explaining that “[t]he most fundamental of the constitutional protections that prisoners retain are the First Amendment rights to file prison grievances and to pursue civil rights litigation in the courts,” and that the “form of the complaints—even if verbal [or] written—is of no constitutional significance, and . . . threats to sue fall within the purview of the constitutionally protected right to file grievances”
How later courts described this case
- explaining that “[t]he most fundamental of the constitutional protections that prisoners retain are the First Amendment rights to file prison grievances and to pursue civil rights litigation in the courts,” and that the “form of the complaints—even if verbal [or] written—is of no constitutional significance, and . . . threats to sue fall within the purview of the constitutionally protected right to file grievances”
- explaining that “the form of [prisoner] complaints – even if verbal, let alone, as here, written – is of no constitutional significance, and that threats to sue fall within the purview of the constitutionally protected right to file grievances”
- Holding that both “verbal … [and] written … threats to sue fall within 16 the purview of the constitutionally protected right to file grievances.”
- holding that “where . . . there is no binding Ninth Circuit precedent” on an issue we may “look to whatever decisional law is available, including relevant decisions of other circuits.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN THOMAS ENTLER, No. 14-35053
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-05141-
JPH
CHRISTINE GREGOIRE; BERNIE
WARNER, AKA Berny Waner;
STEVEN SINCLAIR; RON KNIGHT; OPINION
LYNN IRISH CLARK; PIERCE, MR.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted April 7, 2017
Seattle, Washington
Filed October 6, 2017
Before: William A. Fletcher and Ronald M. Gould, Circuit
Judges, and Frederic Block,* District Judge.
Opinion by Judge Frederic Block
*
The Honorable Frederic Block, United States Senior District Judge
for the Eastern District of New York, sitting by designation.
2 ENTLER V. GREGOIRE
SUMMARY**
Prisoner Civil Rights
The panel reversed in part and affirmed in part the district
court’s dismissal, on the pleadings, of a complaint brought
pursuant to 42 U.S.C. § 1983 by a prisoner who alleged that
his First Amendment rights were violated when he was
disciplined for threatening to initiate civil litigation and file
a criminal complaint against prison officials.
Plaintiff was disciplined for his threats under a
Washington Department of Corrections regulation that bars
prisoners from intimidating or coercing prison staff. With
regard to plaintiff’s threats to bring civil litigation, the panel
disagreed with the district court’s conclusions that plaintiff
has not alleged an actionable First Amendment retaliation
claim and that, alternatively, the prison officials were entitled
to qualified immunity. The panel held that threats to sue fall
within the purview of the constitutionally protected right to
file grievances and that in 2012 it was clearly established that
plaintiff had a right to file his grievances and pursue civil
litigation. The panel held that taking the complaint as true in
the face of a Rule 12(c) motion to dismiss on the pleadings,
it could not conclude that a reasonable official would not
have understood that disciplining plaintiff for threatening to
file a civil suit was constitutionally impermissible.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ENTLER V. GREGOIRE 3
With regard to the discipline imposed for plaintiff’s threat
to file a criminal complaint, the panel held that both the filing
of a criminal complaint by a prisoner, as well as the threat to
do so, are protected by the First Amendment, provided they
are not baseless. The panel nevertheless held that defendants
were entitled to qualified immunity because it was not clearly
established at the time that the threat to file a criminal
complaint was constitutionally protected conduct.
COUNSEL
Jared R. Wigginton (argued), Stoel Rives LLP, Seattle,
Washington, for Plaintiff-Appellant.
Timothy J. Feulner (argued), Assistant United States
Attorney; Robert W. Ferguson, Attorney General; United
States Attorney’s Office, Olympia, Washington; for
Defendants-Appellees.
4 ENTLER V. GREGOIRE
OPINION
BLOCK, District Judge:
John Thomas Entler (“Entler” or “Appellant”) is a
prisoner at the Washington State Penitentiary (“WSP”).
During the summer of 2012, he took issue with certain
incidents at the WSP and submitted written complaints to the
prison officials involved.1 In all but one, Entler threatened to
initiate civil litigation if his concerns were not addressed; in
the other, he threatened to file a criminal complaint against a
number of state officials and have them arrested.2 Entler was
disciplined for these threats under a Washington Department
of Corrections (“DOC”) regulation that bars prisoners from
intimidating or coercing prison staff.
With regard to the threats to bring civil litigation, we
disagree with the district court’s conclusions that Entler has
not alleged an actionable First Amendment retaliation claim
and that, alternatively, the prison officials were entitled to
qualified immunity. With regard to the threat to file a
criminal complaint, we disagree with the district court’s
implicit conclusion that Entler has not alleged an actionable
1
The caption of the pro se Complaint lists the officials in their
individual capacities, but the body of the Complaint references them in
their official capacities. Nonetheless, as here, “where state officials are
named in a complaint which seeks damages under 42 U.S.C. § 1983, it is
presumed that the officials are being sued in their individual capacities.”
Shoshone-Bannock Tribes v. Fish & Game Comm’n, 42 F.3d 1278, 1284
(9th Cir. 1994).
2
Entler thereafter filed the complaint against the officials.
ENTLER V. GREGOIRE 5
First Amendment retaliation claim3; however, we hold that
the Defendants were entitled to qualified immunity.
Accordingly, we reverse the judgment dismissing the
Complaint on the pleadings in part, affirm in part, and remand
for further proceedings in accordance with this decision.
