Amicus Curiae Brief — Kevin Snodgrass, Jr., Petitioner v. S. L. Messer, et al.

Supreme Court briefDec 21, 2017

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No. 17-635

IN THE

Supreme Court of the United States

————

KEVIN SNODGRASS, JR.,

Petitioner,

S.L. MESSER; M.L. COUNTS; C. BISHOP;

E.R. BARKSDALE; J. BENTLEY; JOE FANIN;

TORI RAIFORD; GARRY A. ADAMS; HAROLD CLARK,

Respondents.

————

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

————

BRIEF OF PRISONERS’ RIGHTS GROUPS AS

AMICI CURIAE IN SUPPORT OF PETITIONER

————

LAUREN M. WEINSTEIN

Counsel of Record

ROBERT K. KRY

BENJAMIN T. SIROLLY

MOLOLAMKEN LLP

The Watergate, Suite 660

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

lweinstein@mololamken.com

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

1. Whether the First Amendment protects the

speech of a prisoner who tells an officer that she intends

to file a grievance regarding the officer’s misconduct?

2. Whether labeling a prisoner a “snitch” in a prison

setting constitutes an adverse action for purposes of a

First Amendment retaliation claim?

(i)

TABLE OF CONTENTS

Page

Interest of Amici Curiae .............................................

Statement ......................................................................

Legal Framework............................................... 3

A. The Prison Litigation Reform Act

of 1995 ............................................................ 3

B. Grievance Processes in State

Prisons ........................................................... 4

C. First Amendment Retaliation

Claims ............................................................ 5

II. Proceedings Below ............................................. 5

Summary of Argument ...............................................

Argument ......................................................................

I. Protecting Prisoners’ Statements of Intent

To File Grievances Is Essential To Protect

Their Access to the Courts .................................... 9

A. Corrections Officers Frequently

Deter Prisoners from Filing

Grievances ...................................................... 9

B. Protecting Informal Resolution of

Grievances Is Essential To Provide

Prisoners Access to the Courts ................... 12

II. The “Snitch” Label Deters Prisoners

from Filing Grievances and Marks

Them as Targets for Violence ............................ 17

A. The “Snitch” Label Has a Unique

Connotation in Prisons.................................. 17

B. Snitches Are Often Killed, Beaten,

or Otherwise Retaliated Against in

Prisons............................................................. 19

(iii)

TABLE OF CONTENTS—Continued

Page

Conclusion ........................................................................ 22

TABLE OF AUTHORITIES

Page(s)

CASES

Adames v. Perez, 331 F.3d 508

(5th Cir. 2003) ..................................................... 8, 21

Benefield v. McDowall, 241 F.3d 1267

(10th Cir. 2001) ................................................... 21

Booth v. Churner, 532 U.S. 731 (2001) .................

Colon v. Coughlin, 58 F.3d 865

(2d Cir. 1995).......................................................

Crawford-El v. Britton,

523 U.S. 574 (1998) .............................................

Dale v. Poston, 548 F.3d 563

(7th Cir. 2008) ................................................... 8, 18

Davis v. Goord, 320 F.3d 346

(2d Cir. 2003)....................................................... 12

Entler v. Gregoire, 872 F.3d 1031

(9th Cir. 2017) ..................................................... 12

Espinal v. Goord, 558 F.3d 119

(2d Cir. 2009).......................................................

Fairley v. Fermaint, 482 F.3d 897

(7th Cir. 2007) ..................................................... 19

Harmon v. Berry, 728 F.2d 1407

(11th Cir. 1984) (per curiam) ............................ 21

Irving v. Dormire, 519 F.3d 441

(8th Cir. 2008) ..................................................... 17

Northington v. Marin, 102 F.3d 1564

(10th Cir. 1996) ................................................... 18

Pearson v. Welborn, 471 F.3d 732

(7th Cir. 2006) ..................................................... 12

Ross v. Blake, 136 S. Ct. 1850 (2016) ....................

TABLE OF AUTHORITIES—Continued

Page(s)

Reece v. Groose, 60 F.3d 487

(8th Cir. 1995) ..................................................... 21

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

Smith v. Mosley, 532 F.3d 1270

(11th Cir. 2008) ................................................... 12

Sprouse v. Babcock, 870 F.2d 450

(8th Cir. 1989) ..................................................... 17

Turner v. Safley, 482 U.S. 78 (1987) .................. 9, 16

United States v. Galaviz, 687 F.3d 1042

(8th Cir. 2012) ..................................................... 17

Valandingham v. Bojorquez, 866 F.2d 1135

(9th Cir. 1989) ..........................................................

Watson v. Rozum, 834 F.3d 417

(3d Cir. 2016), cert. denied,

137 S. Ct. 2295 (2017) ..............................................

Woodford v. Ngo, 548 U.S. 81 (2006) ...........................

3, 4

STATUTES

The Prison Litigation Reform Act of 1995:

42 U.S.C. § 1997e et seq. ....................................

42 U.S.C. § 1997e(a) ...........................................

REGULATIONS

Fla. Admin. Code r. 33-103.005 .............................

Ohio Admin. Code 5120-9-31(K) ...........................

Or. Admin. R. 291-109-0100(3)(a) .........................

OTHER AUTHORITIES

Alaska Dep’t of Corr. Policies & Procedures,

Prisoner Grievances

(Oct. 13, 2006), http://bit.ly/2kGyOH4 ...................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Ariz. Dep’t of Corr., Department Order: 802,

Inmate Grievance Procedure (Dec. 12,

2013), http://bit.ly/2oFpIQ5.....................................

Ark. Dep’t of Corr., Administrative Directive

Inmate Grievance Procedure (May 28,

2012), http://bit.ly/2Byu9i9 ......................................

Cheryl Bell, et al., Rape and Sexual

Misconduct in the Prison System:

Analyzing America’s Most “Open”

Secrets, 18 Yale L. & Pol’y Rev. 195

(1999).................................................................

