Lamont Shepard v. T. Quillen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAMONT SHEPARD, No. 13-15554

Plaintiff-Appellant,

D.C. No.

v. 1:09-cv-00809-BAM

T. QUILLEN; J. WISE,

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted August 12, 2015

San Francisco, California

Filed October 26, 2016

Before: Alex Kozinski and Richard C. Tallman, Circuit

Judges, and Douglas L. Rayes,* District Judge.

Opinion by Judge Kozinski;

Dissent by Judge Tallman

*

The Honorable Douglas L. Rayes, District Judge for the U.S.

District Court for the District of Arizona, sitting by designation.

2 SHEPARD V. QUILLEN

SUMMARY**

Prisoner Civil Rights

The panel reversed the district court’s summary judgment

in favor of a California corrections lieutenant in a California

state prisoner’s section 1983 action alleging that he was

transferred to administrative segregation in retaliation for

reporting that a corrections officer used excessive force

against him; and, in a memorandum disposition filed

concurrently with the opinion, affirmed a jury verdict on his

claim that the corrections officer used excessive force.

Reversing the grant of summary judgment, the panel

rejected Corrections Lieutenant Wise’s claim that California

prison regulation Cal. Code Regs. tit. 15, § 3335(a), required

him to transfer plaintiff to administrative segregation as soon

as plaintiff alleged that he was assaulted by another

corrections officer. The panel held that plaintiff established

a genuine issue of material fact as to whether Wise retaliated

against him. Plaintiff had also shown that Wise was not

entitled to qualified immunity at this stage.

In a memorandum disposition filed concurrently with its

opinion, the panel affirmed a jury verdict in favor of

corrections officer Quillen on plaintiff’s excessive force

claim.

Dissenting, Judge Tallman stated that Lieutenant Wise’s

decision to transfer plaintiff into administrative segregation

**

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

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

SHEPARD V. QUILLEN 3

fell squarely within the range of conduct that is protected by

qualified immunity.

COUNSEL

Javier Serrano (argued) and George C. Harris, Morrison &

Foerster LLP, San Francisco, California, for Plaintiff-

Appellant.

Misha Igra (argued), Supervising Deputy Attorney General;

Kamala D. Harris, Attorney General of California; Jonathan

L. Wolff, Senior Assistant Attorney General; Thomas S.

Patterson and Vickie P. Whitney, Supervising Deputy

Attorneys General; Office of the California Attorney General,

Sacramento, California; for Defendants-Appellees.

4 SHEPARD V. QUILLEN

OPINION

KOZINSKI, Circuit Judge:

We consider whether a prison official may place an

inmate in administrative segregation for reporting officer

misconduct.

FACTS1

California Corrections Officer Quillen was doing rounds

when recently transferred inmate Lamont Shepard refused to

identify himself. Quillen and another officer removed

Shepard from his cell and escorted him to a holding room.

Shepard then told Lieutenant Wise that he needed medical

treatment because Quillen roughed him up during the escort.

Wise offered to “maybe . . . work something out” and

suggested Shepard recant his statement against Quillen, but

the inmate persisted. Wise replied that Shepard would be

placed in administrative segregation for reporting Quillen.

Shepard decided to go forward with his complaint. That

same day, he was transferred to a double cell in the

1

The facts are based on Shepard’s allegations, which we must take as

true at this stage of the proceedings. See Thomas v. Ponder, 611 F.3d

1144, 1149 (9th Cir. 2010). The district judge did not consider Shepard’s

statement of undisputed facts and opposition to defendants’ motion for

summary judgment because he believed them to be unattested. But at the

end of each of these documents, above Shepard’s signature, there is a

handwritten statement that reads: “I declare under penalty of perjury that

the foregoing is true and correct and is executed on March 4, 2012.”

Accordingly, the district court erred in failing to consider these

documents. See 28 U.S.C. § 1746 (unsworn statements are admissible as

long as attested to under penalty of perjury); Johnson v. Meltzer, 134 F.3d

1393, 1400 (9th Cir. 1998) (“[A] verified motion functions as an

affidavit.”).

SHEPARD V. QUILLEN 5

Administrative Segregation Unit (ASU), where he spent

about three months.

Shepard filed a section 1983 suit alleging that Wise

retaliated against him for reporting Quillen and that Quillen

used excessive force while escorting him to the holding

cell. Adopting the magistrate judge’s findings and

recommendations, the district court granted Wise’s motion

for summary judgment.2

DISCUSSION

The district court determined that Shepard “failed to

establish a triable issue of material fact for his claim that

Defendant Wise retaliated against [him] by placing him in

administrative segregation” and that Wise was therefore

entitled to qualified immunity. See Sorrels v. McKee,

290 F.3d 965, 969 (9th Cir. 2002) (explaining that the rights-

violation prong of the qualified immunity analysis “mirrors

the substantive summary judgment decision on the merits”).

