Bird v. Dzurenda

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEITH PAUL BIRD, No. 23-2664

D.C. No.

Plaintiff - Appellee,

2:20-cv-02093-

ART-NJK

v.

JAMES DZURENDA; HAROLD

WICKHAM; BRIAN WILLIAMS OPINION

Sr.; JULIE MATOUSCK;

MONIQUE HUBBARD-PICKETT;

JOHNATHON BINDER; THOMAS;

ALEXIS LOZANO; PARYGA;

ATHERTON; WILLIE CLAYTON;

ENNIS; ENNIS-WRIGHT; JULIE

WILLIAMS, (Matousek),

Defendants - Appellants.

Appeal from the United States District Court

for the District of Nevada

Anne R. Traum, District Judge, Presiding

Argued and Submitted September 9, 2024

San Francisco, California

Filed March 13, 2025

2 BIRD V. DZURENDA

Before: Ronald M. Gould and Patrick J. Bumatay, Circuit

Judges, and J. Michael Seabright, District Judge. *

Opinion by Judge Bumatay

SUMMARY **

Prisoner Civil Rights

The panel reversed the district court’s denial of qualified

immunity to state prison guards in a 42 U.S.C. § 1983 action

brought by Nevada state prisoner Keith Bird alleging that

they violated his First Amendment right to petition for

redress of grievances when they threatened him and

confiscated his property after he complained about concerns

with his cellmate.

The panel held that Bird’s request for a cell transfer

based on concerns with his cellmate did not constitute

“protected conduct” under clearly established law. Because

neither the Supreme Court nor the Ninth Circuit has ever

held that retaliation for complaints against other prisoners

violates the First Amendment right to petition for redress of

grievances, it was not clearly established law. The prison

officials were therefore entitled to qualified immunity.

*

The Honorable J. Michael Seabright, United States District Judge for

the District of Hawaii, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BIRD V. DZURENDA 3

COUNSEL

Lyndsey Franklin (argued) and Rachel G. Miller-Ziegler,

Munger Tolles & Olson LLP, Washington, D.C.; Samuel D.

K. Weiss, Rights Behind Bars, Washington, D.C.; for

Plaintiff-Appellee.

Chris Davis (argued), Senior Deputy Attorney General;

Aaron D. Ford, Nevada Attorney General; Office of the

Nevada Attorney General, Las Vegas, Nevada; for

Defendants-Appellants.

OPINION

BUMATAY, Circuit Judge:

In this case, we consider whether state prison guards

violated a prisoner’s First Amendment right to petition for

redress of grievances when they allegedly threatened him

and confiscated his property after he complained about

concerns with his cellmate. We conclude that such a

challenge fails to allege a violation of clearly established law

and reverse the district court’s denial of qualified immunity.

I.

Keith Paul Bird is a prisoner at the High Desert State

Prison in Nevada. According to his complaint, on November

11, 2018, Bird approached Officer Bruce Huinker, the

officer in charge of Bird’s cell unit, and “requested” that he

be moved from his cell “at once” because of “issues with his

current cellmate that if left unaddressed would lead to a

fight.” In response, Officer Huinker called for assistance

and Officers Paryga and Atherton responded. Bird

4 BIRD V. DZURENDA

explained the situation to them, and Officer Paryga allegedly

replied, “Fight him or fight me.” Afterward, the officers

instructed Bird to “roll up” his property in his cell in

preparation for moving him. As Bird gathered his

belongings, Officer Huinker tried to close the cell door and

announced over the in-cell speaker that Bird was “staying in

that cell.” Bird prevented the door from closing by pushing

a plastic tub in the door’s way and responded, “[N]o sir[,] I

am not.”

At that time, Officers Paryga and Atherton re-entered

Bird’s cell unit, ordered Bird to push his property back into

his cell, and directed him into a prison classroom. Officers

Paryga and Atherton then “thrash[ed] the cell” and

confiscated Bird’s property, including religious books, legal

papers, personal mail, and food. Bird claims that the officers

did this “in retaliation for [his] ‘making them do their jobs.’”

According to Bird, the officers also did not issue him an

“unauthorized property form” to appeal the confiscation of

his property. Officers later transferred Bird to a new cell that

day.

After the incident, Bird filed grievances against Officers

Paryga and Atherton. In his informal grievance, Bird alleged

that the officers confiscated his property “in retaliation” for

“requesting a bed move due to safety concerns.” A prison

official denied the informal grievance. Bird filed then a first-

level grievance, again explaining that he requested a cell

transfer because of “rising tensions between [him] and [his]

cellmate,” which he believed would end in a fight. He

claimed that Officer Paryga’s response to him was

“inflammatory” and violated his First Amendment right and

that officers confiscated his property in retaliation for

“reporting a safety concern.” This time, a prison official

denied the grievance as unsubstantiated.

BIRD V. DZURENDA 5

Bird filed a second-level grievance, which was also

denied. The official found that officers did not retaliate

against Bird because they granted his request for a cell

transfer and Officer Paryga’s comment was not retaliatory

but intended to determine whether Bird was threatening to

fight his cellmate or whether his cellmate was threatening

him. The official also found that Bird did not provide

documentation or proof of ownership sufficient to show that

any of his property was confiscated.

Bird then filed a pro se complaint against Officers

Paryga and Atherton and other prison administrators in

federal court, alleging retaliation and other claims. The

district court found that only Bird’s retaliation claim

survived screening and was properly exhausted. The district

court then denied the prison officials’ motion for summary

judgment on the retaliation claim, holding that they were not

entitled to qualified immunity. The defendant prison

officials now appeal. We review the denial of qualified

immunity on summary judgment de novo. Cox v. Roskelley,

359 F.3d 1105, 1109 (9th Cir. 2004).

II.

