or Dornback was substantially motivated by any of the protected conduct. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir.2000) (retaliation claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, i.e., “after this, therefore because of this”). Second, there is no evidence that Pimentel, McGuyer, or Dornback expressed opposition to the protected conduct. Third, plaintiff offers no specific evidence that the defendants’ reasons for concluding that plaintiffs outgoing mail was an improper attempt to send inmate Frank Fernandez money was false or pretextual. See Wood, 753 F.3d at 904-05 (speculation on defendant’s motive is insufficient to defeat summary judgment). Here, at the director’s level of review,- the finding that plaintiff violated prison policies was affirmed by non-defendants, who agreed that the confiscation of plaintiffs outgoing mail was proper. (Nimrod Deck, Ex. Q.) Outside of plaintiffs unsupported assertion that Pi-mentel, McGuyer, and Dornback were motivated to confiscate this letter because of plaintiffs protected conduct, plaintiff has offered no non-conclusory evidence to support his claim.

In addition, there is an absence of evidence that the stopping of this letter did not reasonably advance a legitimate peno-logical goal. Defendants provided evidence that the letter was stopped because it was an attempt to provide funds for the benefit of another inmate, in violation of the California Code of Regulations. Again, prisons have a legitimate penological interest in stopping prison gang activity, see Bruce, 351 F.3d at 1289, and the courts must afford deference to their evaluation, see Pratt, 65. F.3d at 807 (finding that retaliation claims- brought by prisoners must be evaluated in light of concerns over “excessive judicial' involvement in day-to-day prison management, which ‘often squander[s] judicial resources with little offsetting benefit to anyone.’ ”).

Accordingly, defendants are entitled to summary judgment on this claim.

E. November 2010 incoming letter from Yvette Almos

On November 24, 2010, Pimentel stopped an incoming letter from Yvette Almos on the grounds that it discussed gang-related activity in a coded manner. (Third Am. Compl. ¶ 95.) Plaintiff filed an administrative grievance, and also wrote to Ms. Almos asking her if the correspondence that was stopped, in fact referred to other Mexican Mafia members or communicated gang-related activity from the Col-ton area in a coded manner. (Id. ¶¶ 98-99.) In response, Ms. Almos answered that her letter did not do those things. (Alvidrez Deck ¶ 16.) In the administrative grievance, Sgt. Frisk and Lewis both affirmed that the letter contained coded messages related to gang activity. (Nimrod Deck, Ex. ee.) Plaintiff claims that Pimentel and Frisk retaliated against plaintiff for filing Quiroz I, participating in Sandoval’s staff complaint, submitting a declaration in support of Sandoval, and filing 17 administrative grievances from January 2, 2008 through December 9, 2010. (Third Am. Compl. ¶ 99.)

Again, plaintiffs claim fails because of an absence of evidence of retaliatory motive. See McCollum, 647 F.3d at 882. Plaintiff does not allege that either Pimentel or Frisk had knowledge of plaintiffs previous grievances or lawsuit. Moreover, even assuming that proximity in time between the stopping of Ms. Almos’ letter and any of plaintiffs grievances is circumstantial evidence of motive, it is not sufficient by itself to lead to an inference that Pimentel or Frisk was motivated by any of the protected conduct. See Pratt, 65 F.3d at 808. Second, there is no evidence that Pimentel or Frisk expressed opposition to the protected conduct. Third, plaintiff offers no evidence that the defendants’ reasons for concluding that Ms. Almos’ incoming mail included inappropriate coded messages were false or pretextual. See Wood, 753 F.3d at 904-05 (speculation on defendant’s motive is insufficient to defeat summary judgment).

