# Brodheim v. Cry > Court of Appeals for the Ninth Circuit · October 28, 2009 · 584 F.3d 1262 URL: https://www.frixlaw.com/law-library/cases/9629416 ## Case - **Full name:** Michael J. BRODHEIM, Plaintiff-Appellant, v. Michael CRY, Defendant-Appellee - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** October 28, 2009 - **Citations:** 584 F.3d 1262; 2009 U.S. App. LEXIS 23721; 2009 WL 3448411 - **Precedential status:** Published - **Opinion:** Concurring in part by Bea - **Judges:** Reinhardt, Bea, Larson - **Cited by:** 1,111 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9629416 ## How later opinions describe it (automated extraction) - 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 … - 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 behin… - 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 commenceme… - 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 ad… - explaining that “disrespectful language in a prisoner’s grievance is itself protected activity under the First Amendment” and concluding that a threat of punitive action beyond refusing to accept a grievance can constitute an adverse retaliatory action ## Opinion text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9629416. Public record. Not legal advice.