Qualified immunity follows a familiar framework.

Under the doctrine, government officials are shielded from

liability under 42 U.S.C. § 1983 “unless (1) they violated a

federal statutory or constitutional right, and (2) the

unlawfulness of their conduct was clearly established at the

time.” Rico v. Ducart, 980 F.3d 1292, 1298 (9th Cir. 2020)

(simplified). Because both conditions must be met, we may

consider the prongs in any order. See id. We begin and end

with the “clearly established” prong.

To show a violation of “clearly established” law, a

defendant must show that a right is “sufficiently clear that

6 BIRD V. DZURENDA

every reasonable official would have understood that what

he is doing violates that right.” Mullenix v. Luna, 577 U.S.

7, 11 (2015) (simplified). While this doesn’t require a case

that’s “on all fours” with the facts at issue, Rico, 980 F.3d at

1298, the existing caselaw must “have placed the statutory

or constitutional question beyond debate,” Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011). In all cases, we ask

“whether the violative nature of [the defendants’] particular

conduct is clearly established . . . in light of the specific

context of the case.” Rico, 980 F.3d at 1298 (simplified).

And we must remember “not to define clearly established

law at a high level of generality.” al-Kidd, 563 U.S. at 742

(simplified).

“[I]n the prison context,” we have said that the

“prohibition against retaliatory punishment” may violate

“clearly established law” for qualified immunity purposes.

Chavez v. Robinson, 12 F.4th 978, 1001 (9th Cir. 2021)

(simplified). Such a violation implicates a prisoner’s First

Amendment right to petition prison grievances and to seek

redress for “prison injustices.” Id. (simplified). To establish

a retaliation claim under the First Amendment, a prisoner

must show “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.’” Id. (simplified).

Bird asserts that Officer Paryga threatened to “fight

[him]” and that Officers Paryga and Atherton confiscated his

property in retaliation for his requesting a cell transfer to

avoid a confrontation with his cellmate. So we must

determine whether Bird’s request for a cell transfer based on

BIRD V. DZURENDA 7

concerns with his cellmate constitutes “protected conduct”

under clearly established law. It does not.

We have long held that the First Amendment requires

“avenues for prisoners to redress the wrongs or inadequacies

of their state jailors.” Bruce v. Ylst, 351 F.3d 1283, 1290

(9th Cir. 2003) (emphasis added). So if prison guards

retaliated against Bird for complaints about the actions of

prison officials, we would easily be within the realm of

“protected conduct.” See, e.g., Rhodes v. Robinson, 408

F.3d 559, 567–68 (9th Cir. 2005) (recognizing retaliation

when prison officials confiscated a prisoner’s property,

plotted to transfer him, and physically assaulted him because

of repeated filings of grievances against them); Brodheim v.

Cry, 584 F.3d 1262, 1269–70 (9th Cir. 2009) (recognizing

retaliation when a prison official warned a prisoner to be

“careful” what he writes and requests in his administrative

grievances about prison officials); Watison v. Carter, 668

F.3d 1108, 1114–16 (9th Cir. 2012) (recognizing retaliation

when three correctional officers placed prisoner in

administrative segregation, orally threatened him, and

refused to provide him breakfast because of grievances filed

against them); Shepard v. Quillen, 840 F.3d 686, 693 (9th

Cir. 2016) (recognizing retaliation when prison officials

placed prisoner in administrative segregation because of

complaints made against a prison guard); Entler v. Gregoire,

872 F.3d 1031, 1041 (9th Cir. 2017) (recognizing retaliation

when prison officials formally disciplined prisoner for

threatening to sue the prison and its officials and for

complaining to the governor about prison conditions).

But Bird asserts that the officers retaliated against him

because he complained about another prisoner. This is a

“significant distinction[]” from our prior caselaw. See

Chavez, 12 F.4th at 1001. Indeed, Bird cites no case

8 BIRD V. DZURENDA

recognizing retaliation based on a prisoner’s complaints

about another prisoner. And context matters. Prison

officials may need more flexibility and control in dealing

with squabbles between prisoners. If retaliation claims can

arise any time an inmate raises concerns about another

inmate, that would cede considerable control to inmates.

Thus, grievances against other prisoners implicate different

penological interests than grievances against prison

officials. As the Supreme Court has said, “a prison inmate

retains those First Amendment rights that are not

inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections system.”

Pell v. Procunier, 417 U.S. 817, 822 (1974). And any

“[c]hallenges to restrictions of first amendment rights must

be analyzed in terms of the legitimate policies and goals of

the correctional institution in the preservation of internal

order and discipline, maintenance of institutional security,

and rehabilitation of prisoners.” Rizzo v. Dawson, 778 F.2d

527, 532 (9th Cir. 1985) (simplified).

Thus, because neither the Supreme Court nor the Ninth

Circuit has ever held that retaliation for complaints against

other prisoners violates the First Amendment right to

petition for redress of grievances, it is not clearly established

law. Officers Paryga and Atherton are thus entitled to

qualified immunity. And because Bird’s retaliation claim

against the other prison officials turns on the alleged

retaliation by Officers Paryga and Atherton, those officials

are also entitled to qualified immunity.

III.

We reverse the district court’s denial of qualified

immunity and remand with instructions to grant summary

judgment on Bird’s retaliation claim.

BIRD V. DZURENDA 9

REVERSED AND REMANDED.