Jeff Bingman, N.M. Att’y Gen., Report of the

Attorney General on the February 2 and

3, 1980 Riot at the Penitentiary of New

Mexico (June 1980), http://bit.ly/2Bt7YtZ ............

Julie K. Brown, Was Killing Behind Bars a

Set-Up?, Miami Herald

(Jan. 10, 2015)......................................................... 19, 20

Kitty Calavita & Valerie Jenness, Appealing

to Justice: Prisoner Grievances, Rights,

and Carceral Logic (2015) .......................................

Jean Casella & James Ridgeway, Prisoner

Grievances: “The System for Going Up

Against the System,” Solitary Watch (Mar.

24, 2011), http://bit.ly/2CACIZp .............................

Colo. Dep’t of Corr., Grievance Procedure

(Dec. 15, 2012), http://bit.ly/2B7Kvxl ...........

Conn. Dep’t of Corr., Inmate Administrative

Remedies (Aug. 15, 2013),

http://bit.ly/2CzJ5Ml ................................................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Joe Davidson, At Prison Bureau, a Fear To

Speak Up, Wash. Post

(July 14, 2011) ........................................................... 18, 19

D.C. Dep’t of Corr., Inmate Grievance

Procedure (IGP) (Oct. 4, 2014),

http://bit.ly/2BuGrbu................................................

Del. Dep’t of Corr., Medical Grievance

Process (Nov. 7, 2004, rev. Sept. 2, 2015),

http://bit.ly/2kGqYx2................................................

Fed. Bureau of Prisons, Inmate Information

Handbook (Nov. 2012),

http://bit.ly/2kexADx ...............................................

Fed. Judicial Ctr., Survey of Harm to

Cooperators: Final Report (2016),

http://bit.ly/2kg36Ry ........................................

8, 21

Ga. Dep’t of Corr., Statewide Grievance

Procedure (Dec. 10, 2012),

http://bit.ly/2BFhSbN ..............................................

Jacob Gershman, Why Life for ‘Snitches’ Has

Never Been More Dangerous, Wall St. J.

(June 20, 2017) ..........................................................

John J. Gibbons & Nicholas

De B. Katzenbach, Confronting

Confinement: A Report of the Commission

on Safety and Abuse in America’s

Prisons, 22 Wash. U. J.L. & Pol’y 385

(2006) ......................................................................... 7, 10

Samuel Gilbert, How a Bloody Prison

Massacre Became a Tourist Hotspot, The

Daily Beast (Aug. 10, 2015) .....................................

TABLE OF AUTHORITIES—Continued

Page(s)

Haw. Dep’t of Pub. Safety, Informal

Resolution Procedure (July 1, 2015),

http://bit.ly/2CZmvOr ..............................................

Jessica A. Hinman, Sexual Assault of Male

Inmates: Prevalence, Characteristics, and

Inmate Perceptions (Dec. 5, 2008)

http://bit.ly/2Btz6Zz .................................................

Human Rights Watch, No Escape: Male Rape

in U.S. Prisons, http://bit.ly/2kJETm1.................

Idaho Dep’t of Corr., Grievance & Informal

Resolution Procedure

(Sept. 1, 1995), http://bit.ly/2jdXh6a ......................

Ill. Dep’t of Corr., DR 504 Grievance

Procedures (Sept. 30, 2003),

http://bit.ly/2l8Mfxs ..................................................

Ind. Dep’t of Corr., Offender Grievance

Process (Jan. 1, 2010),

http://bit.ly/2kdYQlB................................................

Iowa Dep’t of Corr., Grievance Resolution

Process (Mar. 1983, rev. Jan. 2005),

http://bit.ly/2z6vsCd .................................................

Jeremy Kahn, The Story of a Snitch, The

Atlantic (Apr. 2007) ..................................................

Kan. Dep’t of Corr., Disciplinary Reports &

Grievances, (Jan. 8, 2014),

http://bit.ly/2Czvncu ..............................................

Priyah Kaul, et al., Michigan Law Prison

Information Project, Prison and Jail

Grievance Policies: Lessons from a FiftyState Survey (Oct. 18, 2015),

http://bit.ly/2oOVQRg ..............................................

TABLE OF AUTHORITIES—Continued

Page(s)

Raymond G. Kessler & Julian B. Roebuck,

Snitch, in Encyclopedia

of American Prisons (Marilyn D.

McShane & Frank D. Williams III eds.,

1996) ...........................................................................

La. Dep’t of Pub. Safety & Corr.,

Administrative Remedy

Procedure/Disciplinary Process

Administrative Remedy Procedure (July

10, 2013), http://bit.ly/2ktgX6S ...............................

Mass. Dep’t of Corr., Inmate Grievances

(May 5, 2017), http://bit.ly/2Bviy3o ........................

Md. Dep’t of Pub. Safety & Corr. Servs.,

Informal Resolution Procedure

(Apr. 1, 1993), http://bit.ly/2BniWUP ....................

Me. Dep’t of Corr., Prisoner Grievance

Process, General (Jan. 13, 2003, rev. Aug.

15, 2012), http://bit.ly/2yTQ9RL .............................

Mich. Dep’t of Corr., Prisoner/Parolee

Grievances (July 9, 2007),

http://bit.ly/2kHq5nT ...............................................

Minn. Dep’t of Corr., Grievance Procedure

(Oct. 17, 2017), http://bit.ly/2yTmCYi ....................

Miss. Dep’t of Corr., Grievances,

http://bit.ly/2CzEKIZ ..............................................

Mo. Dep’t of Corr., D5-3.2 Corr., D5-3.2

Offender Grievance (Jan. 2, 2009),

http://bit.ly/ 2BIVm25 ..............................................

Mont. Dep’t of Corr., Inmate Grievance

Program (Apr. 1, 1997, rev. Feb. 27, 2013),

http://bit.ly/2BFJzkM ..............................................

TABLE OF AUTHORITIES—Continued

Page(s)

N.C. Dep’t of Pub. Safety, Administrative

Remedy Procedure (Aug. 1, 2013),

http://bit.ly/2AXBqHr ..............................................