I
A. The Grievance Process
The DOC has established an Offender Grievance Program
to allow prisoner grievances to be “heard and dealt with in a
formal manner.” The Manual provides, however, that
prisoners should “try to informally resolve [their] issue before
filing a formal grievance” by submitting a “kite”—a letter on
a pre-printed DOC form4—to the officer implicated in the
issue; consequently, prisoners are “expected . . . to seek
informal resolution to [their] concerns through regular
administrative channels prior to utilizing the grievance
procedure.” The Manual is silent, however, as to what action,
if any, is required of the officer receiving the kite. It simply
provides that if the prisoner cannot resolve the issue
informally, he or she may file a formal complaint “[w]ithin
20 working days of the date of the incident.”
3
The district court did not separately address Entler’s civil and
criminal threats, as we do here, but its decision that none of his threats
were protected conduct necessarily implies that neither the civil nor
criminal threats were actionable.
4
The DOC’s Offender Kite—DOC form 21-473—asks the prisoner’s
name, DOC number, and location within the prison. It also provides a
space for the prisoner to detail the reason why he or she is submitting the
kite and a space for the prisoner to write the name of the official with
whom they wish to speak.
6 ENTLER V. GREGOIRE
A prisoner files a formal complaint by submitting a
“statement of concern”5 on the DOC’s official Complaint
Form—DOC form 5-165—to the prison Grievance
Coordinator, who must then respond “[w]ithin 5 working
days of the date of receipt.” From there, “[t]he grievance
coordinator or assigned investigator will: review assigned
investigator’s instructions; review local policies and
procedures; review DOC policies, [Washington
Administrative Code], [Revised Code of Washington] as
necessary; review inventories, daily logs, medical records,
etc[.], as necessary; interview resource staff (doctors,
supervisors, chaplain, etc.) for additional perspective, as
necessary; interview grievant and/or witnesses as appropriate.
Written statements may be accepted.” The next step is
“[r]eview of the complaint by the Grievance Coordinator,”
followed by an “[a]ttempt to resolve grievance by the
Gri evan ce Coordinator,” t hen “[ r] evi ew by
Superintendent/facility supervisor,” and, finally, a “[r]eview
by Deputy Secretary/designee.”
B. Prisoner Discipline
Prison administration is governed by the Washington
Administrative Code (“WAC”). Rule 663 of Section 137-25-
030 (“Rule 663”) lists as a “serious violation” the use by a
prisoner of “physical force, intimidation, or coercion against
any person.” By contrast, Rule 202 of WAC 137-28-220
(“Rule 202”) lists as a “general violation . . . [h]arassing,
using abusive language, or engaging in other offensive
5
A “statement of concern” in a formal complaint should identify “the
specific written policy or procedure being grieved” and include a
description of “what happened or was said.”
ENTLER V. GREGOIRE 7
behavior directed to or in the presence of another person(s) or
group(s).”
WAC 137-28 is a comprehensive chapter dealing with
prison discipline. It defines an infraction as “[a] term
designating the procedures and documents related to offender
misconduct and the facility disciplinary process as a result of
a rule violation.” WAC 137-28-160(6). Each category of
infraction—whether general or serious—calls for a separate
process and set of sanctions. See WAC 137-28-230, 137-28-
270. A “general infraction” does not require a hearing and
subjects a prisoner to mild sanctions imposed by the
prisoner’s supervisor, including a “[r]eprimand or warning[,]”
an “[i]ssuance of a written order to cease the problematic
behavior[,]” and “confinement to cell/room . . . for a period
not to exceed ten consecutive days.” WAC 137-28-240.
A “serious infraction” requires a staff member who
witnesses the serious violation to “prepare and submit an
infraction report” to an infraction review officer, who
forwards the report to a hearing clerk. WAC 137-28-270.
The hearing clerk then schedules a disciplinary hearing before
a hearing officer, which the prisoner can choose to attend to
listen, testify, and/or call witnesses. See WAC 137-28-285.
If the hearing officer finds the prisoner guilty of a serious
violation, the officer may impose more severe sanctions than
those appropriate for a general infraction, including cell
confinement, “confinement on isolation status,” or
“[s]uspension or termination of visitation.” WAC 127-28-
350.
8 ENTLER V. GREGOIRE
C. Entler’s Kites and Discipline
The following facts are drawn from Appellant’s
voluminous pro se Complaint6 relying on 19 attachments,
most of which document all of Entler’s kites and disciplines.
Entler sought redress for the following issues, which
arose in June and July of 2012. Rather than immediately
filing formal complaints through the Offender Grievance
Program, Entler filed several informal complaints—as
“expected” by the Manual—with the alleged offending
officials.
1. Wrongful charge to prison account, failure to provide
copies of legal documents, and denial of art curio
permit
On June 12, 2012, Entler submitted a kite to the WSP
Accounting Department contesting a $200 charge to his
prison account. In the kite, Entler stated: “The [charge] you
added to my account is not from the Superior Court and does
not relate to a felony conviction. Please remove it.” The
WSP Accounting Department responded with a copy of a
court order awarding the DOC $200 against Appellant.
Entler filed a second kite on June 18, 2012, challenging the
WSP Accounting Department’s response. In that kite he
stated: “Remove the [charge] or I will sue you and make you
remove it.” Appellant raised the same issue in a letter to the
DOC Inmate Accounts Unit on June 20, 2012, stating:
“Please remove these illegal [charges] from my account or I
will be left with no other alternative but to seek legal redress
6
Although Entler filed his Complaint pro se, subsequent to its
dismissal he obtained counsel for his appeal.