At the director’s level of review, the findings were affirmed by non-defendants, who agreed that the confiscation of Ms. Almos’ mail was proper. (Nimrod Decl., Ex. ee.) Although Ms. Almos declares that there was no reference to gangs or gang related messages in her letter, that she and plaintiff disagree with defendants’ stated decision for stopping the letter does not necessarily demonstrate that the defendants’ reasons were pretextual. Cf. Koutnik v. Brown, 456 F.3d 777, 785 (7th Cir.2006) (deferring to prison officials’ assessment of what constitutes gang-related symbols and recognizing that courts owe substantial deference to prison administrators’ professional judgment). Plaintiffs argument that the letter did not include gang related activity demonstrates that plaintiff disagreed with the accuracy of defendants’ decision to stop the mail from reaching plaintiff. However, plaintiffs argument and Ms. Almos’ opinion do not demonstrate that defendants’ decision to stop Ms. Almos’ letter was a pretext, or that it was a pretext substantially motivated by plaintiffs protected conduct. See, e.g., Diorio v. County of Kern, No. 11-cv-01569 LJO JLT, 2013 WL 1127687, at *10 (E.D.Cal. March 18, 2013) (stating that, in the employment context, evidence of pretense must be specific and substantial); Keyser v. Sacramento City Unified School Dint, 265 F.3d 741, 753 n. 5 (9th Cir.2001) (differentiating between “specific,” “substantial” evidence and opinions and beliefs that a defendant’s actions were retaliatory, “based on no specific or substantial evidence”). Outside of plaintiffs unsupported assertion that Pimentel and Frisk were motivated to confiscate this letter because of plaintiffs protected conduct, plaintiff has offered no non-conclusory evidence to support his claim.

Finally, there is an absence of evidence that the stopping of this letter did not reasonably advance a legitimate penological goal. Defendants provided evidence that the letter was stopped because it contained coded messages. Again, it is clear that prisons have a legitimate penological interest in stopping prison gang activity. Bruce, 351 F.3d at 1289. Although plaintiff disputes the accuracy of defendants’ actions, the court must “afford appropriate deference and flexibility’’ to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory. See Pratt, 65 F.3d at 807.

Accordingly, defendants are entitled to summary judgment on this claim.

F. Incoming mail from Burke, Williams & Sorensen

On December 16, 2011, plaintiff was subject to a cell search. Frisk and ISU Captain Freeland stopped and confiscated incoming mail from Burke, Williams & Sorensen. (Third Am. Compl. ¶ 101.) As a result of the search, plaintiff discovered that documents produced .to him by Short’s defense counsel in discovery requests were confiscated. (Id ¶¶ 102, 103, 108.) Plaintiff alleges that Frisk and Freeland conspired and retaliated against him by stopping and destroying plaintiffs legal discovery documents from Burke, Williams & Sorensen. 'When Frisk approached plaintiff to let plaintiff know that the documents had been confiscated, plaintiff told Frisk that the documents he destroyed were privileged legal mail that was sent to him by Short’s lawyer. (Id. ¶ 102.) Frisk merely laughed and said, “I don’t care, I know all about your conspiracy theory.” (Id.) Plaintiff claims that Frisk and Freeland retaliated against plaintiff for filing Quiroz I, participating in Sandoval’s staff complaint, .submitting a declaration in support of Sandoval, filing 53 administrative grievances from October 2006 through December 2011, and filing the underlying federal action. (Third Am. Compl. ¶ 107; Opp. at 43.)

Sgt. Pieren interviewed plaintiff for purposes of plaintiffs administrative grievance. (Soderlund Decl., Ex. A.) Pieren also reviewed the stopped mail from Burke, Williams & Sorensen and found two confidential CDCR documents — he first was a “Post Order” or “Duty Statement” for Short, which included information such as the procedures for how and when IGI Sergeants respond to institution alarms. (Frisk Decl. ¶ 8.) Such information could be used by an inmate to disrupt the prison, which “would jeopardize the safety and security of the institution.” (Id.;. Soderlund Decl., Ex. A.) The second document was Short’s work history which included personal information about Sgt. Short. (Id.) The reviewer concluded that, if an inmate were to possess those documents, it would pose a risk to the safety and security of the institution. (Id.) At the director’s level of review, non-defendants reviewed the findings and denied plaintiffs appeal of his administrative grievance.