We begin with Shepard’s claim of a constitutional violation.

See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (noting

that “it is often beneficial” to analyze whether the relevant

facts make out a constitutional violation before determining

whether the right at issue is clearly established).

A. Whether a right was violated

We have long recognized that a corrections officer may

not retaliate against a prisoner for exercising his First

2

With the parties’ consent, a magistrate judge presided over the trial

on Shepard’s excessive-force claim. We affirm the jury verdict for

Quillen in a memorandum disposition filed concurrently herewith.

6 SHEPARD V. QUILLEN

Amendment right to report staff misconduct. Brodheim v.

Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). At the same time,

we must defer to reasonable decisions of prison officials. See

Turner v. Safley, 482 U.S. 78, 84–85 (1987); Rizzo v.

Dawson, 778 F.2d 527, 532 (9th Cir. 1985). When a prisoner

claims retaliation, we strike this balance by requiring him to

show that (1) “a state actor took some adverse action . . .

(2) because of (3) [the] prisoner’s protected conduct, . . . that

such action (4) chilled [his] 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).

Wise doesn’t dispute—nor could he—that Shepard has

established the first element. In Watison v. Carter, we found

that being placed in administrative segregation constitutes an

adverse action. 668 F.3d 1108, 1115 (9th Cir. 2012); see also

Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).

Indeed, Wise’s alleged statement that “I’m go [sic] send you

to ad/seg for reporting my officer,” is enough. As we

explained in Brodheim, “the mere threat of harm can be an

adverse action” in the retaliation context. 584 F.3d at 1270

(emphasis removed). Nor is there any doubt that Shepard’s

complaints about Quillen amounted to protected conduct. See

Austin, 367 F.3d at 1170–71 (quoting Hines v. Gomez,

108 F.3d 265, 269 (9th Cir. 1997)). Wise argues, however,

that there are no genuine factual disputes as to the remaining

three elements of Shepard’s claim.

1. To establish causation, Shepard must “put forth

evidence of retaliatory motive, that, taken in the light most

favorable to him, presents a genuine issue of material fact as

to [Wise’s] intent” in sending Shepard to administrative

segregation. Brodheim, 584 F.3d at 1271 (quoting Bruce v.

SHEPARD V. QUILLEN 7

Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003)); see Hartman v.

Moore, 547 U.S. 250, 259 (2006) (explaining that a section

1983 plaintiff “must show a causal connection between a

defendant’s retaliatory animus and subsequent injury in any

sort of retaliation action”). Wise claims a California prison

regulation required him to transfer Shepard to administrative

segregation as soon as Shepard alleged Quillen assaulted him.

That regulation provided:

When an inmate’s presence in an institution’s

general inmate population presents an

immediate threat to the safety of the inmate or

others, endangers institution security or

jeopardizes the integrity of an investigation of

an alleged serious misconduct or criminal

activity, the inmate shall be immediately

removed from general population and be

placed in administrative segregation.

Cal. Code Regs. tit. 15, § 3335(a) (2005).3 Wise argues that

section 3335 is nondiscretionary as applied to prisoners who

allege serious staff misconduct. The reasoning goes like this:

An allegation of serious officer misconduct triggers an

investigation. An inmate’s presence in the general population

will jeopardize that investigation. Therefore, Wise didn’t

place Shepard in administrative segregation because of any

protected conduct. He did it to comply with the regulation.

But section 3335 says nothing about reports of staff

misconduct. The regulation lists three predicates that, if met,

require placing an inmate in administrative segregation: threat

3

The current version of section 3335 is substantially similar. See Cal.

Code Regs. tit. 15, § 3335 (2016).

8 SHEPARD V. QUILLEN

to safety, endangering institutional security and jeopardizing

the integrity of an investigation. Id. An allegation of serious

staff misconduct could trigger one of these predicates, but

nowhere does the regulation direct prison officials to place all

inmates who complain about mistreatment in administrative

segregation. When an inmate complains of staff misconduct,

the official must determine whether leaving the inmate in the

general population will create safety, security or

investigation-related concerns.

