The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEIL GRENNING, No. 23-3018
D.C. No.
Plaintiff - Appellant,
2:22-cv-00136-
MKD
v.
JAMES R KEY, sued in his official OPINION
and individual capacities; ANN
WISE, sued in her official and
individual capacities,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Mary K. Dimke, District Judge, Presiding
Argued and Submitted February 11, 2026
Seattle, Washington
Filed August 26, 2026
Before: M. Margaret McKeown, William A. Fletcher, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge McKeown;
Dissent by Judge Bumatay
2 GRENNING V. KEY
SUMMARY *
First Amendment
The panel reversed the district court’s summary
judgment for prison officials and remanded in Neil
Grenning’s 42 U.S.C. § 1983 action alleging that his First
Amendment rights were violated when prison officials
refused to submit a story he wrote to a university literary
journal.
While incarcerated, Grenning participated in a prison
writing program and wrote a short story that referred to a
moment of sexual intimacy. When he submitted his story to
a university journal affiliated with the writing program,
defendant Ann Wise, the prison’s Community Partnership
Program Coordinator, intercepted his outgoing story and
returned it to him because she deemed it “inappropriate for
publication” because of its “sexual content.” Grenning then
mailed the story directly to the university and complained to
defendant James Key, the prison superintendent. Key
subsequently endorsed the decision to block Grenning’s
submission and warned Grenning he would be removed from
the writing program if he again sent correspondence directly
to a journal volunteer without prior approval.
Grenning filed suit, alleging that the prison violated his
First Amendment rights by censoring his submission and
retaliating against him for exercising those rights. The
district court granted the prison’s summary judgment
motion, deciding that Wise and Key had not violated
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GRENNING V. KEY 3
Grenning’s First Amendment rights, and even if they had
violated Grenning’s rights, their actions were protected by
qualified immunity. The district court also found no
retaliation.
Reversing the district court’s summary judgment order,
including its qualified immunity determination, the panel
held that the district court erred by applying the standard in
Turner v. Safley, 482 U.S. 78 (1987), which governs most
regulations of prisoner conduct, instead of the standard from
Procunier v. Martinez, 416 U.S. 396 (1974), which governs
outgoing inmate correspondence. Because Grenning’s
censorship claim turns on a prison official’s content-driven
screening of outgoing inmate correspondence, Martinez
applied.
The panel held that viewed in the light most favorable to
Grenning, the record demonstrates genuine disputes of fact,
which, if proven at trial, would support the conclusion that
Wise’s refusal to transmit Grenning’s story to the university
journal constituted censorship prohibited by the First
Amendment. Furthermore, Martinez clearly established
Grenning’s right not to have prison officials refuse to
transmit his nonthreatening outgoing correspondence to an
outside recipient because they disapproved of its content or
feared the public’s reaction to it.
The panel noted that they would be compelled to reverse
even if Turner applied because there was no valid, rational
connection between the decision to bar Grenning’s story and
the asserted penological interests.
The panel further held that the district court erred in
granting summary judgment on Grenning’s retaliation claim
by relying on an Eighth Amendment retaliation case. On
remand, the district court should address the claim under
4 GRENNING V. KEY
Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005), which
sets forth the basic elements for a viable claim of First
Amendment retaliation in the prison context.
Dissenting, Jude Bumatay would apply Turner’s
deferential standard and conclude that there was no First
Amendment violation. Even if there were a First
Amendment violation, he would hold that Wise and Key are
entitled to qualified immunity because Grenning’s right to
publish work—without approval—created while
participating in a prison program was not clearly established
at the time of Wise and Key’s conduct. Judge Bumatay
would also affirm the district court’s summary judgment for
Key on the retaliation claim, because Key’s threat was a
result of Grenning violating the writing program’s policies,
not “because of” Grenning’s protected conduct.
COUNSEL
Brendan D. Duffy (argued), Chloe M. Meade, Garrett W.
Callen, Eric M. Walker, and William D. Coglianese, Jones
Day, Washington, D.C., for Plaintiff-Appellant.
Michelle M. Young (argued), Assistant Attorney General,
Corrections Division; Nicholas W. Brown, Washington
Attorney General; Office of the Washington Attorney
General, Olympia, Washington; Kelly A. Fitzgerald,
Assistant Attorney General, Office of the Washington
Attorney General, Spokane, Washington; for Defendants-
Appellees.
GRENNING V. KEY 5
OPINION
McKEOWN, Circuit Judge:
Free speech does not vanish at the prison gate. In the
course of his incarceration and as part of a prison writing
program, Neil Grenning wrote a short story that referred to a
moment of sexual intimacy. When he submitted his story to
a university journal affiliated with the writing program, a
prison employee barred the story as “inappropriate for
publication” because of its “sexual content.” Grenning then
mailed the story directly to the university and complained to
the prison superintendent, who subsequently endorsed the
decision to block his submission. The superintendent also
warned Grenning that if he ever again sent correspondence
directly to a journal volunteer without prior approval, he
would be removed from the writing program.
In rejecting Grenning’s First Amendment censorship
claim, the district court sidestepped the standard that governs
outgoing inmate correspondence as laid out in Procunier v.
Martinez, 416 U.S. 396 (1974). The court also misconstrued
the standard that applies to Grenning’s retaliation claim. We
reverse and remand.
Background
Grenning is an inmate at Airway Heights Corrections
Center (“the prison”) serving a sentence for multiple sex
crime convictions. While incarcerated, Grenning enrolled in
a writing program. The Writers in the Community course is
sponsored by Eastern Washington University (“EWU” or
“the university”) and encourages participants to develop
their writing skills and submit their work for potential
publication in InRoads, a literary journal.
6 GRENNING V. KEY
Writers in the Community courses are held in various
settings in and around Spokane, and InRoads publishes
works by participants of all ages, including elementary
school students. The writing program informed enrolled
inmates that to be submitted to InRoads, their works needed
to be “approved” by Ann Wise, the prison’s Community
Partnership Program Coordinator. Everyone, prisoner or
otherwise, who submitted their writing to InRoads had to
acknowledge that “the audience of InRoads includes
children and special populations, sensitive to any kind of
explicit material.” The submission agreement cautioned that
InRoads may feature “[m]ature themes and adult language,”
with “inclusion in InRoads . . . left to the managing editor’s
discretion.” Prior works published in InRoads had included
references to rape, teen pregnancy, drug use, suicide, arson,
and death. The Writers in the Community syllabus required
students to read books that included depictions of a young
woman’s sexual assault by a group of boys (Sandra
Cisneros’s The House on Mango Street) and a character’s
fantasy of forcefully carrying a woman upstairs and tying her
to a bed (Tim O’Brien’s The Things They Carried).
As part of the program, Grenning wrote “Dark Room,” a
short story that explored the protagonist’s relationship with
his daughter, Kayla, and his attempts to talk to Kayla about
his wife, who had died by suicide. “Dark Room” described
a moment of sexual intimacy with his late wife:
Smell of her breath after jogging a mile to
Einstein’s Bagels and back before dawn.
Before she was pregnant. Before five hours
of labor ended with you. That fiery sweat of
exuberant energy when we screwed barefoot
against the unfinish drywall of the washroom.
GRENNING V. KEY 7
I smell fresh caulk and syrup sticky sex the
same way. Time before Diagnosed
Conditions ending in Ideation. None of
which I can explain to Kayla.
Grenning read this story to his class, and one of the
instructors told him that it was “well-written” and “close to
being finished.”
The Washington Department of Corrections policy
governing publications states that “[m]ail to or from
offenders, including publications . . . may be rejected” if the
“[p]ublications . . . contain significant or repeated instances
of content defined per WAC 137-48-020(13)(a)-(b) . . . .”