N.D. Dep’t of Corr. & Rehab.,

Inmate Handbook (Feb. 2015)

http://bit.ly/2BIWIMz; .............................................

Neb. Dep’t of Corr. Servs., Inmate Rule

Book, http://bit.ly/2kHlq5e ......................................

Nev. Dep’t of Corr., Inmate Grievance

Procedure AR740.04-.05 (Mar. 7, 2017),

http://bit.ly/2CW85OO .............................................

N.J. Dep’t of Corr., Inmate Handbook (2014),

http://bit.ly/2kQ6kL7 ...............................................

N.M. Corr. Dep’t, Inmate Grievances (Sept.

1, 1990, rev. July 12, 2017),

http://bit.ly/2CzygKd; ..............................................

N.Y. State Corr. & Cmty. Supervision,

Inmate Grievance Program (Jan. 20,

2016), http://on.ny.gov/2Bvt2jg...............................

Okla. Dep’t of Corr., Inmate/Offender

Grievance Process (Oct. 11, 2005),

http://bit.ly/2DgFIen ...............................................

Pa. Dep’t of Corr., Inmate Grievance System

(May 1, 2015), http://bit.ly/2oYX1xF .....................

Antonieta Pimienta, Note, Overcoming

Administrative Silence in Prisoner

Litigation: Grievance Specificity and the

“Object Intelligibly” Standard,

114 Colum. L. Rev. 1209 (2014) ..............................

R.I. Dep’t of Corr., Inmate Handbook (May

2007), http://bit.ly/2AVTNMK ................................

xii

TABLE OF AUTHORITIES—Continued

Page(s)

James E. Robertson, A Clean Heart and an

Empty Head: The Supreme Court and

Sexual Terrorism in Prison,

81 N.C. L. Rev. 433 (2003) .......................................

James E. Robertson, “One of the Dirty

Secrets of American Corrections”:

Retaliation, Surplus Power, and

Whistleblowing Inmates, 42 U. Mich. J.L.

Reform 611 (2009) ....................................................

Jeffrey Ian Ross, Deconstructing

Correctional Officer Deviance: Toward

Typologies of Actions and Controls,

38 Crim. Just. Rev. 110 (2013) ................................ 7, 10

S.C. Dep’t of Corr., Inmate Grievance

System (May 12, 2014),

http://bit.ly/2Dgxp2l .................................................

S.D. Dep’t of Corr., Administrative Remedy

for Inmates (Oct. 19, 2017),

http://bit.ly/2BG1cDx ...............................................

Tenn. Dep’t of Corr., Inmate Grievance

Procedures (Oct. 1, 2012),

http://bit.ly/2kusS4B ................................................

Tex. Dep’t of Criminal Justice, Offender

Grievance Operations Manual

(Jan. 2012), http://bit.ly/2BTrJ0a ...........................

Va. Dep’t of Corr., Virginia Department of

Corrections Offender Grievance Procedure

Notification (July 1, 2016),

http://bit.ly/2yUF82K ............................................. 4, 14

Vt. Dep’t of Corr., Offender Grievance

System for Field and Facilities

(Jan. 1, 2007), http://bit.ly/2keT7Mi .......................

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Wash. State Dep’t of Corr., Grievance

Hearings Program, http://bit.ly/2ke0hAr.............

Wyo. Dep’t of Corr., Inmate Communication

and Grievance Procedure (Dec. 15, 2012),

http://bit.ly/2BNCpxF .............................................

INTEREST OF AMICI CURIAE1

Amici are several of the Nation’s leading prisoners’

rights organizations. Each has substantial experience

with prisoner civil rights claims, including retaliation

claims.

The Florida Justice Institute, Inc. (“FJI”) is a private,

not-for-profit public interest law firm founded in 1978 by

leaders of the private bar to, in part, represent institutionalized persons in prisons and jails to improve conditions of confinement. It is primarily funded by the Florida Bar Foundation and attorneys’ fees recovered in meritorious cases. FJI accepts only those cases which either

involve very significant injury to a single inmate or

which, if successful, will benefit large numbers of inmates. FJI frequently seeks prospective injunctive relief

on behalf of its clients, and often in the First Amendment

context. FJI has participated as amicus curiae in a variety of cases in state and federal courts, including this

Court.

The Human Rights Defense Center (“HRDC”) is a

not-for-profit charitable corporation headquartered in

Florida that advocates for the human rights of people

held in state and federal prisons, local jails, immigration

detention centers, civil commitment facilities, Bureau of

Indian Affairs jails, juvenile facilities, and military prisons. HRDC’s advocacy efforts include publishing two

monthly publications: Prison Legal News, which covers

national and international news and litigation concerning

No counsel for a party authored this brief in whole or in part; no

such counsel or party made a monetary contribution intended to

fund the preparation or submission of the brief; and no person other

than amici, their members, and their counsel made such a contribution. The parties’ letters consenting to the filing of this brief upon

timely notice have been filed with the Clerk.

prisons and jails, and Criminal Legal News, which focuses on criminal law and procedure, as well as policing issues. HRDC also publishes and distributes self-help reference books for prisoners and litigates in state and federal courts on prisoner rights issues, including wrongful

death, public records access, class actions, and § 1983 civil

rights litigation concerning the First Amendment rights

of prisoners.

The Uptown People’s Law Center (“UPLC”) is a notfor-profit legal clinic located in Chicago. UPLC has represented Illinois prisoners in civil rights cases relating to

their conditions of confinement for over 35 years. UPLC

is currently involved in seven pending class action cases

relating to the treatment of Illinois prisoners and parolees. UPLC receives over 100 letters from prisoners every week and provides advice and referrals to hundreds of

Illinois prisoners every year—many of whom complain of

retaliation against them for filing grievances in an attempt to exhaust their administrative remedies. Alan

Mills, Executive Director of UPLC, assists in the training and support of attorneys appointed to represent prisoners by the District Courts for the Northern and Southern Districts of Illinois.

