The opinion
FILED
NOT FOR PUBLICATION NOV 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK STEPHEN WICKLUND, No. 12-35294
Plaintiff - Appellee, D.C. No. 1:09-cv-00674-EJL-
CWD
v.
IDAHO DEPARTMENT OF MEMORANDUM*
CORRECTIONS; IDAHO COMMISSION
OF PARDON AND PAROLE; STATE OF
IDAHO; KEN BENNETT; MOIRA
LYNCH; WILLIAM C. YOUNG;
BRANDON SUTHERLAND,
Defendants - Appellants,
and
SANE SOLUTIONS; TERRY REILLY
HEALTH SERVICES; MELISSA MESO;
MARK MCCULLOUGH; HEIDI HART,
Defendants.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted November 3, 2015**
Portland, Oregon
Before: FISHER, BERZON and WATFORD, Circuit Judges.
Defendant Ken Bennett, the Director of Probation and Parole for the Fourth
Judicial District of Idaho, appeals the district court’s denial of his motion for
summary judgment based on qualified immunity. We have jurisdiction under 28
U.S.C. § 1291, see Mattos v. Agarano, 661 F.3d 433, 439 (9th Cir. 2011) (en
banc), we review de novo, see id., and we affirm.
We follow the two-pronged approach to qualified immunity claims
established in Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by
Pearson v. Callahan, 555 U.S. 223, 236 (2009). We first consider whether the
facts “[t]aken in the light most favorable to the party asserting the injury . . . show
the [defendant’s] conduct violated a constitutional right.” Id. If so, we then
consider whether the right was “clearly established” at the time of the alleged
violation. Id. Because, viewing the evidence in the light most favorable to
Wicklund, both prongs are satisfied, the district court properly denied summary
judgment.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
1. Probationer Mark Wicklund says Bennett violated his constitutional
rights by threatening to jail him if he pursued conduct protected by the First
Amendment. A viable claim of First Amendment retaliation in this context entails
five elements: (1) An assertion that a state actor took adverse action against the
plaintiff (2) because of (3) the plaintiff’s protected conduct, and that such action
(4) chilled the plaintiff’s exercise of his First Amendment rights, and (5) the action
did not reasonably advance a legitimate correctional goal. See Rhodes v. Robinson,
408 F.3d 559, 567-68 (9th Cir. 2005). Wicklund has presented evidence that, if
taken as true, would satisfy all five elements. “[T]he 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)
(emphasis omitted). The alleged threat was made because of Wicklund’s First
Amendment-protected conduct in pursuing litigation against the county
prosecutor’s office and a polygrapher outside his court-ordered therapy sessions.1
Threatening to jail Wicklund “would chill or silence a person of ordinary firmness
from future First Amendment activities.” Id. at 1271 (emphasis omitted) (quoting
Rhodes, 408 F.3d at 568). Retaliation is “not a reasonable exercise of prison
1
Restraints on Wicklund’s disruptive behavior during his court-ordered
therapy sessions did not violate his First Amendment rights.
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authority and . . . [does] not serve any legitimate correctional goal.” Rizzo v.
Dawson, 778 F.2d 527, 532 (9th Cir. 1985). Therefore, Wicklund has presented
evidence of a constitutional violation.
2. It was clearly established before 2009 that government officials could not
impose punishment for First Amendment-protected conduct. See Pratt v. Rowland,
65 F.3d 802, 806 (9th Cir. 1995) (“[T]he prohibition against retaliatory punishment
is ‘clearly established law’ in the Ninth Circuit, for qualified immunity
purposes.”). Wicklund’s First Amendment right to publicly air his grievances and
pursue litigation against the county prosecutor’s office and the polygrapher has
been clearly established for decades. See, e.g., Bill Johnson’s Restaurants, Inc. v.
NLRB, 461 U.S. 731, 741 (1983); Schroeder v. McDonald, 55 F.3d 454, 461 (9th
Cir. 1995); Rhodes, 408 F.3d at 567.
AFFIRMED.
4