The Washington regulation cited in the policy defines
“[s]exually explicit materials” to describe, among others, “a
sex act which includes, but is not limited to, genital-genital,
oral-genital, anal-genital, or oral-anal contact/penetration,
genital or anal contact/penetration with an inanimate object,
masturbation, and/or bodily excretory behavior.” WAC
137-48-020(13)(b). The policy also states that
“[p]ublications with content that violates any Department
policy or facility specific procedure will be referred to the
Publication Review Committee for further review and a final
decision” and that “[p]ublications initially rejected as
sexually explicit material per WAC 137-48-020 may be
approved by the committee for artistic, health/medical, and
educational purposes.” The policy further prescribes general
rules for outgoing mail, including that envelopes “be
stamped with the following or similar message: ‘This was
mailed by an offender confined at the Washington State
Department of Corrections facility. Its contents are
uncensored.’” In this appeal, the prison officials
8 GRENNING V. KEY
acknowledge that Grenning’s story “was not graphic enough
to violate the prison’s restrictions.”
Wise had requested that the Writers in the Community
staff route all submissions to InRoads through her. After
Grenning submitted his story to program staff, Wise
reviewed it and barred it from publication. In her note to
Grenning after intercepting his story, Wise stated: “Due to
sexual content this writing submission is inappropriate for
publication in the InRoads Book that includes distribution to
minors.” Wise did not cite any policy that the story allegedly
violated. Nor is there indication that Grenning’s story was
ever reviewed by the Publications Review Committee.
Facing Wise’s interception, Grenning mailed his story
directly to Eastern Washington University. He also wrote a
letter to prison superintendent James Key, objecting to
Wise’s interception and letting Key know that he had mailed
the story to the university. Key responded:
It is the responsibility of the [Community
Partnership Program Coordinator] to ensure
nothing leaves the institution through the
volunteer program that could cause some
negative publicity for the facility and
department. I concur with her decision to not
allow your story to be published by the
volunteer group Writers in the Community.
You stated in your letter that you had to send
your story directly to EWU. This causes me
concern, as you have bypassed our
established processes. Policy does not allow
for the volunteers to accept any
correspondence without prior approval. If
GRENNING V. KEY 9
you send any correspondence directly to a
volunteer again without prior approval, you
will not be allowed to participate in this
volunteer program.
After receiving the message from Key, Grenning filed a
grievance with the prison. In notes taken after a meeting
with the grievance coordinator, Grenning wrote that the
coordinator “said he did not know any reason why
[Grenning] would not be able to send material to a university
through the mail.”
Unbeknownst to Grenning, Wise also corresponded with
the InRoads staff. A student director offered to edit “Dark
Room” to address the concerns: “I have no objection to to
[sic] attempting to edit the story in such a way that the
problematic paragraph can be dropped entirely[.]” The
student director also acknowledged that “even if Ann [Wise]
had approved the piece in question,” InRoads editorial staff
“would most likely not have approved it after that (or only
with cuts).” Wise asked the student director to send the story
back to Grenning and tell him, “Thank you for your
submission but this needs to go through the proper channels
at the prison.”
After his internal efforts went nowhere, Grenning filed
this lawsuit and alleged that Key, Wise, and the prison
violated his First Amendment rights by censoring his
submission and retaliating against him for exercising those
rights. He immediately sought discovery and requested that
the prison produce the policy that governs screening of
inmate publications as well as Wise’s job description that
authorized her to bar submissions to InRoads. It appears that
the prison did not produce the requested documents by the
required deadline. When Grenning served requests for
10 GRENNING V. KEY
admission to Key and Wise after the discovery deadline, they
replied that the requests were untimely. Stymied on
discovery requests not fully answered, Grenning filed a
motion to stay summary judgment until he had received the
discovery. Later, when the prison moved for summary
judgment and Grenning attempted to file an opposition
through the prison counselor, the scanned document was
apparently never forwarded to the legal librarian for
electronic filing.
The district court granted the prison’s summary
judgment motion, deciding that Wise and Key had not
violated Grenning’s First Amendment rights because the
prison had “an important government interest in preventing
inmates from using their educational programs to
disseminate sexual material to children” and “an interest in
ensuring nothing leaves the institution through the [Writers
in the Community] that could cause negative publicity for
the facility or department,” protected by Turner v. Safley,
482 U.S. 78 (1987). The court further decided that even if
Key and Wise’s refusal to transmit “Dark Room” to InRoads
had violated Grenning’s rights, their actions were protected
by qualified immunity. The court also found no retaliation
and denied Grenning’s motion to stay the summary
judgment proceedings pending receipt of discovery.
Grenning’s motion to vacate and set aside the judgment
under Rule 59(e) was denied. With the benefit of pro bono
counsel, Grenning timely appealed the denial of summary
judgment and the motion to vacate and set aside the
judgment. 1
1
Grenning’s pro bono counsel has capably discharged his responsibility,
and we thank him for his substantial efforts.
GRENNING V. KEY 11
Analysis
Grenning’s appeal turns on two constitutional theories
and two claims of procedural error. He argues that Wise’s
refusal to forward his short story to InRoads constituted
censorship that violated the First Amendment, and that those
rights were clearly established at the time of the violation.
He also contends that Key’s threat to expel him from the
writing program was “textbook retaliation” in violation of
the First Amendment. Separately, Grenning claims that the
district court wrongly denied him additional discovery
despite his diligence and the demonstrated effect of that
discovery on the summary judgment decision. He finally
argues that the district court’s refusal to consider his belated
opposition brief violated Rule 56. The parties focused most
of their time on the censorship claim, which is a logical
starting point.
I. Censorship
The parties acknowledge the baseline principle that
“[t]here is no iron curtain drawn between the Constitution
and the prisons of this country.” Wolff v. McDonnell, 418
U.S. 539, 555–56 (1974). Grenning does not argue that he
has a constitutionally protected right to publication in
InRoads. See Pell v. Procunier, 417 U.S. 817, 821–22
(1974). We address instead whether Grenning had a right to
have his story transmitted to the journal for consideration.
Reviewing de novo the district court’s summary
judgment order, including its qualified immunity
determination, we reverse. See Dodge v. Evergreen Sch.
Dist. #114, 56 F.4th 767, 776 (9th Cir. 2022). The district
court applied the four-factor test from Turner, which
governs most regulations of prisoner conduct, instead of the
standard from Martinez, which continues to apply to
12 GRENNING V. KEY
outgoing inmate correspondence. Viewed in the light most
favorable to Grenning, id., the record demonstrates genuine
disputes of fact, which, if proven at trial, would support the
conclusion that Wise’s refusal to transmit “Dark Room” to
InRoads constituted censorship prohibited by the First
Amendment. See Martinez, 416 U.S. at 413–15. Martinez
and its progeny clearly established Grenning’s right not to
have prison officials refuse to transmit his nonthreatening
outgoing correspondence to an outside recipient because
they disapproved of its content or feared the public’s
reaction to it, unless the officials could establish a
sufficiently close fit between the restrictions and a concrete
substantial or important interest in security, order, or
rehabilitation. See id.; Barrett v. Belleque, 544 F.3d 1060,
1062 (9th Cir. 2008) (per curiam).
We conclude that Martinez applies because this claim,
like the ones asserted in Martinez, turns on a prison official’s
content-driven screening of outgoing inmate
correspondence. Martinez announced the following
standard under which “censorship of prisoner mail is
justified”:
First, the regulation or practice in question
must further an important or substantial
governmental interest unrelated to the
suppression of expression. Prison officials
may not censor inmate correspondence
simply to eliminate unflattering or
unwelcome opinions or factually inaccurate
statements. Rather, they must show that a
regulation authorizing mail censorship
furthers one or more of the substantial
governmental interests of security, order, and
GRENNING V. KEY 13
rehabilitation. Second, the limitation of First
Amendment freedoms must be no greater
than is necessary or essential to the protection
of the particular governmental interest
involved. Thus a restriction on inmate
correspondence that furthers an important or
substantial interest of penal administration
will nevertheless be invalid if its sweep is
unnecessarily broad.
Id. at 413–14. As the Court explained, the “interest of
prisoners and their correspondents in uncensored
communication by letter, grounded as it is in the First
Amendment, is plainly a ‘liberty’ interest within the
meaning of the Fourteenth Amendment even though
qualified of necessity by the circumstance of imprisonment.”
Id. at 418. That liberty interest accordingly demands
appropriate “minimum procedural safeguards.” Id. at 417.