Plaintiffs claim fails because of an absence of evidence of retaliatory motive. See McCollum, 647 F.3d at 882. Even assuming that proximity in time between the stopping of the incoming letter from Burke, Williams & Sorensen and plaintiffs protected conduct is circumstantial evidence of motive, it is not sufficient by itself to lead to an inference that Frisk or Free-land was motivated by any of the protected conduct. See Pratt, 65 F.3d at 808. Second, there is no evidence that Frisk or Freeland expressed opposition to the protected conduct. Plaintiff asserts that when Frisk informed plaintiff that the discovery had been destroyed because they were confidential documents, plaintiff informed Frisk that the documents were evidence from Short’s attorney in support of plaintiffs underlying complaint. (Third Am. Comp. ¶ 102.) According to plaintiff, Frisk responded, “I don’t care. I know all about your conspiracy theory,” and laughed while Frisk left. (Id.) However, Frisk’s statement was not an expression of opposition to plaintiffs filing of Quiroz I or administrative grievances. At most, Frisk acknowledged that he knew about plaintiffs filings, but awareness and opposition are not the same for these purposes. See McCollum, 647 F.3d at 882 (making a distinction between “awareness” and “opposition”). Third, plaintiff offers no evidence that the defendants’ reasons for confiscating the incoming mail on the ground that the information was confidential to inmates were false or pretextual. See Wood, 753 F.3d at 904-05 (speculation on defendant’s motive is insufficient to defeat summary judgment). At the director’s level of review, the findings were affirmed by non-defendants, who agreed that the confiscation of the documents was proper. (Soder-lund Decl., Ex. A.) In addition, courts in this circuit have concluded that Post-Orders such as the one confiscated by defendants are deemed confidential. See, e.g., Rogers v. Emerson, No. 12-1827 AWI, 2013 WL 6383239, at *3 (E.D.Cal. Dec. 4, 2013) (unpublished). Outside of plaintiffs unsupported assertion that Frisk and Freeland were motivated to. confiscate these documents because of plaintiffs protected conduct, plaintiff has offered no non-conclusory evidence to support his claim.

Accordingly, defendants are entitled to summary judgment on this claim.

G. April 2012 incoming mail from Vivian Chavez

On April 17, 2012, IGI Correctional Officer Healy and Freeland stopped an incoming letter from Vivian Chavez, on the basis that it contained coded messages and promoted gang activity. (Third Am. Compl. ¶ 109.) Plaintiff alleges that Pieren conspired to retaliate against him by conducting a sham investigation. (Id. ¶ 111.) Plaintiff refuted that the letter from Ms. Chavez included coded messages or promoted gang activity. (Id. ¶ 110.) Plaintiff claims that Healy, Freeland, and Pieren retaliated against plaintiff for filing Quiroz I, participating in Sandoval’s staff complaint, submitting a declaration in support of Sandoval, filing 59 administrative grievances from October 2006 through April 2012, and litigating the underlying federal lawsuit. (Third Am. Compl. ¶ 112; Opp. at 37.)

First, there is an absence of evidence that Healy, Freeland, or Pieren knew about any of plaintiffs protected conduct. As such, they could not have been motivated by retaliation. Moreover, even though timing may properly be considered as circumstantial evidence of retaliatory intent, alone it is insufficient to support a retaliation claim. Pratt, 65 F.3d at 808; see Stone v. Becerra, No. 10-138 RMP, 2011 WL 1565299, *3 (E.D.Wash. April 25, 2011) (timing of cell search, without more, was insufficient to allege that search was retaliatory), aff'd by 520 Fed.Appx. 542 (9th Cir. May 22, 2013) (unpublished memorandum disposition). Moreover, there is no indication why Healy, Freeland, or Pieren would have any retaliatory animus for Quiroz I or the underlying federal action because Healy, Freeland, and Pier-en were not defendants in Quiroz I, and they were not named as defendants in this action until after this challenged stopping of mail. In addition, plaintiffs participation in Sandoval’s staff complaint and submission of a declaration in support of Sandoval appear to have little relevance to Healy, Freeland, or Pieren because they were not defendants in Sandoval.

Nonetheless, even assuming that the timing is suspect, there is no evidence that Healy, Freeland, or Pieren expressed opposition to plaintiffs protected conduct. Furthermore, plaintiff offers no non-speculative evidence that the defendants’ reasons for confiscating the incoming mail on the grounds that the letter was coded and contained gang-related material were false or pretextual. See Wood, 753 F.3d at 904-05 (speculation on defendant’s motive is insufficient to defeat summary judgment). At the director’s level of review, the findings were affirmed by non-defendants, who agreed that the confiscation of the mail was proper. (Soderlund Deck, Ex. C.) Outside of plaintiffs unsupported assertion that Healy, Freeland, and Pieren were motivated to confiscate this letter because of plaintiffs protected conduct, plaintiff has offered no non-conclusory evidence to support his claim. Moreover, as previously stated, defendants have provided evidence that the stop was intended to prevent gang-related activity, which serves a legitimate penological purpose.

Accordingly, defendants are entitled to summary judgment on this claim.