ENTLER V. GREGOIRE 9
to make you remove them.” After receiving no response for
a month, he wrote a second letter to the Inmate Accounts Unit
on July 30, 2012, in which he stated, “If you fail to respond
to this letter within 20 days, or by August 20, 2012, I will
assume that you are not going to respond, and I’ll be left with
no other alternative by [sic] to seek legal redress to make you
remove these illegal [charges] you have added to my Inmate
Account.”
On June 25, 2012, Appellant submitted kites to the WSP
superintendent and Bar Unit Manager Lynn Clark (“BUM
Clark”) requesting that they fire Baker Unit Counselor Joanna
Irwin (“BUC Irwin”) for failing to provide him copies of
legal documents. He stated: “If you do not fire her for
refusing to provide me legal copies, which she has done
again, I’ll file criminal charges with the Sheriff’s office and
have you arrested. If I see or hear of here [sic] being at this
institution I’ll file criminal charges against you and have you
arrested.” On July 5, 2012, he submitted a lengthy complaint
to the Sheriff’s Office in Walla Walla County (where the
WSP is located) “seeking to initiate criminal charges against
the named State Officials.”7 He requested that the Sheriff’s
Office “arrest these individuals and place them in custody, or
issue a citation to them for the mentioned misdemeanor
crimes.”
On July 18, 2012, Entler received notice that the WSP
denied his application for an art curio permit. He sent a kite
contesting the denial the same day. In this kite, he stated,
“I’ll give you 7 working days from 7-19-12 to answer this
kite before I exercise my legal rights to file a grievance,
7
Entler’s criminal complaint named BUC Irwin, BUM Clark, and
Washington State Penitentiary Superintendent Steven Sinclair.
10 ENTLER V. GREGOIRE
retaliation against me, by you and these staff that are giving
you false negitive imput [sic] as a disguise to deny me a [sic]
art curio permit.” The next day, July 19, BUM Clark visited
Entler’s cell, and Entler told him that Entler planned to file a
formal complaint.
On July 19, 2012, BUM Clark issued Entler a serious
infraction in response to these kites, stating that Entler:
(1) “has threatened to sue the entire WSP Accounting
Department” regarding the $200 charge on his prison
account; (2) “has threatened me that he will file criminal
charges/arrest by sheriff against me if I do not fire [BUC
Irwin],” or “if he sees or hears of [BUC Irwin] being at this
institution”; (3) “has threatened” to “file a grievance” if he
did not receive a response to his complaint regarding the
denial of his application for an art curio permit. BUM Clark
stated further that Entler was “using these kites as
intimidation and coercion” in violation of Rule 663. A
disciplinary hearing was held on August 1, 2012 before
Hearing Officer Jackson, who found that “the way
[Appellant] worded his verbiage in his kite[s] was
intimidating.” The hearing officer sentenced Entler to fifteen
days of lost “big yard” and gym time. Id.8
2. Compelled work assignment contrary to religious
beliefs
The same day that Entler received this serious
infraction—July 19—WSP officers informed him of a
8
Although the Hearing Officer only addressed the kites, in an
affidavit attached to his pro se Complaint Entler stated, “I also argued that
Mr. Clark filed the infraction against me because I filed criminal charges
on him with the Walla Walla Sheriff’s Office.”
ENTLER V. GREGOIRE 11
mandatory job assignment. Entler contested the assignment
in a letter to the WSP’s Religious Programs Manager that
same day. In the letter he stated:
I’m requesting that DOC recognize my
religious beliefs, and stop making me work
contrary to my Seriously Held Religious
Beliefs rooted in my religion, under threat of
punishment for refusing to work. . . . If DOC
refuses to recognize my Seriously Held
Religious Beliefs I will initiate litigation for
violation of my religious rights.
Entler also submitted a kite to BUM Clark on July 22, 2012,
in which he stated:
Since you have made the decision to make me
work contrary to my religious belief under
threat of being infracted for refusing to work
You will be the one I sue for violation of my
Religious Civil Rights. You will answer to
God for your persecution of me. I will say the
Prary [sic] if Psalm 10:1–18 For you, For I am
justified by Romans 12:17–21, and by your
own deeds you will answer to God, for I have
done NO evil to you.
On July 26, 2012, BUM Clark issued Entler a serious
infraction for his July 19 letter to the Religious Programs
Manager threatening to sue to protect his religious freedom.
BUM Clark again claimed that Entler’s threat to sue was
intimidating and coercive in violation of Rule 663. Entler’s
disciplinary hearing occurred before Hearing Officer Pierce
(“Pierce”) on August 15, 2012. Pierce found that Entler “did
12 ENTLER V. GREGOIRE
in fact harass a [Correctional Unit Supervisor] by sending
him a kite stating [Entler’s] plans on contacting a program
manager and on suing people if they did not agree with his
reasons for not being required to work.” However, Pierce
reduced Entler’s violation to a general infraction pursuant to
Rule 202. He was sanctioned to five days of cell
confinement.
On August 2, 2012, BUM Clark issued another serious
infraction for Entler’s July 22 kite threatening again to sue to
protect his religious freedom. BUM Clark again cited Rule
663 as the basis for the violation. The disciplinary hearing
took place before Pierce on August 15. Pierce found that
Entler had harassed officers “with kites and grievances
threatening legal suits” but reduced his Rule 663 violation to
a violation of Rule 202 and WAC 137-28-220 Rule 203 for
“ma[king] false claim that CUS Clark made threat of work or
be infracted.” Pierce warned Entler not to “badger” WSP
employees for thirty days or he would receive a serious
infraction.9
9
On August 2, 2012, Entler filed two formal complaints against BUM
Clark. The first protested BUM Clark’s retaliation against him for his
kites regarding the accounting department problems and “the criminal
charges filed against [BUM Clark] and Counselor Irwin.” The second
protested BUM Clark’s retaliation against Entler for his kites regarding his
religious work conflicts and, once again, “the criminal charges” filed
against Clark and Irwin. Grievance Coordinator L. Young summarily
dismissed both complaints as unfounded on August 6, 2012, marking in
the Grievance Coordinator’s Response box on both forms that “[i]t is not
a grievable issue.”