The standard announced in Martinez governs this case. 2
Indeed, both Grenning’s case and Martinez involve a
strikingly similar sequence of constitutionally relevant facts.
Wise’s actions echo those of the officials in Martinez, who
screened “outgoing personal mail” and, when they
disapproved of a prisoner’s writing, could “refuse to mail or
deliver the letter and return it to the author.” Id. at 399–400.
One of the rules that the Court held unconstitutional
permitted prison officials to censor correspondences that
they deemed “lewd” or “obscene.” Id. at 400. Wise, too,
2
We reject the argument that the First Amendment is not implicated
because “Dark Room” eventually made it to InRoads. The very
“refus[al] to mail or deliver” outgoing inmate correspondence may
constitute censorship, even if that correspondence reaches its destination
by other means. Martinez, 416 U.S. at 400, 417.
14 GRENNING V. KEY
intercepted Grenning’s outgoing short story and returned it
to him because she deemed the story “inappropriate for
publication” because of its “sexual content.” The rejection
came even though other issues of InRoads had allowed
“[m]ature themes and adult language,” and the syllabus had
assigned works containing substantially more explicit
material and stated only that “[s]ubmissions with graphic
content” would be returned. Wise’s rejection lacked any
explanation based on “the substantial governmental interests
of security, order, and rehabilitation” that the Court has
recognized as constitutionally valid. Id. at 413. Rather, her
decision turned on elastic, content-based “discretion[ary]”
judgments—precisely what was deemed unconstitutional in
Martinez. Id. at 415. The rationale that Key eventually
provided in Grenning’s case—that Wise had “to ensure
nothing leaves the institution” that might cause “negative
publicity” to the prison—mirrors the logic of the rules
invalidated in Martinez that worked “simply to eliminate
unflattering or unwelcome” perspectives, and “invited
prison officials . . . to apply their own personal prejudices
and opinions.” Id. at 413, 415. The adequacy of the prison’s
rationale goes to the legitimacy of the penological interests
asserted, whether the restrictions imposed were generally
necessary to give effect to those interests, and the procedural
rights that Grenning was guaranteed. Indeed, Grenning was
guaranteed “minimum procedural safeguards,” possibly
including review from the Publications Review Committee.
Id. at 417. There is no indication in the record that the prison
made good on that guarantee. If proven at trial, that failure
would show that Grenning was deprived of the opportunity
to have “Dark Room” considered by InRoads without
impediment by the prison. These similarities demonstrate
that Grenning’s case clearly comes within Martinez’s ambit.
GRENNING V. KEY 15
To be sure, rehabilitation is a “legitimate penological
interest[],” see Turner, 482 U.S. at 89, and an “important or
substantial” one, Martinez, 416 U.S. at 413. But the broad
claim that censoring Grenning’s story satisfies the goal of
rehabilitation as one of “enhancing community safety,
reducing recidivism, and achieving accountability through
effective correctional programs,” Brief for Appellees at 7,
does not meet Martinez’s “less deferential” standard.
Thornburgh v. Abbott, 490 U.S. 401, 409 (1989). If we
accepted that level of generality, rehabilitation would stop
being an important or substantial governmental interest and
become the exception that swallows the rule. On this view,
an official could suppress any content that she deems
inconsistent with conclusory assertions of “accountability,”
“appropriate communication standards,” or “appropriate
boundaries” by claiming that doing so would be
rehabilitative. Brief for Appellees at 37. The Martinez
standard requires “a closer fit,” with regulations on outbound
mail tailored to prevent “danger to the community inside the
prison.” Thornburgh, 490 U.S. at 411–12. Nor can the
specter of “negative publicity” to the prison justify the
rejection. Brief for Appellees at 38. 3
Simply put, the record supports the view that Key and
Wise refused to allow Grenning’s written expression to leave
the prison based on its content. That the intended destination
3
The Court in Thornburgh clarified that Martinez did not impose a “least
restrictive means requirement,” Thornburgh, 490 U.S. at 411, and we do
not endorse one here. Contra Dissent at 38–40. But neither Turner,
which the dissent favors, see Dissent at 34–38, nor Martinez, which the
dissent would sub silentio overturn, id. at 38–39, blessed the use of the
most restrictive approach to outgoing prisoner correspondence. Invoking
the “rehabilitation” moniker does not magically make censorship
constitutional.
16 GRENNING V. KEY
of Grenning’s writing was a literary journal does not alter
the analysis.
The argument that “a screening requirement” for
outgoing inmate mail does not regulate inmate speech runs
smack into the teaching of Martinez. The rights protected
by the First Amendment may not be “renamed away” or have
their “protections nullified by mere labels.” Chiles v.
Salazar, 146 S. Ct. 1010, 1021 (2026) (citation modified).
The government cannot refuse to externally transmit a short
story to a literary journal because it contains a passing
reference to sexual intimacy and call that refusal
“screening,” “prescreening,” or an unspecified “prison
approval” rule. Call it what you want, the refusal was
content-based, pure and simple. The government cannot foil
a First Amendment claim with a thesaurus.
Viewed in the light most favorable to Grenning as the
nonmovant, Dodge, 56 F.4th at 773, the record bespeaks
genuine issues of material fact that relate to the alleged
constitutional violation. Those facts relate to the claimed
policy governing Grenning’s submission, the extent and
nature of the procedural safeguards that the policy provided
to inmate submissions, whether Grenning’s attempt to
submit “Dark Room” to InRoads violated that policy, the
reasons why Wise decided to bar the story and Key
supported that decision, and the availability of alternatives
such as editing the contested sentence out of the story. Those
issues render summary judgment inappropriate. Id.
In light of Martinez, we conclude that Grenning had a
clearly established right not to have Key and Wise refuse to
transmit his nonthreatening outgoing written expression
because they disapproved of its content or feared the public’s
reaction to it, unless they could establish a sufficiently
GRENNING V. KEY 17
“close[] fit,” Thornburgh, 490 U.S. at 412, between that
restriction and “one or more of the substantial governmental
interests of security, order, and rehabilitation,” Martinez,
416 U.S. at 413, in a way that was “unrelated to the
suppression of expression,” id. at 413, and as long as the
restriction’s “sweep” was not “unnecessarily broad,” id. at
414.
As the discussion of the similarities between Martinez
and Grenning’s case demonstrates, supra pp. 13–14,
Martinez and its progeny “placed the . . . constitutional
question beyond debate.” White v. Pauly, 580 U.S. 73, 79
(2017) (citation omitted). Supreme Court precedent made
“the contours of the right sufficiently clear” such that “every
reasonable official would have understood that what he is
doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731,
741 (2011) (citation modified). Put differently, because the
gravamen of the inquiry is “fair warning” and “fair notice,”
Hope v. Pelzer, 536 U.S. 730, 741–42 (2002), Grenning need
not point us to “a case directly on point.” Al-Kidd, 563 U.S.
at 741. But with Martinez, he has certainly come as close as
possible.
The Department of Corrections policy made the same
rule concrete for Key and Wise. The policy allowed
inspection and reading of mail to prevent contraband, threats
to “facility order or security,” and criminal activity and
expressly explained that mail rejection would be based on
“legitimate penological interests.” The policy also
contemplated that “the contents” of an inmate’s mail that left
the prison would be “uncensored,” and provided that only
publications with “sexually explicit material” such as the act
described in “Dark Room” would need to “contain
significant or repeated instances” of prurient content to be
subject to rejection. While the policy does not itself clearly
18 GRENNING V. KEY
establish a constitutional right, it nonetheless remains
“relevant . . . to whether reasonable officers would have
been on notice that” their conduct violated the First
Amendment. Drummond ex rel. Drummond v. City of
Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003).
The backdrop of the Supreme Court’s jurisprudence
regarding content-based regulations of speech serves to
explain our conclusion. It is well established that “above all
else, the First Amendment means that government has no
power to restrict expression because of its message, its ideas,
its subject matter, or its content.” Police Dep’t of City of
Chicago v. Mosley, 408 U.S. 92, 95 (1972). In view of “the
First Amendment’s jealous protections for the individual’s
right to think and speak freely,” the Court has “long held that
[state action] regulating speech based on its subject matter
or ‘communicative content’ [is] ‘presumptively
unconstitutional.’” Chiles, 146 S. Ct. at 1021 (citation
omitted). 4 While the shape of the doctrine has changed
considerably since the Founding, “a demand that the
government act neutrally with respect to the content of the
speech it regulates . . . has been a feature of free-speech law
in the United States since the eighteenth century.”