The Washington Lawyers’ Committee for Civil Rights

and Urban Affairs (“WLC”) is a not-for-profit civil rights

organization established in 1968 to help eradicate discrimination and poverty by enforcing civil rights laws and

constitutional provisions through litigation and other

means. In furtherance of this mission, WLC has a dedicated D.C. Prisoners’ Rights Project, established in 2006,

which advocates for the humane treatment and dignity of

all persons convicted of or charged with a criminal offense under D.C. law, and represents prisoners in litigation across the country. WLC has extensive experience

in advocating and litigating on behalf of prisoners who

file grievances, as they are required to do under the Prison Litigation Reform Act of 1995, and has a strong interest in ensuring that prisoners have effective access to

grievance processes without retaliation.

STATEMENT

Mr. Snodgrass’s petition raises two issues of significant importance to amici and their constituents:

(1) “Whether the First Amendment protects the speech

of a prisoner who tells an officer that she intends to file a

grievance regarding the officer’s misconduct,” and

(2) “Whether labeling a prisoner a ‘snitch’ in a prison setting constitutes an adverse action for purposes of a First

Amendment retaliation claim.” Pet. i.

I. LEGAL FRAMEWORK

Under the Prison Litigation Reform Act of 1995

(“PLRA”), 42 U.S.C. § 1997e et seq., prisoners must exhaust their administrative remedies before filing § 1983

suits against corrections officers. Typically, administrative exhaustion requires prisoners to file formal grievances against corrections officers. All but a few States

require prisoners to attempt to informally resolve their

disputes before filing formal grievances.

A. The Prison Litigation Reform Act of 1995

A “centerpiece” of the PLRA “is an ‘invigorated’ exhaustion provision.” Woodford v. Ngo, 548 U.S. 81, 84

(2006). Section 1997e(a) of that statute provides that

“[n]o action shall be brought with respect to prison conditions under section 1983 * * * by a prisoner confined in

any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.”

42 U.S.C. § 1997e(a).

Compliance with the PLRA’s exhaustion requirement

is “mandatory.” Woodford, 548 U.S. at 85; see, e.g.,

Booth v. Churner, 532 U.S. 731, 739 (2001) (exhaustion

required where administrative process could not grant

relief sought). If administrative remedies are “available,”

“the PLRA’s text suggests no limits on an inmate’s obligation to exhaust—irrespective of any ‘special circumstances. ’ ” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016).

Thus, to the extent a grievance process is available, prisoners must proceed through it fully before seeking relief

in the courts.

B. Grievance Processes in State Prisons

State prison grievance processes typically require

prisoners to complete several steps before administratively exhausting their claims: (1) attempting informal

resolution; (2) filing a formal grievance; (3) filing an appeal; and, in some prison systems, (4) filing a second level

of appeal. See Antonieta Pimienta, Note, Overcoming

Administrative Silence in Prisoner Litigation: Grievance Specificity and the “Object Intelligibly” Standard,

114 Colum. L. Rev. 1209, 1211 n.12 (2014).

The Virginia Department of Corrections, for example,

permits prisoners to file suits on “[g]rievable issues,” including, as relevant here, “[a]ctions of individual employees * * * which affect the grievant personally, including

any denial of access to the grievance procedure,” and

“[r]eprisals against the grievant for filing a grievance or

appeal.” Va. Dep’t of Corr., Virginia Department of Corrections Offender Grievance Procedure Notification

(July 1, 2016), http://bit.ly/2yUF82K. A prisoner who has

suffered a “grievable issue” must first attempt “to informally resolve the issue prior to filing a regular grievance”

and that attempt must be documented. Ibid. An informal resolution attempt could consist of, for example,

speaking to the offending corrections officer and informing the officer of the prisoner’s intent to file a grievance

unless the misconduct ceases or other corrective

measures are taken.

C. First Amendment Retaliation Claims

It is well established that “the First Amendment bars

retaliation for protected speech.” Crawford-El v. Britton, 523 U.S. 574, 592 (1998). That is no less true in prisons. After all, “prisoners do not shed all constitutional

rights at the prison gate.” Sandin v. Conner, 515 U.S.

472, 485 (1995). The Courts of Appeals thus unanimously

permit prisoners to bring § 1983 claims against corrections officers for retaliating against them for exercising

their First Amendment rights.

“To prove a First Amendment retaliation claim under

Section 1983, a prisoner must show * * * ‘(1) that the

speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and

(3) that there was a causal connection between the protected speech and the adverse action.’ ” Espinal v.

Goord, 558 F.3d 119, 128 (2d Cir. 2009); see Pet. 2 n.1

(collecting cases). This case concerns only the first and

second prongs of that test.

II. PROCEEDINGS BELOW

This case arises out of threats of physical and sexual

violence by a corrections officer against a prisoner, that

prisoner’s statements that he intended to pursue a grievance regarding the officer’s harassment, and the officer’s

retaliatory response—labeling the prisoner a “snitch” in

front of other prisoners.

On August 20, 2015, Officer Messer, a corrections officer at Red Onion State Prison, where Mr. Snodgrass is

housed, approached Mr. Snodgrass’s cell “ ‘in an aggres-

sive manner and began to verbally harass and threaten

him with sexual comments.’ ” Pet. App. 5a-6a (quoting

Complaint) (alterations omitted). Officer Messer threatened: “ ‘I’m going to knock you the fuck out and fuck you

in the ass to wake you back up.’ ” Id. at 27a. Officer

Messer then ordered Mr. Snodgrass to “ ‘strip,’ ” and to

“ ‘pull your pants down so I can see that black [a]ss.’ ”

Ibid. Mr. Snodgrass responded by stating that he intended to report Officer Messer to the authorities by

filing a Prison Rape Elimination Act complaint—i.e., a

formal grievance—against him. Id. at 28a. In response,

and in earshot of other prisoners, Officer Messer yelled

“ ‘that’s cause you’re a Fuck’n SNITCH.’ ” Ibid. Other

prisoners averred that they heard Officer Messer label

Mr. Snodgrass a snitch. Id. at 7a.