Perhaps California prison officials treat section 3335 as

nondiscretionary in circumstances such as these; or, perhaps,

no matter the actual policy, Wise believed the regulation was

nondiscretionary. But the only evidence of either possibility

comes from Wise himself. He claims in an interrogatory

response that “[prison] policy provides that, when an inmate

makes a staff complaint, the inmate is to be placed in

administrative segregation for his own protection pending an

investigation . . . . [A]cting pursuant to this policy, I ordered

that [Shepard] be placed into administrative segregation

pending an investigation of his allegations.” In another

response, Wise adds: “This transfer was not done as a

reprisal against the plaintiff or in retaliation for having made

claims of staff misconduct.” Wise’s version of events might

convince a jury that he bore no retaliatory animus when he

threatened to transfer Shepard to administrative segregation

and then followed through on the threat. But it does not

establish conclusively that the policy Wise references actually

exists.

There is, moreover, evidence in the record casting doubt

on Wise’s explanation. For one, Shepard has shown

“proximity in time between protected speech and the alleged

retaliation.” McCollum v. Cal. Dep’t of Corrs. & Rehab.,

SHEPARD V. QUILLEN 9

647 F.3d 870, 882 (9th Cir. 2011) (quoting Allen v. Iranon,

283 F.3d 1070, 1077 (9th Cir. 2002)). Wise ordered the

transfer on the same day that Shepard complained about

Quillen. Wise also undoubtedly “expressed opposition to the

speech.” Id. (quoting Allen, 283 F.3d at 1077); see also Jones

v. Williams, 791 F.3d 1023, 1036 (9th Cir. 2015). When

Shepard insisted he needed medical treatment, Wise allegedly

offered to “work something out” and nudged Shepard to

recant his allegation of abuse. When Shepard persisted, Wise

said he was going to send Shepard to administrative

segregation “for reporting [his] officer.”

There’s more. As required by regulation, Wise justified

his decision on a “114-D” form. See Cal. Code Regs. tit. 15,

§ 3336(a) (2005).4 The form provides various explanations

as to why Shepard was placed in administrative segregation,

only some of which support Wise’s explanation. At the top

of the form, under the heading “Reason(s) for Placement,”

three boxes are checked: “presents an immediate threat to the

safety of self or others”; “jeopardizes integrity of an

investigation”; and “endangers institution security.” Next,

above Wise’s signature, a typed message reads: “[Y]ou

alleged that Officer T. Quillen physically assaulted you.

Based on this, your presence on this facility jeopardizes the

integrity of an investigation into this matter.” Below Wise’s

signature, there is a check mark in a “yes” box next to the

phrase “ASU placement is for disciplinary reasons.” This

supports Shepard’s argument that he was being placed in

administrative segregation as punishment rather than to

protect an investigation. Further down the form is a section

4

The requirement that the prison justify a prisoner’s placement in

administrative segregation is now codified at Cal. Code Regs. tit. 15,

§ 3335(b) (2016).

10 SHEPARD V. QUILLEN

signed by an “administrative reviewer,” Captain Diaz. The

handwritten words “security threat” appear just above Diaz’s

signature in a box labeled “Reason for Decision.” This too is

inconsistent with Wise’s explanation and thus supports the

inference that reliance on section 3335 was a pretext.

Although a jury could conclude that the form negates

Shepard’s claim of retaliatory animus, there is sufficient

ambiguity for a jury to find otherwise. The form features four

different reasons, articulated by at least two different officers,

for Shepard’s confinement. Only two of those reasons—that

Shepard’s presence in the general population might

jeopardize an investigation and his own safety—are

consistent with Wise’s story on appeal. And in explaining

how the former reason justifies the transfer, Wise explicitly

cites Shepard’s grievance. Cf. Jones, 791 F.3d at 1036 (“The

face of the daily failure form . . . cites Jones’s discrimination

complaints and threats to sue as reasons for its issuance

. . . .”). The form’s inconsistences could help Shepard

convince a jury that Wise’s reason for initiating the transfer

was pretextual and that Wise “abused [section 3335 and the

Form 114-D procedure] as a cover or a ruse to silence and

punish” Shepard. Bruce, 351 F.3d at 1289.

2. Wise also argues that placing an inmate in

administrative segregation following a complaint of abuse by

staff isn’t the kind of adverse action that chills an inmate’s

exercise of his First Amendment rights. In his view, the

policy he claims he was following encourages complaints of

staff misconduct by ensuring that the inmate will be separated

from his alleged abuser while an investigation takes place.

But for an inmate to show a chilling effect, the harm need

only be “more than minimal.” Watison, 668 F.3d at 1114.

SHEPARD V. QUILLEN 11

In fact, the harm suffered by prisoners in administrative

segregation is significantly more than minimal. According to

Shepard, his time in the ASU featured reduced access to

phone calls and recreation. He also says he was confined to

his cell for “all but 2 hours per week.” This is plausible.