ENTLER V. GREGOIRE 13
3. Retaliation
On August 1, 2012, Entler had written letters to
Washington Governor Christine Gregoire and DOC Secretary
Bernie Warner complaining of retaliatory conduct at the WSP
and threatening to contact the U.S. Department of Justice.
BUM Clark issued Entler another serious infraction on
August 7, 2012, claiming that his August 1 letters to
Secretary Warner and Governor Gregoire were coercive and
retaliatory in violation of Rule 663 because they contained
threats to take legal action. The disciplinary hearing took
place before Pierce on August 15. Pierce found that Entler’s
“threats of legal suits” constituted harassment but once again
reduced his violation to a general infraction pursuant to Rule
202. Entler was sanctioned to five more days of cell
confinement.
D. The Pleadings
In addition to First Amendment retaliation claims, the
Complaint includes several state law claims.10 In their
Answer, Defendants raised the following purported
Affirmative Defenses: (1) failure to state a claim; (2) failure
to exhaust administrative remedies; (3) existence of a
legitimate penological goal; (4) qualified immunity; (5) lack
of personal participation; and (6) lack of supplemental
jurisdiction over state law claims.
10
Entler argues on appeal, for the first time, that his Complaint
implicitly includes a Free Exercise Clause claim. Since the issue was
neither raised before nor decided by the district court, we will not, in the
exercise of our discretion, address it on appeal. See United States v.
Flores-Montano, 424 F.3d 1044, 1047 (9th Cir. 2005) (“[I]ssues not raised
to the district court normally are deemed waived . . . .”).
14 ENTLER V. GREGOIRE
II
Defendants moved for judgment on the pleadings under
Rule 12(c). Initially, the district court summarily adopted
Magistrate Judge Hutton’s Report and Recommendation
(“R&R”) recommending that Defendants’ 12(c) motion be
granted and that the complaint be dismissed with prejudice.
In the R&R, the magistrate judge held that the filing of
informal complaints is protected by the First Amendment as
part of the “grievance process,” but nonetheless concluded
that Entler’s constitutional claim was not actionable because
Defendants had a legitimate penological interest in punishing
him for the “threats and coercion” contained in his
complaints. The magistrate judge also concluded that,
regardless, Defendants were entitled to qualified immunity
“because Entler’s rights were not clearly established at the
time he was sanctioned.”
Entler sought reconsideration. In a written decision
denying the motion, the district court, disagreeing with the
magistrate judge, held that Entler’s informal complaints were
not protected by the First Amendment because they “were not
part of the grievance process”; but the court agreed that there
was a “rational connection” in the “particular context” of the
case with the correctional institution’s “legitimate
penological interest,” namely the “peaceable operation of the
prison through the insistence on respect.” Bradley v. Hall,
64 F.3d 1276, 1281 (9th Cir. 1995), overruled on other
grounds by Shaw v. Murphy, 532 U.S. 223, 230 n.2 (2001).
The court also agreed with the R&R that, in any event,
“defendants are entitled to qualified immunity.”
This appeal followed.
ENTLER V. GREGOIRE 15
III
We review both the grant of a Rule 12(c) motion and the
grant of qualified immunity de novo. See Fleming v. Pickard,
581 F.3d 922, 925 (9th Cir. 2009) (grant of 12(c) motion);
Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir.
2005) (grant of qualified immunity). A pro se complaint
must be “liberally construed,” since “a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)).
A. The Threats to Sue
We are mindful that “[r]unning a prison is an inordinately
difficult undertaking,” Mauro v. Arpaio, 188 F.3d 1054, 1058
(9th Cir. 1999) (en banc) (quoting Turner v. Safley, 482 U.S.
78, 84–85 (1987)), and that we should “accord adequate
deference to the judgment of the prison authorities,” Lewis
v. Casey, 518 U.S. 343, 361 (1996). We cannot, however,
condone punishing a prisoner for simply threatening to sue if
his grievances are not addressed.
Regardless of the prisoner’s misdeeds—however
reprehensible—“[p]rison walls do not form a barrier
separating prison inmates from the protections of the
Constitution.” Turner, 482 U.S. at 84. The most
fundamental of the constitutional protections that prisoners
retain are the First Amendment rights to file prison
16 ENTLER V. GREGOIRE
grievances11 and to pursue civil rights litigation in the
courts,12 for “[w]ithout those bedrock constitutional
guarantees, inmates would be left with no viable mechanism
to remedy prison injustices.” Rhodes v. Robinson, 408 F.3d
559, 567 (9th Cir. 2005).