Mr. Snodgrass made good on his statement, ultimately

filing a Prison Rape Elimination Act complaint against

Officer Messer. Pet App. 8a. No relief was granted because the investigating officers claimed they were unable

to verify Officer Messer’s threats. Ibid.

After exhausting his administrative remedies, Mr.

Snodgrass filed a pro se § 1983 complaint against Officer

Messer and other individuals. Pet. App. 8a. Mr. Snodgrass alleged, as relevant here, that Officer Messer “retaliated against [him] for exercising his free speech

rights” to state his intent to file a grievance. Id. at 9a.

The District Court for the Western District of Virginia

(Dillon, J.) dismissed Mr. Snodgrass’s complaint, finding

that Mr. Snodgrass’s statements regarding his intent to

file a grievance were “ ‘mere expressions of dissatisfaction.’ ” Pet. App. 14a. The district court also found that

Officer Messer’s labeling Mr. Snodgrass a snitch in front

of other prisoners was not an adverse action because it

was nothing “more than [an] undesirable comment[ ]

* * * and did not impede his exercise of his right to seek

redress.” Id. at 14a-15a.

In a single paragraph, the Fourth Circuit affirmed

“for the reasons stated by the district court.” Pet. App.

2a.

SUMMARY OF ARGUMENT

I. It is well established that the First Amendment

protects prisoners who actually file grievances against

corrections officers. An officer thus cannot retaliate

against a prisoner for filing a grievance. But the Fourth

Circuit held that the First Amendment does not protect

prisoners who state that they intend to file grievances.

That ruling not only creates a division among the Circuits, it threatens to significantly curtail prisoners’ access

to the courts. Retaliating against a prisoner for voicing

her intent to do something that is not only allowed, but is

required by statute if she wants to have her claims heard

in court—i.e., filing a formal grievance—should be just as

unlawful as retaliating against a prisoner for actually filing that grievance in the first place.

Corrections officers control nearly all aspects of prison

life. Due to the significant power they wield, opportunities abound for corrections officers to abuse or retaliate

against prisoners. And they often take advantage of

those opportunities: issuing spurious disciplinary charges, tossing prisoners’ cells, denying them privileges,

keeping prisoners in segregated housing units, or, in the

worst cases, physically or sexually assaulting them. See

John J. Gibbons & Nicholas De B. Katzenbach, Confronting Confinement: A Report of the Commission on Safety

and Abuse in America’s Prisons, 22 Wash. U. J.L. &

Pol’y 385, 515 (2006); Jeffrey Ian Ross, Deconstructing

Correctional Officer Deviance: Toward Typologies of Actions and Controls, 38 Crim. Just. Rev. 110, 114 (2013).

Prisoners’ only recourse is to follow the prison grievance

system and, if that fails, to seek relief in court.

The catch-22 of the Fourth Circuit’s ruling is that the

Federal Bureau of Prisons and all but a small handful of

States require that prisoners attempt to resolve their

complaints against corrections officers “informally” before they can file a formal grievance. The prisoner thus

has a right to file the grievance, but, according to the

Fourth Circuit, no right to tell the officer as much to informally resolve the issue—even though the prisoner

must communicate that to the officer, either orally or in

writing, before filing the formal grievance. This backwards interpretation of the First Amendment leaves

prisoners defenseless to retaliation from corrections officers seeking to deter them from filing grievances.

II. The Fourth Circuit’s ruling that a corrections officer labeling a prisoner a “snitch” in earshot of other

prisoners does not constitute an adverse action reflects a

real misunderstanding of the significance the “snitch”

label carries in prisons.

Snitches “occupy the lowest rung in the prison hierarchy.” Dale v. Poston, 548 F.3d 563, 571 (7th Cir. 2008).

As a result, snitches are commonly the victims of physical, sexual, and other abuse. See Fed. Judicial Ctr., Survey of Harm to Cooperators: Final Report 8 (2016),

http://bit.ly/2kg36Ry. Stories of prisoners who were labeled “snitches” being tortured and killed are all too

common. In that context, identifying a prisoner as a

snitch is the equivalent of marking that prisoner as a target for violence. See Adames v. Perez, 331 F.3d 508, 515

(5th Cir. 2003).

ARGUMENT

I. PROTECTING PRISONERS’ STATEMENTS OF INTENT

TO FILE GRIEVANCES IS ESSENTIAL TO PROTECT

THEIR ACCESS TO THE COURTS

“Prison walls do not form a barrier separating prison

inmates from the protections of the Constitution.”

Turner v. Safley, 482 U.S. 78, 84 (1987). Prisoners thus

“retain the constitutional right to petition the government for the redress of grievances.” Ibid. Because

“[p]risoners, like non-prisoners, have a constitutional

right of access to the courts and to petition the government for the redress of grievances,” it is undisputed that

“prison officials may not retaliate against prisoners for

the exercise of that right.” Colon v. Coughlin, 58 F.3d

865, 872 (2d Cir. 1995). But the circuits are split regarding whether prison officials may retaliate against prisoners who tell them they intend to exercise that right. Recognizing that those statements are also protected speech

is essential to protect prisoners’ access to grievance processes and, ultimately, to the courts.

A. Corrections Officers Frequently Deter Prisoners

from Filing Grievances

There is “ ‘a recurrent pattern in American prisons of

threats and retaliation against prisoners who file grievances and complaints.’ ” John J. Gibbons & Nicholas De

B. Katzenbach, Confronting Confinement: A Report of

the Commission on Safety and Abuse in America’s Prisons, 22 Wash. U. J.L. & Pol’y 385, 514 (2006) (quoting

John Boston, director of the Prisoners’ Rights Project of

the New York City Legal Aid Society). While those

threats sometimes come from fellow prisoners, corrections officers commonly retaliate against prisoners who

have filed, or intend to file, grievances.