4
Prison writings have an equally storied past. See, e.g., Boethius, The
Consolation of Philosophy (Victor Watts trans., Penguin Classics rev.
ed. 1999) (philosophical work written while Boethius was imprisoned
and awaiting execution for treason in the sixth century); The Forlorn
Hope, Mar. 24, 1800 (newspaper written and published by inmates in a
New York debtors’ prison); Oscar Wilde, De Profundis and Other
Prison Writings (Colm Tóibín ed., Penguin Classics 2000) (1905) (letter
written during Wilde’s imprisonment for gross indecency at Reading
Gaol); Martin Luther King, Jr., Letter from Birmingham Jail (Apr. 16,
1963), University of Alabama Libraries Special Collections,
https://perma.cc/5N7J-FCXN (letter written during King’s Birmingham
confinement in response to criticism of the civil rights movement).
GRENNING V. KEY 19
Genevieve Lakier, A Counter-History of First Amendment
Neutrality, 131 Yale L.J. Forum 873, 875 (2022). That
presumption generally means that “content-based
restrictions trigger strict scrutiny.” Chiles, 146 S. Ct. at 1021
(citation modified).
The Court’s decision in Martinez brought inmate mail
into the First Amendment’s analysis of content-based speech
restrictions. To be sure, the protections of the First
Amendment must be “applied in light of the special
characteristics” of the environment. Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). In the
prison context, the Court has applied those protections with
an effort to give “due regard [to] the ‘inordinately difficult
undertaking’ that is modern prison administration.”
Thornburgh, 490 U.S. at 407 (quoting Turner, 482 U.S. at
85).
For a large part of their history, however, the federal
courts “adopted a broad hands-off attitude toward problems
of prison administration,” including regulations on prisoner
speech. Martinez, 416 U.S. at 403. That attitude reflected a
notion that the prisoner was “the slave of the State.” Ruffin
v. Commonwealth, 62 Va. (21 Gratt.) 790, 796 (1871). As
that understanding began to evolve in the lower courts, see,
e.g., Weller v. Dickson, 314 F.2d 598, 599–601 (9th Cir.
1963) (a prisoner could bring an “action[] for damages under
the Civil Rights Act, 42 U.S.C. §§ 1981–1988, against
various officials of the State of California”), the Supreme
Court recognized a state prisoner’s right to sue prison
officials under Section 1983 for First Amendment violations
in Cooper v. Pate, 378 U.S. 546 (1964) (per curiam). The
Court’s decision in Martinez came a decade later and
recognized that “a policy of judicial restraint” with respect
to prison administration “cannot encompass any failure to
20 GRENNING V. KEY
take cognizance of valid constitutional claims.” Martinez,
416 U.S. at 405.
Following Martinez, the Court in Turner articulated a
more deferential reasonableness test for ordinary prison
regulations. See 482 U.S. at 90. The Court subsequently, in
Thornburgh, applied the Turner standard to incoming
publications while preserving the Martinez heightened
standard for outgoing correspondence. 490 U.S. at 412–13.
The Court recognized both that outgoing correspondence
was Martinez’s “central focus” and that “the implications of
outgoing correspondence for prison security are of a
categorically lesser magnitude than the implications of
incoming materials.” Thornburgh, 490 U.S. at 412–13.
More recently, the Court applied Turner to inmate-to-inmate
legal correspondence and declined to recognize heightened
protection “above and beyond the protection normally
accorded prisoners’ speech” in that context, Shaw v.
Murphy, 532 U.S. 223, 231 (2001), but “did not address the
right of prisoners to send mail outside the prison—the
regulation of which is governed by the Martinez standard.”
Koutnik v. Brown, 456 F.3d 777, 784 n.4 (7th Cir. 2006).
Each time the Court has considered the scope of Martinez, it
has preserved the application of that standard to outgoing
inmate correspondence, while also reaffirming the principle
that incarceration does not send the inmate into a void
beyond the Constitution’s reach.
We too have reaffirmed that regulation of outgoing
inmate correspondence sits squarely in Martinez’s domain.
See Barrett, 544 F.3d at 1062 (“Procunier [v. Martinez] is
controlling law in the Ninth Circuit and elsewhere as applied
to claims involving outgoing prisoner mail.”); Lane v.
Salazar, 911 F.3d 942, 945, 948–50 (9th Cir. 2018)
(applying Martinez to discipline for statements in outgoing
GRENNING V. KEY 21
letters and holding that threats of bodily harm “address[]
legitimate penological concerns in a manner that is
sufficiently narrow to satisfy constitutional concerns”); Lane
v. Swain, 910 F.3d 1293, 1294, 1297 (9th Cir. 2018)
(holding that Federal Bureau of Prisons Prohibited Acts
Code 203, which bars “[t]hreatening another with bodily
harm or any other offense” constitutes “a sufficiently ‘close
fit’ with [the asserted] legitimate interests to pass the
Procunier [v. Martinez] test”); Witherow v. Paff, 52 F.3d
264, 265 (9th Cir. 1995) (per curiam) (“When a prison
regulation affects outgoing mail as opposed to incoming
mail, there must be a ‘closer fit between the regulation and
the purpose it serves.’” (quoting Thornburgh, 490 U.S. at
412)). We have, by contrast, applied Turner to assess “the
constitutionality of prison rules that restrict the ingress and
possession of sexually explicit materials.” Prison Legal
News v. Ryan, 39 F.4th 1121, 1129 (9th Cir. 2022) (emphasis
added).
Other circuits similarly continue to distinguish between
outgoing and incoming prisoner correspondence. See Nasir
v. Morgan, 350 F.3d 366, 371 (3d Cir. 2003) (“Because
Thornburgh holds that Turner does not squarely overrule
Martinez as applied to outgoing mail, we will apply Turner
to incoming mail and Martinez to outgoing
correspondence.”); see also Brooks v. Andolina, 826 F.2d
1266, 1268–69 (3d Cir. 1987) (“The Turner opinion . . .
provides no support” where the prisoner was “not disciplined
for communicating with other inmates, but for the contents
of his letter to a person outside the prison system,” because
if officials “cannot censor unflattering statements made in
letters to outsiders, they also may not punish an inmate for
the contents of such letters.”); Loggins v. Delo, 999 F.2d
364, 366–68 (8th Cir. 1993) (inmate’s letter containing
22 GRENNING V. KEY
“derogatory comments” about mailroom clerk did not
“implicate [prison] security concerns” and thus the
disciplining of the inmate was unconstitutional under
Martinez); McNamara v. Moody, 606 F.2d 621, 624 (5th Cir.
1979) (“No [governmental] interest is implicated by the
mailing of non-erotic vulgarities from a prisoner to a person
on the outside,” and if a “warden’s purpose [was] to prevent
strongly worded and exaggerated criticism of prison officials
from reaching the public,” that was “precisely the sort of
purpose ruled impermissible by Martinez”). Unlike the
dissent, we are persuaded by the weight of this authority that
Martinez established an enduring “governing standard” that
applies in this instance. Dissent at 33. While the domain of
the Martinez rule has narrowed, its core—regulations that
govern inmates’ outgoing correspondence—remains intact.
We finally note that we would be compelled to reverse
even if we agreed with the view that Turner applies in this
circumstance. We have articulated the Turner factors as
follows:
(1) [W]hether there is a valid, rational
connection between the policy and the
legitimate governmental interest put forward
to justify it; (2) whether there are alternative
means of exercising the right; (3) whether the
impact of accommodating the asserted
constitutional right will have a significant
negative impact on prison guards, other
inmates and the allocation of prison resources
generally; and (4) whether the policy is an
GRENNING V. KEY 23
“exaggerated response” to the [prison]’s
concerns.