The dichotomy that the district court drew between formal
and informal grievances has no constitutional underpinning;
nor does the distinction between a threat to initiate litigation
and the litigation. To the contrary, “[t]he applicability of the
constitutional right to redress of grievances does not hinge on
the label the prison places on a particular complaint,”
Brodheim v. Cry, 584 F.3d 1262, 127 n.4 (9th Cir. 2009), and
embraces threats to sue, Jones v. Williams, 791 F.3d 1023,
1035–36 (9th Cir. 2015). Thus, in Jones, where the prisoner
was sanctioned for verbally confronting the Penitentiary’s
Assistant Food Services Manager in the prison’s kitchen
“with complaints of discrimination and a threat to sue,” we
held that summary judgment dismissing plaintiff’s retaliation
11
See Turner, 482 U.S. at 84 (“[P]risoners retain the constitutional
right to petition the government for the redress of grievances . . . .”); see
also Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (“It is well-
established that, among the rights they retain, prisoners have a First
Amendment right to file prison grievances . . . .”); Bruce v. Ylst, 351 F.3d
1283, 1288 (9th Cir. 2003) (“[A] chilling effect on a prisoner’s First
Amendment right to file prison grievances is sufficient to raise a
retaliation claim.”).
12
See Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974) (“[Prisoners]
retain right of access to the courts.”); see also Hudson v. McMillian,
503 U.S. 1, 15 (1992) (“[T]he [prisoner’s] right to file a court action
stands . . . as his most fundamental political right, because preservative of
all rights.’” (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)));
Bounds v. Smith, 430 U.S. 817, 821 (1977) (“It is now established beyond
doubt that prisoners have a constitutional right of access to the courts.”).
ENTLER V. GREGOIRE 17
claim was improper because “Jones’s [verbal] complaints of
discrimination to his supervisors and statements of intention
to file suit were conduct protected by the First Amendment.”
Id.
The district court should have recognized, therefore, that
the form of the complaints—even if verbal, let alone, as here,
written—is of no constitutional significance, and that threats
to sue fall within the purview of the constitutionally protected
right to file grievances. See Hargis v. Foster, 312 F.3d 404,
411 (9th Cir. 2002) (reversing summary judgment on a
prisoner’s First Amendment claim because “a jury could
reasonably conclude that the prison officials acted
unreasonably in characterizing [a prisoner’s verbal threat to
sue] as an attempt to coerce . . .”).13
The district court’s misunderstanding of these basic tenets
of First Amendment jurisprudence was compounded by its
incorrect conclusion that dismissal was warranted because the
informal complaints “were not part of the ‘grievance
process.’” However, Entler did exactly what he was
“expected” to do by the DOC Grievance Program Manual: he
sought “informal resolution” of his concerns “through regular
administrative channels prior to utilizing the grievance
machinery” by submitting “kites” to the appropriate prison
officials. This is as it should be. Entler gave the prison
administration the opportunity in the first instance to attempt
13
Another district court in our circuit has correctly recognized,
therefore, that the form of the grievance is of no constitutional moment.
See Merrick v. Ellis, 2015 WL 9999194, at *6 (C.D. Cal. Nov. 30, 2015)
(“So Ellis’s contention relies solely on the distinction between an oral
grievance and a written one. The First Amendment facially makes no such
distinction.”).
18 ENTLER V. GREGOIRE
to resolve his concerns and thus obviate the need to engage in
the formal grievance process—with its attendant
administrative burdens and costs —and litigation.
Indeed, it may well be that if the prison officials were able
to address Entler’s concerns rather than to punish him for his
threats to sue, this litigation might never have come to pass.
It would have been a good thing. In 2012, the year Entler
initiated this suit, prisoners nationwide filed 54,402 of the
267,990 civil cases brought in the district courts.14 In 2016,
the most recent year with complete statistics, these filings had
increased to 76,417 out of 292,159.15 Thus, over 25% of the
district courts’ civil caseload in our country entails prisoner
litigation.16
14
Admin. Office of the U.S. Courts, Judicial Business of the U.S.
Courts: 2012 Annual Report of the Director Table C-2 (2012),
http://www.uscourts.gov/statistics/table/c-2/statistical-tables-federal-
judiciary/2012/12/31.
15
Admin. Office of the U.S. Courts, Judicial Business of
the U.S. Courts: Table C-2 – U.S. District Courts – Civil Statistics
Table for the Federal Judiciary (December 31, 2016),
http://www.uscourts.gov/statistics/table/c-2/statistical-tables-federal-
judiciary/2016/12/31.
16
In all probability, in Entler’s case, this would not have lessened this
burden since, while a prisoner at WSP, he had filed fifteen different civil
rights cases before the present one. Presumably, a prison rule could be
enacted to address administrative burdens flowing from frequent, frivolous
kites. See, e.g., 28 U.S.C. 1915(g) (dealing with the “frequent filer”
prisoner litigator). But we are not dealing with that concern here since the
case entails only the application of the coercion/intimidation rule, and
Appellees do not contend that the kites were frivolous. Cf. Bill Johnson’s
Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983) (“[B]aseless
litigation is not immunized by the First Amendment right to petition.”).
ENTLER V. GREGOIRE 19
Turning to the analytical structure of Entler’s First
Amendment retaliation claim, he would be entitled to prevail
if: “(1) . . . a state actor took some adverse action against
[him] (2) because of (3) [his] protected conduct, and 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, 408 F.3d at 567–68
(9th Cir. 2005).
Appellees do not deny that as “state actors” they took
adverse action against Entler; nor do they argue that their
actions would not have “chilled” the exercise of his
entitlement to seek redress for his grievances.17 But, in
addition to incorrectly contending that Entler’s informal
complaints were not protected conduct, they assert that the
application of Rule 663 reasonably advanced a legitimate
correctional goal. That would be so if there was a “‘valid,
rational connection’ between the prison regulation and the
legitimate [and neutral] governmental interest put forward to
justify it.” Shaw v. Murphy, 532 U.S. 223, 229 (2001)
(quoting Turner, 482 U.S. at 89) (alterations in the original).