2. Delay of mail

Plaintiff sets forth three instances where defendants delayed plaintiffs incoming or outgoing mail after defendants stopped the mail for investigation. (Third Am. Compl. ¶¶ 69, 81, 84.) In each instance, defendants ultimately concluded that plaintiffs mail did not violate prison policies, and delivered the mail to the intended recipients. (Id. ¶¶ 69, 81, 84.)

First, on September 20, 2009, Pimentel and Brandon stopped incoming mail from Rob Ramirez because Pimental and Brandon determined that the incoming mail contained third party correspondence. (Third Am. Compl. ¶ 69; Nimrod Decl. ¶ 19.) Plaintiff complained that the letter was merely relaying a message from a friend or family member. (Third Am. Compl. ¶ 69.) On or around October 24, 2009, at the first level of review of plaintiffs administrative grievance, Pieren agreed with plaintiff that the contents of the letter did not violate prison policies and delivered the letter to plaintiff. (Id.)

Second, on January 29, 2010, Pimentel and McGuyer stopped incoming mail from Elizabeth Casteneda because Pimentel and McGuyer believed the correspondence was an attempt to facilitate third party correspondence or pass messages. (Third Am. Compl. ¶ 81; Nimrod Decl. ¶ 26.) Plaintiff filed an administrative grievance. Pieren granted plaintiffs administrative grievance, concluding that “although the wording in the letter could be construed as trying to establish a third party communication, it in fact did not meet the definition .... ” (Nimrod Decl., Ex. T.) As a result, on March 10, 2010, plaintiff was given the letter. (Id.)

Third, on March 12, 2010, non-defendant IGI Correctional Officer Puente and McGuyer stopped plaintiffs outgoing mail to Veronica Rodriguez on the ground that the mail was an attempt to circumvent regulations and violate the prohibition on contraband. (Third Am. Compl. ¶ 84; Nimrod Decl. 11.28.) Plaintiff filed an administrative grievance. Pieren granted plaintiffs administrative grievance, finding that the outgoing mail did not appear to violate the prison policies and mailed out plaintiffs correspondence the following day, on March 13, 2010. (Nimrod Decl., Ex. V.)

Defendants are entitled to summary judgment on these claims of retaliation because there is an absence of evidence as to causation and whether the delay chilled plaintiffs First Amendment right to file grievances and lawsuits.

In determining whether a retaliatory motive exists, a relevant factor includes whether the defendant was aware of the prisoner’s protected conduct. Pratt, 65 F.3d at 808. Here, plaintiff does not proffer facts to show that Pimentel knew about plaintiffs protected conduct or that the protected conduct motivated Pimentel to retaliate. (Third Am. Compl. ¶¶ 69, 81, 84.)

On the other hand, plaintiff asserts that he gave notice to Brandon about plaintiffs allegations of “retaliation and misconduct” and refers to seven paragraphs within plaintiffs third amended complaint in support of his assertion. (Id. ¶ 69, citing ¶¶ 45, 49, 54, 56, 57, 60, 68.) In one paragraph, plaintiff alleges that in January 2008, plaintiff told Brandon about Quiroz I and plaintiffs belief that IGI officers have been tampering with his mail in retaliation for the lawsuit. (Id. ¶ 45.) However, there is no evidence to demonstrate why Brandon would be motivated to retaliate against plaintiff for a lawsuit that did not name Brandon as a defendant. Plaintiff further asserts that in the spring of 2008, Brandon and other IGI officers were reading declarations-that inmates had submitted in support of Quiroz I. (Id. ¶ 49.) Again, it is not clear how this would demonstrate that Brandon would have a retaliatory motive. In two other paragraphs, in an attempt to show motive, plaintiff alleges that Brandon approved of the stopping of plaintiffs mail in June and December 2008. (Id. ¶¶ 45, 60.) Plaintiff filed administrative grievances challenging the stopping of his mail, but there is no evidence that Brandon was aware of the grievances. The remaining paragraphs in which plaintiff alleges he gave notice to Brandon include no facts to support the assertion that Brandon knew about plaintiffs protected conduct. (Id. ¶¶ 56, 57, 68.) In addition, there are no facts alleging that McGuyer had notice of plaintiffs protected conduct. (Id. ¶¶ 45, 60.)