Mauro v. Arpaio, 188 F.3d 1054, 1058–59 (9th Cir. 1999)
(en banc) (quoting Turner, 482 U.S. at 89–90).
The suppression of Grenning’s story founders on the first
Turner factor, which is “a sine qua non” of the analysis.
Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990). In our
examination of that factor, we “determine whether the
governmental objective underlying the policy is
(1) legitimate, (2) neutral, and (3) whether the policy is
‘rationally related to that objective.’” Mauro, 188 F.3d at
1059 (quoting Thornburgh, 490 U.S. at 414).
On this score, although the Turner test is deferential, it
“does not make the First Amendment ‘toothless.’” Prison
Legal News, 39 F.4th at 1129 (quoting Thornburgh, 490 U.S.
at 414). We have previously applied Turner to deem
unconstitutional bans on incoming publications “that may,
could reasonably be anticipated to, could reasonably result
in, [are,] or appear[] to be intended to cause or encourage
sexual excitement or arousal or hostile behaviors, or that
depict[] sexually suggestive settings, poses or attire.” Id. at
1133. In this case, Key’s claimed goal of preventing
negative publicity obviously would not be “legitimate”
under Turner. Id. Nor would a talismanic invocation of
“sexual content,” on its own, legitimate the suppression
“Dark Room.” Look no further than the Department of
Corrections’ own policy, which bans incoming or outgoing
publications that “contain significant or repeated instances
of content defined” as “sex act[] which include[], but [are]
not limited to, genital-genital, oral-genital, anal-genital, or
oral-anal contact/penetration, genital or anal
contact/penetration with an inanimate object, masturbation,
24 GRENNING V. KEY
and/or bodily excretory behavior.” See WAC 137-48-
020(13)(b).
As Key and Wise acknowledge, Grenning’s story “was
not graphic enough to violate [those] restrictions.” The
policies regarding sexual content that we have previously
deemed legitimate under Turner have included bans on
“materials that show frontal nudity,” Mauro, 188 F.3d at
1057, or bans on incoming mail “containing portrayals of
certain actual or simulated sexual acts” that nonetheless
permit material that has “scholarly value, or general social
or literary value,” Bahrampour v. Lampert, 356 F.3d 969,
972 (9th Cir. 2004). The decision to bar publication of
“Dark Room” does not resemble those restrictions.
Nor is a generalized interest in rehabilitation sufficient
in this circumstance. See Turner, 482 U.S. at 89. Typically,
we have required a “policy of excluding sexually explicit
materials” to be “expressly aimed at maintaining jail
security, rehabilitating inmates and reducing sexual
harassment of . . . detention officers.” Mauro, 188 F.3d at
1059 (emphasis added) (citing Thornburgh, 482 U.S. at
415). To defend a policy, prison officials “must provide
evidence” in support of their position. Walker, 917 F.2d at
385. Nothing in the record even hints that barring Grenning
from submitting the story was necessary because publication
of the story could “result in prohibited sexual activity or
unwanted sexual behavior, including rape” inside the prison.
Bahrampour, 356 F.3d at 972. 5
5
Even Turner does not task us with divining the purported reasons for
the prison’s regulation of inmate speech. We may not speculate, as the
dissent does, whether permitting Grenning to submit his story for
consideration by InRoads would “endanger[] both the prison and the
public.” Dissent at 37. Prison officials must “put forth” evidence of such
GRENNING V. KEY 25
Relatedly, Key and Wise did not “draw distinctions”
between permissible and impermissible story submissions
“solely on the basis of their potential implications for prison
security.” Thornburgh, 490 U.S. at 415 (emphasis added). 6
In that sense, their decision to bar Grenning’s story because
it contained the words “exuberant energy,” “screwed” or
“syrup sticky sex,” and because it would cause negative
publicity for the prison was not “‘neutral’ in the technical
sense in which [the Court] meant and used that term in
Turner.” Id. at 415–16.
Saying that the First Amendment’s requirements are
satisfied because “the presence of sexually explicit materials
undermines [the Department’s] goals” simply “goes too far.”
Prison Legal News, 39 F.4th at 1133. We identify no “valid,
rational connection” between the decision to bar Grenning’s
story and the interests asserted here. Turner, 482 U.S. at 89
(citation omitted). Whether under Martinez or Turner, the
government would need to demonstrate much more to
prevail at summary judgment. Because the suppression of
“Dark Room” “does not satisfy Turner’s first factor, . . . we
need not consider the remaining factors.” Prison Legal
News, 39 F.4th at 1133.
a danger before we may “defer[] to [their] judgment.” Walker, 371 F.2d
at 386.
6
The word “solely” in the Court’s decision in Thornburgh is no
ornament. We reject the dissent’s gloss on the neutrality requirement—
that “[a] policy is neutral if its goal is not to suppress expression,”
Dissent at 34—because that approach oversimplifies the careful
connection between a prison’s regulation of inmate speech and the
“potential effect on the prison’s legitimate objectives” that the Supreme
Court has drawn. Mauro, 188 F.3d at 1059.
26 GRENNING V. KEY
II. Retaliation
In the prison context, a “viable claim of First
Amendment retaliation” must contain the following 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 district court erred in granting
summary judgment on Grenning’s retaliation claim.
Under the First Amendment, the “mere threat of harm
can be an adverse action, regardless of whether it is carried
out[,] because the threat itself can have a chilling effect.”
Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009).
Key’s letter warned Grenning that if he “sen[t] any
correspondence directly to a volunteer again without prior
approval,” he would “not be allowed to participate in” the
Writers in the Community program. Relying on Gaut v.
Sunn, 810 F.2d 923 (9th Cir. 1987), an Eighth Amendment
case, the district court decided that “[a] threat to remove
[Grenning] from the [writing program] is not sufficient to be
the basis of a retaliation claim.” But Grenning’s is a First
Amendment case, not an Eighth Amendment case. The
district court, on remand, should address the claim under the
Rhodes standard.
GRENNING V. KEY 27
According to Key, the Department’s volunteer policy
states that volunteers could not “[a]ccept correspondence . . .
from individuals unless approved by” prison officials. But
the volunteer policy says nothing about an inmate sending
correspondence to volunteers. Key’s letter expresses
concern that Grenning has “bypassed [the prison’s]
established processes,” but does not explain what those
processes are. The publication agreement that Grenning
signed upon submitting “Dark Room” to InRoads also
invited the signatory to contact the program’s student
director for “further information.” It is therefore unclear
whether a policy concerning volunteer contact existed, and
whether Grenning violated it by sending “Dark Room”
directly to InRoads. It is also not clear whether the student
director who received the submission, and who “receives
a . . . tuition remission and a stipend” as part of their work in
the writing program, would qualify as a “volunteer” under
any claimed policy. This lack of clarity bespeaks genuine
issues of material fact that render summary judgment
inappropriate.
III. Claims of Procedural Error
Because summary judgment was improper on the current
record, the district court’s judgment must be vacated. We
need not decide whether the court abused its discretion in
denying Grenning’s motions for additional discovery and
post-judgment relief. See Arandell Corp. v. Centerpoint
Energy Servs., Inc., 900 F.3d 623, 635 (9th Cir. 2018)
(declining to reach a Rule 56(d) challenge after reversing the
grant of summary judgment). Those matters can be
addressed anew on remand.
REVERSED and REMANDED.
28 GRENNING V. KEY
BUMATAY, Circuit Judge, dissenting:
Neil Grenning—a serial child sex offender—enrolled in
a voluntary creative writing class run by his prison’s
rehabilitation program. Inmates in the class had the
opportunity to submit their work product for publication in a
college literary magazine, but only with the approval of the
prison program’s coordinator. As part of this class,
Grenning wrote a short story and submitted it for approval.
The story referred to a couple “screwing barefoot” and
having “syrup sticky sex.” When he submitted the story for
approval, the program coordinator rejected it as
inappropriate for publication. Did that rejection violate the
First Amendment?
We have two choices for the governing doctrine here.
Under Procunier v. Martinez, 416 U.S. 396 (1974), a prison
regulation restricting an inmate’s speech “must further an
important or substantial governmental interest unrelated to
the suppression of expression,” and the restriction “must be
no greater than is necessary or essential to the protection of
the particular governmental interest involved.” Id. at 413.