“[A] survey of prisoners by the Correctional Association of New York suggest[s] that more than half of prisoners who file grievances report experiencing retaliation

for making a complaint against staff.” Gibbons & Katzenbach, supra, at 515 (emphasis added). In another

study, 61% of prisoners reported that their concerns

about retaliation by corrections officers deterred them

from filing grievances. Kitty Calavita & Valerie Jenness,

Appealing to Justice: Prisoner Grievances, Rights, and

Carceral Logic 68 (2015).

Corrections officers “have a considerable amount of

power while on the job,” and, as a result, myriad ways in

which they can deter prisoners from filing grievances.

Jeffrey Ian Ross, Deconstructing Correctional Officer

Deviance: Toward Typologies of Actions and Controls,

38 Crim. Just. Rev. 110, 114 (2013). “They can write up

(submit negative reports about) inmates they do not like,

or they can humiliate convicts in front of others.” Ibid.

They can also engage in “[o]ther kinds of abuse,” including “confiscating inmates’ possessions, destroying their

belongings, playing with the thermostat settings, arbitrarily denying privileges, placing inmates who hate each

other in the same cell, repeatedly tossing (searching)

cells, repetitively strip-searching inmates, and frequently

transferring inmates to different correctional facilities.”

Ibid. Other retaliatory acts include “segregation for

longer periods of time, * * * physical retribution, * * *

and should the grievance be denied, * * * discipline for

filing a false grievance.” Gibbons & Katzenbach, supra,

at 515. As Mr. Snodgrass experienced first-hand, corrections officers often subject prisoners to needless strip

searches as a “form of intimidation and violence.” Ross,

supra, at 115.

Sexual harassment and abuse, specifically, are very

common ways corrections officers deter prisoners from

filing grievances and retaliate against those who do. See

Cheryl Bell, et al., Rape and Sexual Misconduct in the

Prison System: Analyzing America’s Most “Open” Secrets, 18 Yale L. & Pol’y Rev. 195, 210 (1999) (“Retaliation against prisoners who report sexual abuse is all too

common and can sometimes result in prisoners having to

serve longer terms.”). One study of women prisoners in

Michigan found that, when they complained of sexual

harassment or abuse, corrections officers would “writ[e]

up disciplinary ‘tickets’ for specious violations of prison

rules or regulations”; “force a confrontation to occur in

order to create a minor violation for which [the officer]

can write a ticket”; “ask a colleague to write up a ticket,

whether for a false violation or for a minor one, so that

the retaliation cannot be traced back to [the officer]”; or

deny them “visitation rights with their children.” Ibid.

These forms of retaliation and abuse are realities of

prison life. As one prisoner explained, when a prisoner

files a grievance, corrections officers “ ‘take it out on you

one way or another * * * . They’ll get real vindictive

* * * they’ll get back at you.’ ” Calavita & Jenness, supra, at 68 (alterations in original). Another prisoner

stated: “ ‘[T]here’s always consequences.’ ” Ibid. And a

third explained, after a prisoner files a grievance, “ ‘they

transfer them somewhere and all of a sudden, their property’s missing * * * they never see it again.’ ” Ibid. Many

prisoners explained that they “often endure abuse by

guards in order not to jeopardize their release date.” Id.

at 69.

The harassing and violent acts described above are

only a few of the ways that corrections officers can deter

prisoners from exercising their constitutional rights to

file grievances and, ultimately, from seeking relief in the

courts. The Fourth Circuit’s decision—holding that a

prisoner cannot base a retaliation claim on a statement

that she intends to file a grievance—essentially provides

corrections officers carte blanche to retaliate against

prisoners who tell them they intend to file grievances.

B. Protecting Informal Resolution of Grievances Is

Essential To Provide Prisoners Access to the

Courts

There is no real dispute that filing a grievance is protected speech and that retaliation against a prisoner for

filing a grievance can violate the First Amendment. See,

e.g., Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir.

2017) (“The 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, for without those bedrock constitutional guarantees, inmates would be left with no viable

mechanism to remedy prison injustices.” (alterations and

quotation marks omitted)); Smith v. Mosley, 532 F.3d

1270, 1276 (11th Cir. 2008) (“It is an established principle

of constitutional law that an inmate is considered to be

exercising his First Amendment right of freedom of

speech when he complains to the prison’s administrators

about the conditions of his confinement.”); Pearson v.

Welborn, 471 F.3d 732, 742 (7th Cir. 2006) (“[R]etaliating

against a prisoner on the basis of his complaints about

prison conditions is unlawful.”); Davis v. Goord, 320 F.3d

346, 352-353 (2d Cir. 2003) (“[T]he filing of prison grievances is a constitutionally protected activity.”).

Like grievances, statements reflecting a prisoner’s intent to file a grievance should be protected by the First

Amendment. Those statements are an integral part of

the grievance process in most prisons because informal

resolution of grievances is a near-universal precondition

to filing a formal grievance. It is hard to imagine an informal attempt to resolve a dispute that does not at least

mention that the prisoner intends to file a grievance if

the officer’s misconduct doesn’t stop.

“Most jurisdictions’ grievance procedures begin with a

requirement that the prisoner seek ‘informal resolution.’ ” Priyah Kaul, et al., Michigan Law Prison Information Project, Prison and Jail Grievance Policies: Lessons from a Fifty-State Survey 11 (Oct. 18, 2015),

http://bit.ly/2oOVQRg.2 The Virginia Department of

All but a handful of States require an attempt at informal resolution

before a prisoner can file a grievance. See, e.g., Alaska Dep’t of

Corr. Policies & Procedures, Prisoner Grievances ¶ IV.D, at 3 (Oct.

