finding that an inmate-plaintiff satisfied the requirement of showing adverse action by producing evidence that the defendant “denied [the inmate-plaintiff’s] interview request and noted on the denial that [the inmate-plaintiff] should be ‘careful’ what he writes and requests in his administrative grievances,” and then the same official requested that the inmate-plaintiff be transferred out of the facility due to his filing of grievances and a lawsuit
How later courts described this case
- finding that an inmate-plaintiff satisfied the requirement of showing adverse action by producing evidence that the defendant “denied [the inmate-plaintiff’s] interview request and noted on the denial that [the inmate-plaintiff] should be ‘careful’ what he writes and requests in his administrative grievances,” and then the same official requested that the inmate-plaintiff be transferred out of the facility due to his filing of grievances and a lawsuit
- holding a plaintiff must set forth evidence showing that his treating physicians’ chosen course of treatment and disability designation/accommodations decisions were medically unacceptable, or that his filing prisoner appeals “was the ‘substantial’ or ‘motivating’ factor behind the Defendant’s conduct.”
- explaining that a memo recommending that the plaintiff be transferred was 28 1 “circumstantial evidence” that an earlier warning “to be careful what you write” would be 2 interpreted as a threat of discipline or transfer, even though the memo was written after the 3 commencement of the plaintiff’s suit
- finding prisoner’s claims of a false disciplinary report, coupled with false 5 statements to the parole board, and an “angry” threat to the prisoner that his grievance 6 would not “stand” sufficient to allege the “absence of a legitimate penological reason for 7 the alleged adverse actions.”
Written by the judges who cited it.
The opinion
BEA, Circuit Judge,
concurring in part and concurring in the judgment:
I agree with the majority opinion except for its treatment of the prison’s legitimate penological interest. To my mind, the majority’s holding that there is no legitimate penological interest in admonishing prisoners to be more respectful in future written grievances is unnecessary to the resolution of the case. If the majority opinion made the exact opposite holding, that there is such a legitimate penological interest, summary judgment would still be in error. This is because a rational trier of fact could find, based on Cry having warned Brodheim to “be careful what you write, request on this form,” that Cry retaliated against Brodheim for either being disrespectful in the grievance, or for having filed the grievance itself. Because there is no legitimate penological interest in warning prisoners not to file grievances, a trial would still be necessary to resolve the issue of Cry’s retaliatory motive even if the majority held there was no penological interest in admonishing prisoners to be more respectful. Therefore, because the district court erred by granting summary judgment to defendants no matter which way we decide this issue, it is unnecessary to decide it. However, I agree that the district court erred by granting summary judgment to the defendants, so I concur.