However, Entler’s kites simply set forth the bases for his
grievances, often in a respectful tone (e.g., twice beseeching
the authorities to “[p]lease remove” the contested $200
17
We also held in Jones that the sanction imposed—depriving Jones
of points toward program incentives—“‘would chill or silence a person of
ordinary firmness’ from engaging in such protected activities in the
future,” Jones, 791 F.3d. at 1036 (quoting Rhodes, 408 F.3d at 568–69);
see also Rhodes, 408 F.3d at 567 n.11 (holding “harm that is more than
minimal will almost always have a chilling effect.”).
20 ENTLER V. GREGOIRE
charge),18 and since he had the right to threaten to sue if his
grievances were not addressed, the nexus between the
application of the rule and the government’s stated interest of
preventing the coercion or intimidation of prison staff was
“so remote as to render the policy[’s application] arbitrary or
irrational,” Turner, 482 U.S. at 89–90.
There remains the issue of qualified immunity. Appellees
would not be entitled to prevail if the constitutional right
violated “was clearly established at the time of the challenged
conduct.” City of San Francisco v. Sheehan, 135 S. Ct. 1765,
1774 (2015). “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.’”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)
(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). “In
the Ninth Circuit, we begin our inquiry by looking to binding
precedent. If the right is clearly established by decisional
authority of the Supreme Court or this Circuit, our inquiry
should come to an end.” Boyd v. Benton Cty., 374 F.3d 773,
781 (9th Cir. 2004) (citation omitted).
Although there is no Supreme Court case directly on
point, there is clear Ninth Circuit precedent.
18
The district court’s reliance on Bradley in concluding that
“peaceable operation of the prison through the insistence on respect” was
here a legitimate penological interest is misplaced. See Bradley v. Hall,
64 F.3d 1276, 1281–82 (9th Cir. 1995). Appellees rely on coercion, not
respect, as the legitimate penological interest. Appellees’ Br. at 35
(“[T]he legitimate penological interests served by disrespectful and
coercive speech are different.”). This was wise, as the court in
Bradley found in favor of the prisoner, holding that a rule banning
disrespectful speech was unconstitutional as applied. Bradley, 64 F.3d at
1281–82.
ENTLER V. GREGOIRE 21
First, it was, of course, clearly established when Entler
filed his grievances in 2012 that he had the “constitutional
right” to do that, see Turner, 482 U.S. at 84—a right that did
not “hinge on the label” the prison placed on his complaints.
Brodheim, 584 F.3d at 1271 n.4.19 Nor could the prison’s
officials “escape constitutional scrutiny by citing a legitimate
penological interest” in the absence— as here—of a “valid,
rational connection” between the adverse action imposed on
the prisoner and the government’s stated interest. Id. at
1272–73. And it was also clearly established that Entler had
the time-honored right to pursue civil litigation, a right
liberally exercised for over forty years. See William Bennett
Turner, When Prisoners Sue: A Study of Prisoner Section
1983 Suits in the Federal Courts, 92 Harv. L. Rev. 610,
610–11 (1979) (recognizing that “[p]risoners, like other
people, may sue state and local officials under 42 U.S.C.
§ 1983, to redress the deprivation of federal constitutional
rights” and discussing an “upsurge in volume” of such suits
beginning in the 1970s).
It was also beyond cavil that Entler’s grievances were the
first requisite steps in the pursuit of civil litigation. See
Porter v. Nussle, 534 U.S. 516, 524 (2002) (“[E]xhaustion is
now required for all action[s] . . . brought with respect to
prison conditions, whether under § 1983 or any other Federal
law.”). The threat of civil litigation if a prisoner’s complaints
are not redressed is implicit in every grievance; explicitly
articulating that threat as a precursor to initiating civil
19
Moreover, the prison officials were chargeable with knowledge of
the contents of the Manual and that Entler was “expected” to comply with
its procedural requirements—as he did—in initiating his grievances. See
Anderson v. Smith, 697 F.2d 239, 240 (8th Cir. 1983) (“An inmate is
entitled to expect the Bureau of Prisons to follow its own policies.”).
22 ENTLER V. GREGOIRE
litigation does not suddenly make that threat more
intimidating or coercive.
Thus, in the analogous Title VII retaliation context, we
noted—twenty years before Entler was punished—that “[w]e
see no legal distinction to be made between the filing of a
charge which is clearly protected, and threatening to file a
charge.” Gifford v. Atchison, Topeka and Santa Fe Ry. Co.,
685 F.2d 1149, 1156 n.3 (9th Cir. 1982) (citation omitted).
We find the Gifford footnote persuasive since we see no
material distinction between retaliation in the Title VII
context and prisoner retaliation.20 The sanctity of a
constitutional right is at least of equal moment as a statutory
right. And even though, in the face of Ninth Circuit
precedent, we need not resort to out-of-circuit caselaw, we
note with approval two out-of-circuit district court cases
involving prisoner litigation.
In Sprau v. Coughlin, 997 F. Supp. 390 (W.D.N.Y. 1998),
the district court held that “plaintiff’s conduct in threatening
to file a [prisoner] complaint was protected by the First
Amendment’s guarantee of the right to petition the
20
The Gifford footnote is not mere dicta and is worthy of substantive
consideration. As we commented in Phillips v. Osborne, 444 F.2d 778,
782–83 (9th Cir. 1971): “We think that the location, whether in the text or
in a footnote, of something which the writer of an opinion thinks should
be said, is a matter of style which must be left to the writer. A notable
example of a footnote of great significance is footnote No. 4 in the opinion
of Mr. Justice Stone (later Chief Justice Stone) in United States v.