13, 2006), http://bit.ly/2kGyOH4; Ark. Dep’t of Corr., Administrative

Directive Inmate Grievance Procedure ¶ III.A., at 1-2 (May 28,

2012), http://bit.ly/2Byu9i9; Ariz. Dep’t of Corr., Department Order:

802, Inmate Grievance Procedure ch. 802.02, at 2-3 (Dec. 12, 2013),

http://bit.ly/2oFpIQ5; Jean Casella & James Ridgeway, Prisoner

Grievances: “The System for Going Up Against the System,” Solitary Watch (Mar. 24, 2011), http://bit.ly/2CACIZp (California); Colo.

Dep’t of Corr., Grievance Procedure ¶ IV.B, at 2-3 (Dec. 15, 2012),

http://bit.ly/2B7Kvxl; Conn. Dep’t of Corr., Inmate Administrative

Remedies ¶ 6.A, at 5 (Aug. 15, 2013), http://bit.ly/2CzJ5Ml; Del. Dep’t

of Corr., Medical Grievance Process ¶ VI.A-B, at 1-2 (Nov. 7, 2004,

rev. Sept. 2, 2015), http://bit.ly/2kGqYx2 (addressing healthcarerelated grievances); D.C. Dep’t of Corr., Inmate Grievance Procedure (IGP) ¶ 19, at 11-12 (Oct. 4, 2014), http://bit.ly/2BuGrbu; Fla.

Admin. Code r. 33-103.005; Idaho Dep’t of Corr., Grievance & Informal Resolution Procedure 8 (Sept. 1, 1995), http://bit.ly/2jdXh6a;

Ill. Dep’t of Corr., DR 504 Grievance Procedures subpt. F § 504.810,

at 5 (Sept. 30, 2003), http://bit.ly/2l8Mfxs; Ind. Dep’t of Corr.,

Offender Grievance Process ¶ XIII, at 14-16 (Jan. 1, 2010),

http://bit.ly/2kdYQlB; Iowa Dep’t of Corr., Grievance Resolution

Process ¶ V.A., at 4 (Mar. 1983, rev. Jan. 2005), http://bit.ly/2z6vsCd;

Kan. Dep’t of Corr., Disciplinary Reports & Grievances (Jan. 8,

2014), http://bit.ly/2Czvncu; La. Dep’t of Pub. Safety & Corr.,

Administrative Remedy Procedure/Disciplinary Process Adminis-

Corrections, for example, which operates the facility

where Mr. Snodgrass is housed, requires that prisoners

“try to informally resolve the issue prior to filing a regular grievance.” Va. Dep’t of Corr., Offender Grievance

Procedure Notification 1 (July 1, 2016), http://bit.ly/

2yUF82K. Similarly, in Texas, prisoners “shall pursue

an informal resolution with staff, when possible, prior to

filing a formal grievance. When an attempt to informally

resolve an issue is not documented on the grievance form,

the unit grievance investigator may return the grievance

to the offender without an investigation.” Tex. Dep’t of

Criminal Justice, Offender Grievance Operations Manual 5 (Jan. 2012), http://bit.ly/2BTrJ0a. And the Federal

trative Remedy Procedure 9 (July 10, 2013), http://bit.ly/2ktgX6S;

Me. Dep’t of Corr., Prisoner Grievance Process, General 4-5

(Jan. 13, 2003, rev. Aug. 15, 2012), http://bit.ly/2yTQ9RL; Mich. Dep’t

of Corr., Prisoner/Parolee Grievances ¶ P, at 3 (July 9, 2007),

http://bit.ly/2kHq5nT; Minn. Dep’t of Corr., Grievance Procedure,

(Oct. 17, 2017), http://bit.ly/2yTmCYi; Mo. Dep’t of Corr., D5-3.2

Offender Grievance ¶ III.K, at 9-14 (Jan. 2, 2009), http://bit.ly/

2BIVm25; Neb. Dep’t of Corr. Servs., Inmate Rule Book ch. 2.005

http://bit.ly/2kHlq5e; Nev. Dep’t of Corr., Inmate Grievance Procedure AR740.04-.05, at 6-9 (Mar. 7, 2017), http://bit.ly/2CW85OO; N.J.

Dep’t of Corr., Inmate Handbook 21 (2014), http://bit.ly/2kQ6kL7;

N.D. Dep’t of Corr. & Rehab., Inmate Handbook 32 (Feb. 2015),

http://bit.ly/2BIWIMz; Ohio Admin. Code 5120-9-31(K); Okla. Dep’t

of Corr., Inmate/Offender Grievance Process ¶ IV, at 5-6 (Oct. 11,

2005), http://bit.ly/2DgFIen; R.I. Dep’t of Corr., Inmate Handbook

ch. 11, at 31 (May 2007), http://bit.ly/2AVTNMK; S.C. Dep’t of Corr.,

Inmate Grievance System ¶ 13.2 (May 12, 2014), http://bit.ly/

2Dgxp2l; S.D. Dep’t of Corr., Administrative Remedy for Inmates

¶ IV.4, at 6-7 (Oct. 19, 2017), http://bit.ly/2BG1cDx; Vt. Dep’t of

Corr., Offender Grievance System for Field and Facilities ¶ 7, at 6-7

(Jan. 1, 2007), http://bit.ly/2keT7Mi; Wash. State Dep’t of Corr.,

Grievance Hearings Program, http://bit.ly/2ke0hAr; Wyo. Dep’t of

Corr., Inmate Communication and Grievance Procedure ¶ IV.D.1,

at 8 (Dec. 15, 2012), http://bit.ly/2BNCpxF.

Bureau of Prisons permits prisoners to file “formal complaint[s]” only “[w]hen informal resolution is not successful.” Fed. Bureau of Prisons, Inmate Information

Handbook 35 (Nov. 2012), http://bit.ly/2kexADx.3

Other jurisdictions merely “encourage[ ] ” prisoners to

attempt to resolve issues informally prior to filing a formal grievance. See, e.g., Miss. Dep’t of Corr., Grievances, http://bit.ly/2CzEKIZ. However, that may be a distinction without a difference. In New York, for example,

informal resolution attempts are not required, but, nonetheless, “the failure of an inmate to attempt to resolve a

problem on his or her own may result in the dismissal

and closing of a grievance.” N.Y. State Corr. & Cmty.