Prior to 2013,5 inmates in California ASUs were deprived of

all family visits; their only access to recreation or

entertainment was “[y]ard access limited by local

institution/facility security needs”; and they could use the

phone “on an emergency basis only as determined by

institution/facility staff.” Coleman v. Brown, 28 F. Supp. 3d

1068, 1096 (E.D. Cal. 2014). District Judge Karlton,

deeming ASU conditions to be “harsh, restrictive and non-

therapeutic,” found that keeping mentally ill inmates there for

non-disciplinary reasons violated their Eighth Amendment

rights. Id. at 1099.6

Just last term, Justice Kennedy wrote about the horrors of

solitary confinement, concluding that “[y]ears on end of near-

total isolation exact a terrible price.” See Davis v. Ayala,

135 S. Ct. 2187, 2208–10 (2015) (Kennedy, J., concurring).

He was prompted to do so after learning that the death-row

habeas petitioner before him had been isolated in a one-

person cell for the “great majority of his more than 25 years

5

The events in this case took place in 2008.

6

The state amended its regulations in 2013 to place fewer restrictions

on inmates such as ASU residents who are in “Non-Disciplinary

Segregation.” Coleman, 28 F. Supp. 3d at 1096. But even with those

amendments, inmates “are still subject to several significant restrictions

. . . including no contact visits, significant limits on access to both exercise

yards and dayroom, eating all meals in their cells, and being placed in

handcuffs and restraints when being moved outside their cells.” Id. at

1097.

12 SHEPARD V. QUILLEN

in custody.” Id. at 2208. Shepard’s situation was not

identical: He spent his time in a double cell and was released

within three months. But at the time Wise threatened to

transfer Shepard, there was no indication that he’d have a

cellmate, nor did Wise give Shepard a timeline for his

eventual transfer back to the general population. It was only

after recording a complaint that Shepard was told he would be

“placed in the ASU pending the conclusion of an

investigation” into Quillen.

Shepard thus faced the possibility of near-total isolation

for all but a few hours a week, with little hope for visits,

phone calls and recreational opportunities, all for

complaining that he was assaulted by a corrections officer.

A jury could certainly find that the threat of administrative

segregation would chill a “person of ordinary firmness” from

complaining about officer misconduct. Rhodes, 408 F.3d at

569.

3. To argue that Shepard’s transfer reasonably advanced

legitimate correctional goals, Wise merely borrows generic

justifications from section 3335, arguing that Shepard was

placed in administrative segregation to “protect[] the integrity

of the investigation [into Quillen] and to keep Shepard safe.”

There’s no doubt that corrections officers should strive for

unharmed prisoners and untainted investigations. See Hewitt

v. Helms, 459 U.S. 460, 473 (1983), abrogated on other

grounds by Sandin v. Conner, 515 U.S. 472 (1995). The

question is whether transferring Shepard in this circumstance

reasonably advanced such goals.

In Bruce, we explained that “prison officials may not

defeat a retaliation claim on summary judgment simply by

articulating a general justification for a neutral process, when

SHEPARD V. QUILLEN 13

there is a genuine issue of material fact as to whether the

action was taken in retaliation for the exercise of a

constitutional right.” 351 F.3d at 1289. Wise has pointed

only to section 3335, thus offering merely a generic

justification. He hasn’t presented evidence that there were

any witnesses whom Shepard could have improperly

influenced had he been returned to the general population,

though the dissent relies on that justification, see dissent at

21, 23. Nor has Wise offered a reason as to why Shepard

could not have been transferred to a different cell block where

he would have been kept away from Quillen and any

witnesses. All Wise tells us is that Shepard was on

“orientation status” and therefore belonged in the orientation

pod. See Brodheim, 584 F.3d at 1272 (instructing courts to

consider whether there are “ready alternatives available to the

prison for achieving the governmental objectives” (internal

quotation marks omitted)). And the internally inconsistent

114-D suggests that transferring Shepard was retaliatory

rather than reasonably designed to protect Shepard or the

investigation.7 See Rizzo, 778 F.2d at 532.

Finally, Wise points out that a prison committee later

reviewed the transfer and ordered that Shepard remain in

administrative segregation until the investigation into Quillen

7

The dissent claims that we “ignore[] the legitimate institutional

concern that we don’t want inmates employing bogus staff complaints as

a way to manipulate staff or to effectuate a transfer to a more desirable

housing unit.” Dissent at 22; see also dissent at 23–24. Wise never raised

this justification for Shepard’s transfer to administrative segregation as

opposed to some other form of separation from Quillen during the

investigation. And even if we accept the concern as relevant here, Wise’s

actions could still be improperly motivated by retaliation rather than the

legitimate penological purpose. Shepard has raised a triable issue of fact

on this point.

