George M. PASION, Plaintiff-Appellant, v. John A. HAVILAND; et al., Defendants-Appellees, 597 F. App'x 908

MEMORANDUM 1. Plaintiff George Pasión submitted evidence from which a reasonable jury could infer that Captain R. Cappel acted with a retaliatory motive when he decided to keep Pasión in administrative segregation. The first piece of evidence Pasión 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 Pasión 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, Pasión 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 Pasión 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 Pasión 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 Pasión in administrative segregation were simply not supported by the facts.

In the narrative explanation for his decision, for example, Cappel stated that because Pasión had lodged an excessive force complaint, Pa-sión 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 cheek-box explanations for the placement could also 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 Pasión 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 Pasión in administrative segregation were pretextual. To prevail, Pasión must also prove that Cappel’s stated justifications were offered to cover up one particular illegitimate motive — retaliation against Pasión for exercising his First Amendment rights. See Lacey v. Maricopa Cnty., 693 F.3d 896, 916-17 (9th Cir.2012).

Pasión has introduced evidence that, if believed by the jury, could support a judgment in his favor. Both Pasión and Cappel testified that, immediately before making the decision to retain Pasión in administrative segregation, Cappel asked Pasión if he intended to withdraw his complaint. Pasión 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 Pasión is a material and disputed fact, and a reasonable jury could rely on the context within which Cappel questioned Pasión to infer retaliatory' in-. tent. According to Pasión, 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 Pasión 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). 2. The district court also erred in dismissing Pasion’s claim against Lieutenant D. McGuire. Pasión alleged that there was “no justification” for McGuire’s initial decision to place him in the “hole.” Pasión appended to his complaint the only written explanation provided by McGuire, which came two weeks after the placement decision.

That explanation stated that Pasión was “placed in Administrative Segregation for the accusation of staff misconduct.” (Emphasis added.) Given the liberal construction afforded pro se plaintiffs, we find that Pasión 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 conclu-sory 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 Pasión 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). Pa-sión had no right to counsel in this suit, and he did not demonstrate that “exceptional circumstances” compelled the 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, Pasión 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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.