Carolene Products Co., 304 U.S. 114 (1938). See, among the many
comments which that footnote has excited, that of Judge Learned Hand,
‘Chief Justice Stone’s Concept of the Judicial Function’ in ‘The Spirit of
Liberty’ (Dillard Ed. 1952) 201, 205.”
ENTLER V. GREGOIRE 23
government for redress of grievance.” Sprau, 997 F. Supp. at
393.
Similarly, in Carter v. Dolce, 647 F. Supp. 2d 826 (E.D.
Mich. 2009), the district court held that there was “little
difference between retaliating against a [prisoner] for filing
a grievance, and retaliating for threatening to file one.”
Carter, 647 F. Supp. 2d at 834. The court cited as analogous
two Sixth Circuit decisions, one of which expressly relies on
the Gifford footnote: In Jackson v. City of Columbus, 194
F.3d 737, 756–57 (6th Cir. 1999), abrogated on other
grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002), the circuit court held that an employee engages in
protected activity under the First Amendment when he
threatens to file a lawsuit on a matter of public concern, and
in Polk v. Yellow Freight System, Inc., 801 F.2d 190 (6th Cir.
1986), the circuit court held that there “‘is no legal distinction
. . . between the filing of a charge which is clearly protected
. . . and threatening to file a charge’” under Title VII’s anti-
retaliation provision, Polk, 801 F.2d at 200 (quoting Gifford
footnote). The court in Carter further recognized that
“threatening to resort to the formal grievance process is itself
the first step in that process.” Carter, 647 F. Supp. 2d at 834.
In essence, it is illogical to conclude that prison officials
may punish a prisoner for threatening to sue when it would
be unconstitutional to punish a prisoner for actually suing.
Thus, once again, as we held in Hargis, ten years before
Entler was sanctioned, a threat to sue—even if verbal—may
24 ENTLER V. GREGOIRE
not ipso facto rise to the level of coercion to support prison
retaliation.21
Taking the complaint as true in the face of a 12(c) motion
to dismiss on the pleadings, see Fleming v. Pickard, 581 F.3d
922, 925 (9th Cir. 2009) (“We must accept all factual
allegations in the complaint as true and construe them in the
light most favorable to the non-moving party”), we cannot
conclude that a reasonable official would not have understood
that disciplining Entler for threatening to file a civil suit was
constitutionally impermissible. Therefore, on the papers
before us, Appellees are not entitled to qualified immunity for
Entler’s threats to initiate civil litigation.
B. The Criminal Threat
Included in the mix of infractions that caused Hearing
Officer Jackson to sentence Entler to fifteen days of lost “big
yard” and gym time was Entler’s threat to “file criminal
charges/arrest by sheriff.” We hold, as a matter of first
impression in our circuit, that both the filing of a criminal
21
We acknowledge that the Seventh Circuit in Bridges v. Gilbert,
557 F.3d 541, 555 (7th Cir. 2009), cryptically stated in dicta, without
citation to a single authority, that “it seems implausible that a threat to file
a grievance would itself constitute a First Amendment-protected
grievance.” But see Ashley v. Seamon, 32 Fed. Appx. 747, 749–50 (7th
Cir. 2002) (holding prisoner’s threat to sue was protected conduct). Even
if it were Ninth Circuit dicta, we would not be bound to follow it. See,
e.g., Cent. Virginia Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006) (“[W]e
are not bound to follow our dicta in a prior case in which the point now at
issue was not fully debated.”). In any event, even in the absence of Ninth
Circuit precedent, “lack of complete unanimity [of out-of-circuit courts]
does not mean that a legal principle has not been clearly established,”
Inouye v. Kemma, 504 F.3d 705, 717 (9th Cir. 2007), and “available near-
unanimous” case law would suffice. Id.
ENTLER V. GREGOIRE 25
complaint by a prisoner, as well as the threat to do so, are
protected by the First Amendment, provided they are not
baseless. See Bill Johnson’s Restaurants, Inc. v. NLRB,
461 U.S. 731, 743 (1983).22
Although we have not had occasion to opine on the
foundational constitutional principle, we join our two sister
circuits that have held that the filing of criminal complaints
falls within the embrace of the First Amendment. See Meyer
v. Bd. of Cty. Comm’rs, 482 F.3d 1232, 1243 (10th Cir. 2007)
(“[F]iling a criminal complaint with law enforcement officials
constitutes an exercise of the First Amendment right to
petition the government for the redress of grievances.”);
United States v. Hylton, 710 F.2d 1106, 1111 (5th Cir. 1983)
(filing of a “nonfraudulent criminal complaint against federal
agents” represented “a legitimate and protected exercise of
[plaintiff’s] right to petition for the redress of grievances”).23
As the court in Meyer aptly stated:
[T]his case involves the right to present a
criminal complaint which is a form of the
right to petition for redress of grievances, and
thus one of the most basic of all constitutional
rights. In a non-precedential but persuasive
22
Appellees appropriately do not argue that the complaint was
baseless. Indeed, it elaborately sets forth a number of penal statutes that
are implicated when a public official allegedly is guilty of misconduct in
the discharge of his duties.
23
Although we need not consider whether Entler was also punished
for filing his criminal complaint, since this contention is unsupported in
the record, we nonetheless must decide that filing a criminal complaint is
protected conduct before reaching the question of whether threatening to
file the complaint would also be protected conduct.