14 SHEPARD V. QUILLEN

concluded. The dissent argues that if “the evidence suggested

otherwise, the committee would have reversed [the] decision”

to transfer Shepard to administrative segregation. Dissent at

23. But the review committee was considering whether the

reason for the transfer was sufficient, not whether it was

motivated by a desire to retaliate. As Bruce recognized, a

prison official who uses a valid procedure as subterfuge to

obscure retaliation “cannot assert that [his action] served a

valid penological purpose, even though [the prisoner] may

have arguably ended up where he belonged.” 351 F.3d at

1289 (emphasis removed).

Shepard does not challenge the constitutionality of section

3335, which, as he recognizes, “ha[s] nothing to do with

placing an inmate in ad seg for making allegations.” On this

record, we cannot conclude whether officers automatically

apply the regulation to all inmates who allege serious staff

misconduct. But we seriously doubt that such a policy, if it

in fact exists, would withstand constitutional scrutiny. Cf.

Fair Housing Council of San Fernando Valley v.

Roommate.com, LLC, 666 F.3d 1216, 1222 (9th Cir. 2012)

(explaining that when a statute “can reasonably be read” in

two ways, “we can and must choose the construction that

avoids raising constitutional concerns”). Inmates must be

able to complain about staff; doing so provides a crucial

check against those who are in a position to abuse them.

Forcing inmates to choose between exercising that

constitutional right and going into administrative segregation

for an indefinite period of time impermissibly burdens that

right.

SHEPARD V. QUILLEN 15

B. Whether Shepard’s right was clearly established

Wise may nevertheless be entitled to qualified immunity

if the right at issue was not “clearly established at the time of

the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct.

2074, 2080 (2011) (internal quotation marks omitted). The

district court didn’t reach this question, but Wise urges us to

consider it as an alternative ground for affirming. See

Campbell v. Wash. Dep’t of Soc. & Health Servs., 671 F.3d

837, 842 n.4 (9th Cir. 2011) (“We can affirm on any ground

supported by the record.”). Because the parties have briefed

the issue, we consider it here.8

A prisoner’s general right against retaliatory punishment

was clearly established well before Wise transferred Shepard

to administrative segregation in 2008. E.g., Rhodes, 408 F.3d

at 569. Nor was there any question that Shepard was engaged

in protected conduct and that he was subject to the type of

adverse action that would chill speech. See Austin, 367 F.3d

at 1170–71 (allowing a retaliation claim to go forward when

the harm alleged was placement in administrative

segregation). But to overcome qualified immunity, Shepard

must show that, as to the precise conduct at issue, “existing

precedent . . . placed the . . . constitutional question beyond

debate.” al-Kidd, 131 S. Ct. at 2083. Because the analysis of

a retaliation claim is largely subjective, it’s difficult to

determine at the summary judgment stage whether a

8

The district court’s only basis for finding qualified immunity was

that “Wise did not violate [Shepard’s] constitutional rights.” We thus do

not fault Shepard for failing to address the “clearly established” prong of

the qualified immunity analysis in his opening brief. It is Wise who urges

us to affirm on a ground not addressed below; thus, Shepard’s “failure to

raise the issue . . . did not prejudice [Wise’s] defense.” Alcaraz v. I.N.S.,

384 F.3d 1150, 1161 (9th Cir. 2004).

16 SHEPARD V. QUILLEN

reasonable officer in Wise’s position would have known he

was violating the law. As we have explained, a jury could

determine that Wise was motivated by retaliatory animus.

But a jury could also conclude that Wise was relying on what

he reasonably thought was a prison policy. In the latter

circumstance he wouldn’t have violated any right, let alone a

clearly established one. But in the former, Wise would have

been “knowingly violat[ing] the law.” See al-Kidd, 131 S. Ct.

at 2085.

Nor, assuming Shepard’s version of events is true, can

Wise claim that he could have reasonably believed his

conduct was lawful because he was advancing a legitimate

penological goal by complying with section 3335. See

Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995);

see also DiRuzza v. City of Tehana, 206 F.3d 1304, 1314 (9th

Cir. 2000) (“For purposes of summary judgment on the

question of qualified immunity . . . we must presume the facts

to be those most favorable to the non-moving party.”). As we

have explained, there’s virtually no evidence that Shepard

needed to be transferred out of the general population for his

own safety or to preserve the integrity of an investigation.

See supra at 13.