But according to Turner v. Safley, 482 U.S. 78 (1987),
“when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests.” Id. at 89.
Whether Turner’s deferential standard or Martinez’s
heightened standard applies dictates the outcome here.
The majority applies Martinez and concludes that the
answer is “yes.” But that’s wrong. Martinez is a narrow
carveout from the general rule announced in Turner and
concerns only prisoners’ outgoing correspondence. It has
never been applied to a prisoner’s speech created as part of
a prison rehabilitation program. So, in my view, this case
GRENNING V. KEY 29
falls under Turner. And recognizing that “prison officials
are to remain the primary arbiters of the problems that arise
in prison management,” Shaw v. Murphy, 532 U.S. 223, 230
(2001), I would apply Turner’s deferential standard and
conclude that there was no First Amendment violation.
The majority also reverses the district court’s grant of
summary judgment for the prison officials on Grenning’s
retaliation claim. The majority errs here too. In this case, in
violation of prison and program rules, Grenning directly
contacted a student volunteer to the prison’s rehabilitation
program. And a prison official’s warning to Grenning that
he would be excluded from prison programs if he continued
to violate program rules is not First Amendment retaliation.
Because prison officials are entitled to greater deference
in administering prison programs, I respectfully dissent.
I.
Background
Neil Grenning is serving a prison sentence for dozens of
child sex abuse convictions, including child rape, child
molestation, and sexual exploitation of a minor. In 2019,
Grenning’s prison hosted a creative writing class for
inmates. The course was part of the prison’s Community
Partnership Program, a program that “provid[es]
opportunities for positive change” for inmates through
“workshops, activities, events, and programs” that
“promot[e] personal growth” and “reduce idleness.” The
prison’s Community Partnership Program Coordinator, Ann
Wise, is tasked with planning, coordinating, and overseeing
those programs, including the creative writing class.
The class was optional and subject to significant
disciplinary strictures. Inmates needed to sign up if they
30 GRENNING V. KEY
wanted to enroll. And student volunteers at Eastern
Washington University led class sessions. As part of the
class, participating inmates could submit written work for
publication in a literary magazine run by the University
called InRoads. To submit their work, inmates needed to
sign a publication agreement acknowledging that “the
audience of InRoads includes children and special
populations, [who are] sensitive to any kind of explicit
material” and that “[s]ubmissions with graphic content will
be returned to the author” and denied. And any proposed
pieces needed to be “completed and approved by Ms. Wise”
before they could be submitted for publication. So, under
prison policy, Wise had to review pieces that inmates sought
to publish in InRoads.
Grenning enrolled in the class and wrote a five-page
short story. The story, written from the perspective of a
widowed father, explores the difficulty of communicating
the main character’s grief to his young daughter. Grenning’s
story includes a passage about a memory that the main
character has involving his late wife: “That fiery sweat of
exuberant energy when we screwed barefoot against the
unfinished drywall of the washroom. I smell fresh caulk and
syrup sticky sex the same way.”
Around the last scheduled class session, Grenning tried
to publish his short story in InRoads. He signed the
publication agreement and sent a copy of the story to Wise.
Wise rejected the draft, explaining that “[d]ue to sexual
content this writing submission is inappropriate for
publication in the InRoads book that includes distribution to
minors.” After receiving Wise’s rejection, Grenning tried to
have his work published by sending a copy directly to a
student volunteer from the class. He also wrote a letter to
James Key, the prison’s superintendent, complaining that
GRENNING V. KEY 31
Wise acted beyond her authority. Key replied that Wise was
responsible for “ensur[ing] that nothing leaves the institution
through the volunteer program that could cause some
negative publicity for the facility and department.” Key
agreed with Wise’s decision and chastised Grenning for
bypassing the class’s policy by sending his story directly to
a student volunteer. Key noted that prison policy “does not
allow for volunteers to accept any correspondence without
prior approval.” If Grenning violated the policy again, Key
warned, he would not be allowed to participate in the
program.
Grenning then sued Wise and Key. He alleged that they
violated the First Amendment by refusing to approve his
short story for publication. He also alleged that Key
retaliated against him, in violation of the First Amendment,
by threatening to bar him from future participation in prison
programs. Wise and Key removed the case to federal court,
and the district court granted summary judgment in their
favor.
II.
Defendants Didn’t Infringe Grenning’s Free Speech
Right
A.
Incarceration “was virtually nonexistent as a form of
punishment” in 18th-century colonial America. Overton v.
Bazzetta, 539 U.S. 126, 142 (2003) (Thomas, J., concurring
in the judgment). At the Founding, the most popular
punishments for crimes included fines, whipping,
banishment, and death. See The Oxford History of the
Prison: The Practice of Punishment in Western Society 112
(Norval Morris & David J. Rothman eds., 1995). Jails
32 GRENNING V. KEY
usually held those awaiting trial, or those who had been
convicted and were awaiting punishment. Id.
“Prison as it is known today and its part in the
penitentiary system were ‘basically a nineteenth-century
invention.’” Overton, 539 U.S. at 142–43 (Thomas, J.,
concurring in the judgment) (quoting Lawrence Friedman,
Crime and Punishment in American History 48 (1993)).
America’s first state penitentiary—Pennsylvania’s Walnut
Street Prison—opened in the late eighteenth century.
Matthew W. Meskell, Note, An American Resolution: The
History of Prisons in the United States from 1777 to 1877,
51 Stan. L. Rev. 839, 847–48 (1999). But the state prison
system did not become a staple of American criminal justice
until the antebellum period. See The Oxford History of the
Prison at 119.
As prisons became the standard form of punishment, the
Supreme Court wrestled with how the Constitution applies
to inmates. Two principles guided this inquiry. On the one
hand, “[p]rison walls do not form a barrier separating prison
inmates from the protections of the Constitution.” Turner,
482 U.S. at 84. But on the other, “for much of this country’s
history, the prevailing view was that a prisoner was a mere
slave of the State, who not only forfeited his liberty, but all
his personal rights except those which the law in its
humanity accords him.” Shaw, 532 U.S. at 228 (simplified);
see also Ruffin v. Commonwealth, 62 Va. (21 Grat.) 790, 796
(1871). Working through these competing views, the Court
has explained that “the constitutional rights that prisoners
possess are more limited in scope than the constitutional
rights held by individuals in society at large.” Shaw, 532
U.S. at 229; see also Walker v. Sumner, 917 F.2d 382, 385
(9th Cir. 1990) (“The Supreme Court has repeatedly
emphasized that, in determining the validity of regulations
GRENNING V. KEY 33
impinging on the constitutional rights of inmates, courts are
to accord great deference to prison officials’ assessments of
their interests.”).
Turner is the seminal case. There, the Supreme Court
“formulate[d] a standard of review for prisoners’
constitutional claims that is responsive both to the policy of
judicial restraint regarding prisoner complaints and to the
need to protect constitutional rights.” Turner, 482 U.S. at 85
(simplified). As Turner recognized, Martinez did not
articulate such a standard. Id. (noting that Martinez “did not
itself resolve the question” of what standard applied). But
the Court nonetheless worried that lower courts might
overread Martinez. See id. at 86–88; see also Thornburgh v.
Abbott, 490 U.S. 401, 409 (1989) (explaining the Turner
Court’s “concern that language in Martinez might be too
readily understood as establishing a standard of ‘strict’ or
‘heightened’ scrutiny”). So Turner clarified that Martinez
had “expressly reserved the question of the proper standard”
for a later day. Turner, 482 U.S. at 85–86 (simplified).
Turner then did what Martinez didn’t: it set a governing
standard. “[W]hen a prison regulation impinges on inmates’
constitutional rights,” Turner explained, “the regulation is
valid if it is reasonably related to legitimate penological
interests.” Id. at 89. This is a “deferential” standard, Shaw,
532 U.S. at 229, though not a “toothless” one, Thornburgh,
490 U.S. at 414 (simplified). And it “provides the test for
evaluating prisoners’ First Amendment challenges.” Shaw,
532 at 230.
B.