26 ENTLER V. GREGOIRE
opinion from one of our district courts
addressing a closely analogous situation, the
district judge said: While Plaintiff did not
have a right to force the local prosecutor to
pursue her charges, she possessed the right to
access judicial procedures for redress of her
claimed wrongs and to set in motion the
governmental machinery.
482 F.3d at 1243 n.5; see also Linda R.S. v. Richard D.,
410 U.S. 614, 619 (1973) (holding “a private citizen lacks a
judicially cognizable interest in the prosecution or
nonprosecution of another”).
It matters not who files the criminal complaint or who the
complaint is against. Thus, there is no constitutional
distinction to be drawn between the filing of a criminal
complaint against a private individual, as in Meyer,24 and the
filing of a criminal complaint against a public official, as in
Hylton.25 Nor does it matter that a prisoner files the criminal
complaint. See, e.g., Hayes v. Walsh, 2012 WL 2462307, at
*9 (M.D. Pa. May 14, 2012), adopted in relevant part by
Hayes v. Walsh, 2012 WL 2462316 (M.D. Pa. June 27, 2012)
(improper to retaliate against prisoner for filing criminal
24
See also Jones v. Pore, 2007 WL 1875653, at *1–2, 4 (D. Or. June
26, 2007) (complaint against ex-wife); Jackson v. New York, 381 F. Supp.
2d 80, 89 (N.D.N.Y. 2005) (complaint against neighbors); Lott v. Andrews
Ctr., 259 F. Supp. 2d 564, 567–68 (E.D. Tex. 2003) (complaint against co-
worker).
25
See also Low v. City of Sacramento, 2010 WL 3714993, at *2, 5–6
(E.D. Cal. Sept. 17, 2010) (complaint against police officer); Estate of
Morris v. Dapolito, 297 F. Supp. 2d 680, 683, 692–93 (S.D.N.Y. 2005)
(complaint against gym teacher).
ENTLER V. GREGOIRE 27
complaint against prison guard); Cannon v. Dean Newport,
2016 WL 1045540, at *4 (E.D. Wis. Mar. 15, 2016) (same, in
respect to criminal complaint against police officer); Horan
v. Wetzel, 2014 WL 2442868, at *4 (Pa. Commw. Ct., May
28, 2014) (same, in respect to criminal complaint against
prison staff).
It logically follows, therefore, just as with threats to file
civil litigation, that the right to petition for the redress of
grievances applies with equal force to threats to file criminal
complaints. Therefore, the threat by a prisoner to file a
criminal complaint, as well as the filing of the complaint, are
both constitutionally protected conduct.
Nor could there be a valid penological interest in
punishing Entler for his criminal threat. There is even less of
a nexus between the prison’s coercion/intimidation regulation
and a legitimate government interest than in the civil context.
All Entler could do was request that criminal charges be
brought, whereas he had the absolute right to initiate civil
litigation.
This leaves the question of qualified immunity. Although
we hold that Entler’s threat to file his criminal complaint was
a constitutionally protected right, we are not convinced that
at the time of the threat “any reasonable official in
[Appellees’] shoes would have understood that [they were]
violating it, meaning that existing precedent . . . placed the
. . . constitutional question beyond debate.” Sheehan, 135 S.
Ct. at 1774 (citation omitted).
While it is true that where, as here, there is no binding
Ninth Circuit precedent, we may “look to whatever decisional
law is available, including relevant decisions of other circuits,
28 ENTLER V. GREGOIRE
state courts, and district courts,” Moonin v. Tice, 868 F.3d
853, 868 (9th Cir. 2017) (quoting Tarabochia v. Adkins,
766 F.3d 1115, 1125 (9th Cir. 2014)), neither Meyer, Hylton,
nor the three out-of-circuit prisoner cases hold that the threat
to file a criminal complaint is constitutionally protected
conduct.26 Unlike the threat to sue, therefore, there is neither
Ninth Circuit precedent nor out-of-circuit authority
addressing that issue, let alone a “robust consensus of cases
of persuasive authority.” Sheehan, 135 S. Ct. at 1778
(citation omitted).27
CONCLUSION
Since Entler has alleged cognizable First Amendment
retaliation claims regarding his threats to sue, and qualified
immunity does not attach, it was improper to dismiss the
complaint in its entirety under Rule 12(c). However, in
regard to Entler’s threat to file a criminal complaint, even
26
Moreover, of the three cases recognizing a prisoner’s constitutional
right to file criminal complaints, one was decided just a few months before
Entler’s threat, see Hayes, 2012 WL 2462307 (decided in May 2012), and
the others some years later, see Cannon, 2016 WL 1045540 (decided in
March 2016); Horan, 2014 WL 2442868 (decided in May 2014).
27
Since the record does not support Entler’s claim that he was
retaliated against for filing a criminal complaint, we need not address
whether qualified immunity would there attach.
ENTLER V. GREGOIRE 29
though it is a constitutionally protected right, qualified
immunity attaches; hence, dismissal of that aspect of the
complaint was proper.28
REVERSED in part, AFFIRMED in part, and
REMANDED.
28
We note that the threat to file a criminal complaint was one of the
reasons—together with Entler’s threats to sue regarding the $200 charge
on his prison account and the denial of his application for an art curio
permit—for the hearing officer’s sentence of fifteen days of lost “big
yard” and gym time. The district court may have to resolve as a factual
matter whether Entler would nonetheless have been sanctioned for his
threats to sue in the absence of this threat.