Wise argues that because section 3335 mandates placing

a prisoner in administrative segregation following a

complaint, he could not have been on notice that his conduct

was unlawful; the dissent echoes Wise’s reading of the

regulation, dissent at 25. But the regulation does no such

thing, see supra at 7–8, let alone authorize prison officials to

retaliate against prisoners for complaining about officers. No

reasonable prison official could read the regulation in that

way, and Wise has offered no evidence that any other official

did so, see supra at 8. Considering the substantial chilling

SHEPARD V. QUILLEN 17

effect that such a reading would have on the long established

right of prisoners to seek redress of grievances, Cruz v. Beto,

405 U.S. 319, 321 (1972); O’Keefe v. Van Boening, 82 F.3d

322, 325 (9th Cir. 1996), this interpretation doesn’t even

“pass[] the laugh test”; its illegality would be “so obvious that

any prison official involved in enforcing it should have

known he was breaking the law.” Sorrels, 290 F.3d at 971.

In 2003, five years before the events at issue, we followed

“other circuits [in] holding that prison officials may not

defeat a retaliation claim . . . simply by articulating a general

justification for a neutral process, when there is a genuine

issue of material fact as to whether the action was taken in

retaliation for the exercise of a constitutional right.” Bruce,

351 F.3d at 1289. Those circuits have stated their rule even

more bluntly, holding that the “policy [against retaliation]

applies even where the action taken . . . would otherwise be

permissible.” Smith v. Maschner, 899 F.2d 940, 948 (10th

Cir. 1990); accord Woods v. Smith, 60 F.3d 1161, 1165 (5th

Cir. 1995). Bruce clearly established that prison officials

may not abuse a valid procedure “as a cover or a ruse to

silence and punish” an inmate. 351 F.3d at 1289.

Accordingly, the contours of Shepard’s right against

retaliation were “sufficiently clear that a reasonable official”

in Wise’s position would have understood “that what he

[was] doing violate[d] that right.” Anderson v. Creighton,

483 U.S. 635, 640 (1987). Wise may have done just what

Bruce prohibits. Resolution of the disputed factual issues is

thus “critical to a proper determination of [Wise’s]

entitlement to qualified immunity.” Glenn v. Wash. Cty.,

673 F.3d 864, 870 & n.7 (9th Cir. 2011); see also Sloman v.

Tadlock, 21 F.3d 1462, 1468 (9th Cir. 1994) (noting a jury

might be “best suited to determine the reasonableness of an

18 SHEPARD V. QUILLEN

officer’s conduct in light of the factual context in which it

takes place”).

* * *

Shepard has established a genuine issue of material fact

as to whether Wise retaliated against him. He has also shown

that Wise isn’t entitled to qualified immunity at this stage.

Accordingly, we reverse the district court’s grant of summary

judgment in Wise’s favor.

AFFIRMED in part, REVERSED in part and

REMANDED.

Costs to Shepard against Wise and to Quillen against

Shepard.

TALLMAN, Circuit Judge, dissenting:

Running a prison is an “extraordinarily difficult

undertaking.” Wolff v. McDonnell, 418 U.S. 539, 566 (1974).

Prison administrators, tasked with managing a “volatile

environment,” need flexibility to make on-the-ground

judgment calls relating to inmate safety and maintaining

order in the institution. Sandin v. Conner, 515 U.S. 472, 482

(1995). That includes having in place policies and procedures

to address complaints lodged against staff by inmates so that

inmates cannot manipulate the system for improper reasons.

It comes as no surprise that the Supreme Court has time and

again reminded us that courts are “ill equipped” to address the

“increasingly urgent problems” facing prisons. Turner v.

Safley, 482 U.S. 78, 84 (1984) (citation omitted). This case

SHEPARD V. QUILLEN 19

illustrates why we need to be careful before interfering in the

way a prison is run.

Today, the majority denies Lieutenant Wise qualified

immunity despite his reliance on a legitimate California

prison regulation authorizing the transfer of an inmate into

administrative segregation after receiving a complaint against

a correctional officer that alleged serious misconduct. In my

view, the majority decision improperly entangles itself in the

“day-to-day management of [Corcoran State] prison.”

Sandin, 515 U.S. at 482. Because Lieutenant Wise is entitled

to qualified immunity for reasonably following prison policy,

I respectfully dissent.

I

The First Amendment prohibits prison officials from

retaliating against prisoners for exercising their First

Amendment rights. See Bruce v. Ylst, 351 F.3d 1283, 1288

(9th Cir. 2003). A prisoner retaliation claim consists of five

elements: “(1) [a]n 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. 2004). To survive a motion for summary

judgment, a plaintiff must demonstrate a triable issue of

material fact on each element. Brodheim v. Cry, 584 F.3d

1262, 1269 n.3 (9th Cir. 2009). In evaluating whether the

plaintiff has met this burden, the court “should ‘afford

appropriate deference and flexibility’ to prison officials.”

Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (quoting

Sandin, 515 U.S. at 482).

20 SHEPARD V. QUILLEN

The majority concludes that inmate Shepard demonstrated

a triable issue of material fact that his constitutional rights

were violated when Lieutenant Wise (the watch commander)

transferred him to administrative segregation following the

lodging of his complaint against another officer. Maj. Op. at

5–14. I disagree. The record is not sufficient to establish that

Shepard’s transfer to administrative segregation did not

“advance legitimate penological goals, such as preserving

institutional order and discipline.” Bruce, 351 F.3d at 1288

(quoting Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.

1994)).

Lieutenant Wise maintains that he transferred Shepard to

administrative segregation by following a California

Department of Corrections and Rehabilitation (CDCR)

regulation designed to protect prisoners and ensure the

integrity of internal investigations. This regulation provides:

When an inmate’s presence in an institution’s

general inmate population presents an

immediate threat to the safety of the inmate or

others, endangers institution security or

jeopardizes the integrity of an investigation of

an alleged serious misconduct or criminal

activity, the inmate shall be immediately

removed from general population and be

placed in administrative segregation.

Cal. Code Regs. Tit. 15, § 3335(a) (2005).

Shepard’s transfer into administrative segregation

occurred immediately after he reported that Officer Quillen

(assigned to his housing unit) had used excessive force after

Shepard refused to identify himself during a cell count,

SHEPARD V. QUILLEN 21

necessitating removing him to a nearby holding cell for the

violation. Lieutenant Wise’s decision to separate Shepard

from Officer Quillen was in conformance with the prison

regulation and made in furtherance of a legitimate

correctional goal.

If Shepard had not been transferred into administrative

segregation, he would have been left in the same housing unit

with Officer Quillen, the officer against whom Shepard had

complained. And if Shepard’s allegations were true, and

Officer Quillen employed excessive force in moving him, it

was only reasonable to separate Shepard from Officer Quillen

to ensure Shepard’s continued safety. Shepard’s transfer also

protected the integrity of the prison’s internal investigation

into Officer Quillen’s misconduct by taking away any

opportunity for Officer Quillen to pressure Shepard to recant

his allegations or to prevent Shepard from improperly

importuning other inmate witnesses prior to obtaining witness

statements.

In short, Lieutenant Wise received a complaint that one of

his correctional officers had engaged in abusive misconduct.

Knowing this, Lieutenant Wise made a judgment call:

Shepard’s continued presence in his housing unit “present[ed]

an immediate threat to [Shepard’s] safety” and “jeopardize[d]

the integrity of an investigation” into Officer Quillen’s

alleged misconduct. Cal. Code Regs. Tit. 15, § 3335(a)

(2005). Lieutenant Wise properly followed prison policy and

transferred Shepard into administrative segregation in

furtherance of those legitimate penological goals. A

reasonable correctional supervisor would have done the same.

The majority suggests that Lieutenant Wise relied on the

prison regulation as a pretext to retaliate against Shepard for

22 SHEPARD V. QUILLEN

reporting Officer Quillen. Maj. Op. at 8–10; see Bruce,

351 F.3d at 1289 (“[I]f . . . the defendants abused [prison]

procedure as a cover or ruse to silence and punish [the

plaintiff] because he filed grievances, they cannot assert that

[their actions] served a valid penological purpose[.]”). I

disagree. The majority ignores the legitimate institutional

concern that we don’t want inmates employing bogus staff

complaints as a way to manipulate staff or to effectuate a

transfer to a more desirable housing unit.

Lieutenant Wise initiated the process to transfer Shepard

to administrative segregation on the same day that Shepard

complained about Officer Quillen, July 15, 2008. The

majority suggests this close temporal proximity between

Shepard’s speech and Lieutenant Wise’s adverse action is

evidence of retaliatory motive. Maj. Op. at 8–9; see

McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d 870,

882 (9th Cir. 2011). Not here. If the understandable

penological goals are to be effectuated, the transfer must

occur immediately.

That is why the timing evidence does not suggest an

improper motive, but rather supports Lieutenant Wise’s

claims that Shepard’s transfer served a legitimate correctional

goal. Logically, § 3335 protects a complaining inmate from

staff reprisals only if the inmate is transferred immediately

after making a complaint against a guard in his housing unit.