In applying Turner, we ask: “(1) [w]hether there is a
valid, rational connection between the policy and the
legitimate government interest put forward to justify it;
34 GRENNING V. KEY
(2) whether there are alternative means of exercising the
right; (3) whether the impact of accommodating [the right]
will have a significant negative impact on prison guards,
other inmates and the allocation of prison resources
generally; and (4) whether the policy is an exaggerated
response to the jail’s concerns.” Prison Legal News v. Ryan,
39 F.4th 1121, 1128–29 (9th Cir. 2022) (simplified).
These factors dictate that Wise and Key didn’t violate
Grenning’s First Amendment rights.
The first Turner factor asks whether a valid, rational
connection exists between the policy and the prison’s
interest in rehabilitating inmates. The prison satisfies this
factor if the objective underlying the policy is (1) legitimate,
(2) neutral, and (3) rationally related to the objective. Mauro
v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999) (en banc). It
is “beyond question” that rehabilitation is a legitimate
penological interest. Prison Legal News, 39 F.4th at 1132
(simplified). A policy is neutral if its goal is not to suppress
expression. See Mauro, 188 F.3d at 1059 (simplified). And
a prison policy is rationally related to a legitimate interest so
long as the connection between the two is not “so remote as
to render the policy arbitrary or irrational.” Prison Legal
News, 39 F.4th at 1132 (simplified).
Wise reasonably rejected Grenning’s sexually explicit
story because it violated the creative writing class’s rules.
The creative writing class was part of the prison’s
Community Partnership Program, which focuses on inmate
rehabilitation. The Program’s “Key Goals” are to “Improve
Lives” and “Keep People Safe.” The Program’s classes and
workshops—like Grenning’s creative writing class—served
the mission of “providing opportunities for positive change”
by “promoting personal growth” and “reducing idleness.”
GRENNING V. KEY 35
And any failure to follow Program rules would make it less
effective at achieving its rehabilitative purpose.
In this context, Wise’s review of Grenning’s writing not
only makes sense—it’s necessary. Her job was to manage,
oversee, and direct all aspects of the prison rehabilitation
program. Determining whether an inmate’s work complies
with program rules is a necessary component of overseeing
the prison’s rehabilitative programs. And Wise rejected
Grenning’s story because it didn’t comply with the writing
class’s rules. She explained that its “sexual content” made
it “inappropriate” for publication in the InRoads, which is
distributed to minors. Indeed, Grenning acknowledged that
InRoads was sent to “children and special populations, [who
are] sensitive to any kind of explicit material.” He thus knew
that “[s]ubmissions with graphic content” were
inappropriate for the publication. He was also told that all
“pieces needed to be completed and approved by [Ann]
Wise,” and that he had “to adhere to all [prison] behavioral
standards in both writing and in class.” And considering that
Grenning was a serial sex offender, Wise’s rejection of
sexual content serves the prison’s interest in rehabilitating
Grenning. Further, teaching inmates like Grenning to follow
program rules reinforces its rehabilitative purpose.
Wise’s action thus satisfies the first Turner factor—the
most essential factor. See Walker, 917 F.2d at 385
(describing the first factor as the “sine qua non” of the
Turner analysis). Wise’s rejection of Grenning’s sexually
explicit story was a legitimate exercise of her authority in
managing the prison’s rehabilitative programs. The
approval policy is neutral because it ensures compliance
with the prison program’s rehabilitative goals and so is not
aimed at suppressing expression. And finally, ensuring that
participating inmates follow the rules and publish only
36 GRENNING V. KEY
appropriate material—especially a serial sex offender like
Grenning—is not an “arbitrary or irrational” way to facilitate
the program’s rehabilitative goals. See id. (simplified).
Because a valid, rational connection exists between Wise’s
approval authority and the prison’s interests in
rehabilitation, the first Turner factor favors Wise and Key.
The second Turner factor also favors Wise and Key. It
asks whether “alternative means of exercising the right”
remained open to Grenning. Prison Legal News, 39 F.4th at
1128–29 (simplified). In this context, “the right in question
must be viewed sensibly and expansively” and it is
“sufficient if other means of expression” are available.
Thornburgh, 490 U.S. at 417–18. Grenning chose to enroll
in the creative writing class. He agreed to the InRoads
publication agreement prohibiting graphic content. And by
signing up for the class, he agreed to the need for Wise’s
approval to submit stories for publication.
Grenning had ample “other means of expression.” See
id. at 418. It’s uncontested that Grenning could have
submitted his short story for publication in non-InRoads
periodicals without Wise’s approval. If he had written a
story on his own—outside the auspices of the creative
writing class—he would have been free to submit it for
publication elsewhere. The approval policy only applied to
pieces written as part of the voluntary prison program and
submitted to the publication associated with that program.
So any review of Grenning’s speech was within the narrow
context of a prison program—Wise and Key imposed no
other limits on his expression.
Third, we look to “whether the impact of
accommodating the asserted constitutional rights will have a
significant negative impact” on prison personnel, other
GRENNING V. KEY 37
inmates, and prison resources. Prison Legal News, 39 F.4th
at 1129 (simplified). In other words, if accommodation “will
have a significant ‘ripple effect’ on fellow inmates or on
prison staff, courts should be particularly deferential” to the
prison. Turner, 482 U.S. at 90. Permitting prisoners to
violate prison program rules and submit writings without
approval would significantly undermine prison
rehabilitation programs. Simply, it would weaken prison
officials’ ability to enforce rehabilitation program rules and
could lead other inmates to similarly disobey those rules.
Given the role that these rules play in the prison’s
rehabilitative program, we “should defer to the informed
discretion of corrections officials.” Thornburgh, 490 U.S. at
418 (simplified). If prisoners can bend rehabilitative
program rules in the name of the First Amendment, then
those programs will become less effective—endangering
both the prison and the public.
Finally, we look to “whether the policy is an exaggerated
response to the jail’s concerns.” Prison Legal News, 39
F.4th at 1135 (simplified). Grenning has the burden “to
show that there are obvious, easy alternatives to the
regulation that would fully accommodate [his] rights at a de
minimis cost to valid penological interests.” Id. This factor
“does not impose a least-restrictive-alternative test.”
Overton, 539 U.S. at 136. Instead, it asks whether the
“prisoner has pointed to some obvious regulatory
alternative[.]” Id. Grenning has pointed to such an
alternative here: targeted revisions. He argues that Wise and
other prison officials “could have requested targeted
revisions” to his short story to address their concerns. Wise
and Key counter that nothing prevented Grenning from
editing his story and resubmitting. But this ignores that the
class syllabus had a deadline for submitting work to Wise.
38 GRENNING V. KEY
And by the time she rejected his submission, the deadline
had passed and so he could not resubmit. Given the
availability of targeted revisions, this factor may favor
Grenning.
In sum, the first, second, and third factors strongly
support Wise and Key. At best, only the fourth factor favors
Grenning. Taken together, then, the Turner factors dictate
that the approval requirement is “reasonably related to
legitimate penological interests,” and there was no First
Amendment violation. Turner, 482 U.S. at 89. I would thus
affirm the district court on this issue.
C.
The majority disagrees that Turner governs this case.
Instead, it applies the more exacting standard from Martinez,
reasoning that Martinez applies because Grenning’s short
story is “outgoing inmate correspondence.” Maj. Op. 12.
But this view ignores that Grenning’s writing was part of a
prison rehabilitative program—not the personal mail of a
prisoner seeking to share expression outside the prison walls.
Martinez was a pre-Turner decision that struck down a
prison regulation censoring a prisoner’s personal mail. See
Martinez, 416 U.S. at 415. As the Court held, such a
regulation “must further an important or substantial
governmental interest unrelated to the suppression of
expression” and the “limitation of First Amendment
freedoms must be no greater than is necessary or essential to
the protection of the particular governmental interest
involved.” Id. at 413. But in Turner, the Court explained
that a more deferential standard applies to prisoners’
constitutional claims. Turner, 482 U.S. at 89. And after
Turner, the Court clarified that Turner—not Martinez—is
the governing standard and warned against overreading
GRENNING V. KEY 39
Martinez. See Thornburgh, 490 U.S. at 410. Indeed, the
Court explained that it had “declined to apply the Martinez
standard in prisoners’ rights cases” because “Martinez could
be (and had been) read to require” a more exacting, less
deferential standard. Id. (simplified). So Martinez is
“limited to regulations concerning outgoing
correspondence.” Thornburgh, 490 U.S. at 413. In short,
Turner “provides the test for evaluating prisoners’ First
Amendment challenges.” Shaw, 532 U.S. at 230.