Regarding the stopping of plaintiffs outgoing mail to Ms. Rodriguez, plaintiff

claims that plaintiff gave McGuyer notice of plaintiffs protected conduct. (Id. ¶ 84, citing ¶¶ 69, 70, 73, 76, 80, 81, 83.) However, the court has reviewed the paragraphs to which plaintiff cites as support for his assertion that McGuyer had notice of plaintiffs protected conduct. None of those paragraphs demonstrate that McGuyer had knowledge of plaintiffs protected conduct. In addition, plaintiff does not allege facts to show that McGuyer knew about Quiroz I. In two of the cited paragraphs, plaintiff states that on January 5 and January 29, 2010, McGuyer approved Pimentel’s decision to stop incoming mail to plaintiff, and outgoing mail from plaintiff. (Id. ¶¶ 73, 81.) However, even though plaintiff challenged these findings by filing administrative grievances, there is no evidence that McGuyer knew about those grievances. In another paragraph, plaintiff states that he challenged the loss of several drawings in an administrative grievance, and at director’s level of review, plaintiff alleged that McGuyer was a supervisor who failed to remedy the problem. (Id. ¶ 80.) However, again, this is insufficient to infer that McGuyer knew about plaintiffs protected conduct, much less was substantially motivated by that conduct to retaliate.

In addition, although retaliatory motive may be shown by the timing of the allegedly retaliatory act and inconsistency with previous actions, Bruce, 351 F.3d at 1288-89, retaliatory motive is not established simply by showing adverse activity by the defendant after protected conduct; rather, the plaintiff must show a nexus between the two, Huskey, 204 F.3d at 899 (retaliation claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, i.e., “after this, therefore because of this”). Here, plaintiff has not met his burden of showing that retaliation was the “substantial” or “motivating” factor behind Pimentel, McGuyer, or Brandon’s actions. Plaintiffs bare factual assertions that the stopping of his mail was motivated by such reason is no more than post hoc, ergo propter hoc. In other words, plaintiff asserts that because he filed grievances and litigated lawsuits, the stops must have been retaliatory based upon suspect timing. Yet, plaintiff has put forth no non-speculative evidence showing a triable issue of fact as to a causal nexus. For example, he offers no evidence of having personal knowledge, as opposed to offering speculation, of such a motive. Further, there is no evidence that any of these defendants expressed opposition to plaintiffs protected conduct. Nor is there evidence tending to show that Pimentel, McGuyer, or Brandon’s reasons for stopping or approving of the stopped mail were false or pretextual.

In addition, plaintiff has not shown that these instances of stopped mail chilled the exercise of his First Amendment right to file grievances or lawsuits. A prisoner must at least allege that he suffered harm, since harm that is more than minimal will almost always have a chilling effect. Rhodes, 408 F.3d at 567-68 n. 11; see Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir.2000) (holding that a retaliation claim is not actionable unless there is an allegation of harm). The prisoner need not demonstrate a total chilling of his First Amendment rights in order to establish a retaliation claim. See Rhodes, 408 F.3d at 568-69 (destruction of inmate’s property and assaults on the inmate enough to chill inmate’s First Amendment rights and state retaliation claim, even if inmate filed grievances and a lawsuit). “[T]he proper First Amendment inquiry asks whether an official’s acts would chill or silence a person of ordinary firmness from future First Amendment activities.” Id. at 568.

Here, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiffs legal conclusions as true. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Outside of reciting the element that defendants “chilled” plaintiffs First Amendment rights, plaintiff does not otherwise support this element with any facts. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory .statements, do not suffice.” Id. Even so, an allegation of harm, rather than a “chilling effect,” may be a sufficient basis for a claim of retaliation. Rhodes, 408 F.3d at 569-70. However, in the three challenged instances of delayed mail, there is an absence of evidence that plaintiff was harmed. In each instance, plaintiff promptly contested the stopping of the mail, and on appeal of plaintiffs administrative grievance, it was determined that plaintiff was correct. Thereafter, plaintiffs mail was delivered. In a constitutional tort, as in any other, a plaintiff must allege that the defendant’s actions caused him some injury. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Here, despite plaintiffs mail being held for further investigation, it was ultimately found that the mail should be delivered because the mail did not violate prison policies. Plaintiff has not provided sufficient evidence that the delay of his mail had a chilling effect on plaintiffs First Amendment activities, or that plaintiff was otherwise harmed.

Because there is an absence of evidence regarding causation as well as a chilling ef