And here, prison officials kept Shepard in administrative

segregation throughout the entire investigation of Officer

Quillen, transferring him back to the general population

shortly after the investigation closed. See Cal. Code Regs.

Tit. 15, § 3339(a) (“Release from administrative segregation

shall occur at the earliest possible time in keeping with the

SHEPARD V. QUILLEN 23

. . . reasons for the inmate’s placement in administrative

segregation.”).

Shepard’s placement notice, which both Lieutenant Wise

and Shepard signed on July 17, 2008, states: “[Y]ou . . . are

being removed from the Facility III-A General Population

and being placed in the Administrative Segregation Unit

(ASU) pending an investigation into your allegations of staff

misconduct.” Boxes checked on the form for “Reason(s) for

Placement” indicate that Shepard was transferred because he

“presents an immediate threat to the safety of self or others,”

“jeopardizes [the] integrity of an investigation of alleged

serious misconduct,” and “endangers institution security.”

Lieutenant Wise’s transfer decision was reviewed and

endorsed by a prison committee on July 23, 2008. The

committee noted, “‘S’ was placed in ASU [from] Facility 3A,

pending investigation into allegation of alleged staff

misconduct by Officer T. Quillen as ‘S’ alleged that ‘S’ was

physically assaulted by him.” Even construing the evidence

in the light most favorable to Shepard, following the prison

policy furthered the legitimate correctional goal of shielding

Shepard from any reprisal and making sure the investigation

was not improperly colored by Shepard’s continued presence

in the unit housing the witnesses. Had the evidence

suggested otherwise, the committee would have reversed that

decision.

Finally, the majority faults Lieutenant Wise for not

“offer[ing] a reason as to why Shepard could not have been

transferred to a different cell block where he would have been

kept away from Quillen and any witnesses.” Maj. Op. at 13.

This is not the standard. Any suggestion that a prison official

must transfer a complaining inmate to a different pod every

24 SHEPARD V. QUILLEN

time an inmate lodges an allegation of staff misconduct

shows little regard for the “inordinately difficult” task of

running a prison—one that is “peculiarly within the province

of the legislative and executive branches of government.”

Turner, 482 U.S. at 85. Such a standard would certainly

incentivize a flurry of frivolous complaints by prison inmates

hoping to be transferred into a more favorable pod. One can

easily imagine why, for example, members of the same prison

gang would like to be housed together. Or an inmate might

wish to be moved so he can be near another inmate or guard

against whom he holds an outstanding grudge to launch an

attack. Such considerations are exactly why the Supreme

Court has instructed us to practice “judicial restraint” before

entangling ourselves in the inner-workings of prisons. Id.

II

Even assuming Shepard has alleged facts that show a

constitutional violation, Lieutenant Wise is still entitled to

qualified immunity if the right at issue was not “clearly

established” at the time of the challenged conduct. Pearson

v. Callahan, 555 U.S. 223, 231 (2009). A clearly established

right is one that is “sufficiently clear that every reasonable

official would have understood that what he is doing violates

that right.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)

(emphasis added) (internal quotation marks and alteration

omitted). Shepard can’t meet that high burden here.

The question we must answer is: would a reasonable

prison official in Lieutenant Wise’s position have known that

placing Shepard in administrative segregation after a

complaint of serious staff assault, as directed by a clearly

legitimate prison regulation, was a violation of Shepard’s

SHEPARD V. QUILLEN 25

constitutional rights? I am at a loss as to how the answer to

this question can be anything but a resounding “no.”

The relevant prison regulation, § 3335, required

Lieutenant Wise to transfer Shepard into administrative

segregation following his complaint of serious staff

misconduct if Lieutenant Wise determined that Shepard’s

personal safety was at risk or that Shepard’s continued

presence in the housing unit threatened the integrity of the

resulting internal investigation. The record amply

demonstrates why it was reasonable for Lieutenant Wise to

transfer Shepard into administrative segregation for these

legitimate reasons.

Under these circumstances, a reasonable officer in

Lieutenant Wise’s position could not have known that

complying with a mandatory prison regulation would be a

violation of Shepard’s constitutional rights. In concluding

otherwise and second-guessing his decision, the majority

subjects Lieutenant Wise to unnecessary “harassment,

distraction, and liability.” Pearson, 555 U.S. at 231. The

Supreme Court has told us that qualified immunity protects

“all but the plainly incompetent or those who knowingly

violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Lieutenant Wise’s decision to transfer Shepard into

administrative segregation falls squarely within the range of

conduct that is protected by qualified immunity. The district

court properly granted him the law’s protection. My

colleagues err in refusing to apply it.

I respectfully dissent.