And this is not an “outgoing correspondence” case.
Martinez involved prison employees screening “personal
mail,” Martinez, 416 U.S. at 400—in other words, “personal
correspondence between inmates and noninmates,”
Thornburgh, 490 U.S. at 408. This case, however, involves
a sexually explicit story produced as part of a voluntary
prison rehabilitation program. Grenning was not mailing a
letter to friends or family. He was not even sharing his story
with the public at large. Unlike in Martinez, prison officials
weren’t screening Grenning’s outgoing personal
communications—instead, Grenning was attempting to
publish a story written as part of a prison rehabilitation
program without approval. So this isn’t a case about an
inmate’s ability to express himself; it’s about an inmate’s
requirement to comply with prison program rules. As stated
above, enforcing compliance with program rules serves
rehabilitative purposes.
Because Grenning’s writing was part of a prison
program, this case falls outside Martinez’s scope. Turner is
thus the proper analytical framework. And as explained
above, under Turner, there was no constitutional violation.
Instead, the majority’s rule now effectively lets the
40 GRENNING V. KEY
“prisoners run the prison”—at least when it comes to prison
rehabilitation programs. 1
Alternatively, the majority argues that it “would be
compelled to reverse even if we agreed with the view that
Turner applies in this circumstance.” Maj. Op. 22.
According to the majority, there is “no ‘valid, rational
connection’ between the decision to bar Grenning’s story
and interests asserted here.” Maj. Op. 25. But as explained
above, the policy at issue—Wise’s approval authority—is
part of her authority to manage the prison’s rehabilitative
programs. Exercising her authority to prevent a sex offender
participating in a prison program from publishing explicit
material is hardly irrational. Rather than second-guess that
decision, we “should [have] defer[red] to the informed
discretion of corrections officials.” Thornburgh, 490 U.S. at
418 (simplified).
III.
Grenning’s Retaliation Claim Fails
Grenning also argues that Key retaliated against him in
violation of the First Amendment when Key warned that
Grenning would “not be allowed to participate in” the class
if he “sen[t] any correspondence directly to a volunteer again
1
Although the majority derides the penal interest in rehabilitation as a
mere “moniker,” I would take the prison’s legitimate interest more
seriously. See Maj. Op. 15 n.3. And contrary to the majority’s assertion,
I would not sub silentio overturn Martinez. My argument is simple: this
case falls into the Turner bucket, not the Martinez bucket. We do not
have the authority to overturn Supreme Court precedent—sub silentio or
otherwise. But if I thought Martinez was wrong, I would say so. I just
don’t think it governs.
GRENNING V. KEY 41
without prior approval[.]” The district court granted
summary judgment for Key. I would affirm.
A “viable claim of First Amendment retaliation” requires
a prisoner to show “(1) that a state actor took some adverse
action against an inmate (2) because of (3) the 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) (simplified).
Even assuming that Key’s so-called “threat” was
“adverse action” and that Grenning’s short story was
“protected conduct,” Grenning’s retaliation claim fails
because Key’s threat was not “because of” Grenning’s
protected conduct. Instead, Key warned that Grenning may
be unable to participate in Community Partnership Program
activities because he violated the Community Partnership
Program’s policies. Key explained that Grenning bypassed
the prison’s established processes when he sent his story
directly to the student volunteer. Grenning admitted that he
mailed the story directly to the volunteer because Wise
rejected his short story for publication in InRoads. But the
class syllabus expressly states that inmates wishing to submit
stories for publication must have the approval of Wise.
Wise’s approval was a prerequisite to submission—not a
mere suggestion. By submitting his short story to the student
volunteer after Wise withheld her approval, Grenning
violated the class’s clear submission procedures. Key’s
warning was explicitly based on Grenning bypassing
established rules, not any protected activity.
Worse still, Grenning contacted a student volunteer
without authorization—in direct violation of prison policy.
42 GRENNING V. KEY
Indeed, prison-wide policy prohibits prison volunteers from
“[a]ccept[ing] correspondence” from inmates unless
approved by a prison administrator. Key explained this
policy to Grenning. And he explained that this policy
violation was a safety concern. So not only did Grenning
circumvent the class’s requirements by trying to submit his
short story without Wise’s approval, he also violated prison
policy by corresponding directly with a student volunteer.
Safety concerns abound with this action. Rather than
retaliation, Key warned that Grenning would face
repercussions if he continued to violate class rules and prison
policy. This isn’t First Amendment retaliation.
The majority sees things differently. Reversing the
district court’s summary judgment order, the majority
explains that the district court erred in applying Gaut v.
Sunn, 810 F.2d 923 (9th Cir. 1987) to conclude that Key’s
warning was not adverse action. Maj. Op. 26. But as
explained above, even if Key’s warning was adverse action,
that adverse action was not “because of” protected conduct.
The majority also argues that there is a genuine issue of
material fact regarding what the relevant prison “processes”
are. Maj. Op. 27. But the majority does not address the class
syllabus’s requirement that Wise approve any submissions.
If the syllabus explicitly provides for Wise to “approve” any
submissions—and Grenning submitted his story without
Wise’s approval—then he violated the class’s review
process. The record thus supports the conclusion that Key’s
warning was “because of” Grenning’s decision to blatantly
violate prison procedures. See Pike v. Hester, 891 F.3d
1131, 1137 (9th Cir. 2018) (“We may affirm a grant of
summary judgment on any basis supported by the record.”).
We should have affirmed the district court here too.
GRENNING V. KEY 43
IV.
Wise and Key Are Entitled to Qualified Immunity
Wise and Key did not violate Grenning’s First
Amendment rights. But even if they did, they are entitled to
qualified immunity. “Government officials enjoy qualified
immunity from suit under § 1983 unless their conduct
violates clearly established law.” Zorn v. Linton, 146 S. Ct.
926, 930 (2026). “In determining whether an officer is
entitled to qualified immunity, we consider (1) whether there
has been a violation of a constitutional right; and (2) whether
that right was clearly established at the time of the officer’s
alleged misconduct.” Jessop v. City of Fresno, 936 F.3d
937, 940 (9th Cir. 2019) (simplified). “A right is not clearly
established if existing precedent does not place the
constitutional question beyond debate.” Zorn, 146 S. Ct. at
930 (simplified). “The relevant precedent must define the
right with a high degree of specificity, so that every
reasonable official would interpret it to establish the
particular rule the plaintiff seeks to apply.” Id. (simplified).
Assuming a constitutional violation here, Wise and Key
are entitled to qualified immunity on the “clearly
established” prong. Simply, Grenning has cited no authority
that “define[s]” “with a high degree of specificity” his right
to publish—without approval—work product created while
participating in a prison program. See id. Grenning relies
exclusively on Martinez and its progeny. But none of the
cases he cites are relevantly similar to the circumstances
here—seeking to limit a sex offender from publishing
sexually explicit material in a general-audience publication
as part of a voluntary rehabilitative prison program.
Precedent simply “does not place the constitutional question
beyond debate.” Id. And Grenning did not address the
44 GRENNING V. KEY
clearly established prong under Turner—nor could he. After
all, it is not clearly established that enforcing compliance
with a rehabilitative prison program is not “reasonably
related to legitimate penological interests.” Turner, 482 U.S.
at 89. So regardless of whether Martinez or Turner applies,
Grenning’s right was not clearly established at the time of
Wise and Key’s conduct. Indeed, that there is a debate about
whether Martinez or Turner applies shows that the law is not
clearly established.
V.
In short, I would affirm the district court on the grounds
that there was no First Amendment violation. But even if
there were, Wise and Key are entitled to qualified immunity.
For these reasons, I respectfully dissent.