Supervision, Inmate Grievance Program § 701.3(a), at 2

(Jan. 20, 2016), http://on.ny.gov/2Bvt2jg.4

Some jurisdictions recognize exceptions for emergency grievances,

permitting the prisoner to file a formal grievance without attempting

informal resolution. See, e.g., Mass. Dep’t of Corr., Inmate Grievances § 491.18(3), at 13 (May 5, 2017), http://bit.ly/2Bviy3o; Mont.

Dep’t of Corr., Inmate Grievance Program ¶ III.L.1, at 6 (Apr. 1,

1997, rev. Feb. 27, 2013), http://bit.ly/2BFJzkM. And others exempt

Prison Rape Elimination Act complaints or those regarding physical

or sexual abuse. See, e.g., N.M. Corr. Dep’t, Inmate Grievances CD150500, ¶ F, at 6 (Sept. 1, 1990, rev. July 12, 2017), http://bit.ly/

2CzygKd; Pa. Dep’t of Corr., Inmate Grievance System § 1.A.3, at 11 (May 1, 2015), http://bit.ly/2oYX1xF.

See also, e.g., Ga. Dep’t of Corr., Statewide Grievance Procedure

¶ VI.A.4, at 4 (Dec. 10, 2012), http://bit.ly/2BFhSbN; Haw. Dep’t of

Pub. Safety, Informal Resolution Procedure ¶ 7.0, at 4 (July 1, 2015),

http://bit.ly/2CZmvOr; Md. Dep’t of Pub. Safety & Corr. Servs.,

Informal Resolution Procedure DCD 185-203 (Apr. 1, 1993),

http://bit.ly/2BniWUP; N.C. Dep’t of Pub. Safety, Administrative

Remedy Procedure ch. G. § .0301(a), at 1 (Aug. 1, 2013), http://bit.ly/

2AXBqHr; Or. Admin. R. 291-109-0100(3)(a); Tenn. Dep’t of Corr.,

Inmate Grievance Procedures 6 (Oct. 1, 2012), http://bit.ly/2kusS4B.

The Fourth Circuit’s holding that the First Amendment does not prohibit retaliation against prisoners for

stating their intent to file a grievance—even though the

First Amendment prohibits retaliation for actually filing

that grievance—permits an end-run around prisoners’

well-recognized “constitutional right to petition the government for the redress of grievances.” Turner, 482 U.S.

at 84. As the Third Circuit recognized in ruling on this

issue, there is no “substantive distinction between retaliation for informing prison officials of an intent to file a

grievance or requesting the necessary forms to do so on

the one hand, and actually filing such a grievance on the

other.” Watson v. Rozum, 834 F.3d 417, 423 (3d Cir.

2016), cert. denied, 137 S. Ct. 2295 (2017); see Pet. 6-10

(weight of authority agreeing with the Third Circuit).

Both are steps in the process of administratively exhausting claims against corrections officers. And both should

be protected by the First Amendment.

In practice, the Fourth Circuit’s ruling incentivizes

corrections officers to retaliate against prisoners before

they can file formal grievances. For all but a small handful of prisoners, attempting informal resolution of grievances is the first step to seeking redress in the courts for

violations of their civil rights. A prisoner who faces retaliation for expressing her intent to file a grievance may

ultimately never file it for fear of further reprisals. And,

in almost all jurisdictions, unless a prisoner files a grievance, she cannot bring a claim in the courts. “[W]hat is at

stake is a prisoner’s right of access to an existing grievance procedure without fear of being subjected to a retaliatory disciplinary action. * * * [I]f such disciplinary actions were allowed, the purpose of the grievance procedure—to provide an administrative forum for the airing

of prisoner complaints—would be defeated.” Sprouse v.

Babcock, 870 F.2d 450, 452 (8th Cir. 1989).

II. THE “SNITCH” LABEL DETERS PRISONERS FROM

FILING GRIEVANCES AND MARKS THEM AS TARGETS

FOR VIOLENCE

The majority of Circuits agree that being labeled a

snitch in prison in front of other prisoners is an adverse

action for purposes of a First Amendment retaliation

claim. Pet. 12. However, the Fourth Circuit in the decision below, and the Second Circuit before it, reached the

opposite conclusion, in decisions that completely misunderstand the violent consequences that await snitches in

prisons. Being labeled a “snitch” places a target on a

prisoner’s back: To “label an inmate a snitch is to unreasonably subject that inmate to the threat of a substantial

risk of serious harm at the hands of his fellow inmates.”

Irving v. Dormire, 519 F.3d 441, 451 (8th Cir. 2008).

Prisoners who are labeled snitches in prison are routinely beaten and killed. They are the lowest members of

the prison hierarchy. Because being labeled a snitch can

have dire consequences, one of the most effective ways a

corrections officer can deter a prisoner from filing a

grievance is by threatening to label—or actually labeling—that prisoner a “snitch.”

A. The “Snitch” Label Has a Unique Connotation in

Prisons

“[S]nitch is a negative slang term offenders use to describe an informant.” United States v. Galaviz, 687 F.3d

1042, 1044 n.1 (8th Cir. 2012) (Smith, J., dissenting). It is

a term that represents a code of silence, one that runs

across cultures “from organized crime to the population

at large.” Jeremy Kahn, The Story of a Snitch, The

Atlantic (Apr. 2007).

“Snitch” is not just a label; it is a call to action. “It’s no

secret that jailhouse thugs retaliate against other inmates who are considered snitches.” Joe Davidson, At

Prison Bureau, a Fear To Speak Up, Wash. Post (July

14, 2011).

“The inmate code condemns snitching.

Indeed, as an act of betrayal, it merits assault, sodomy,

and even murder.” James E. Robertson, A Clean Heart

and an Empty Head: The Supreme Court and Sexual

Terrorism in Prison, 81 N.C. L. Rev. 433, 461 (2003).

Snitches are “hated and despised * * * and may be the

object of violent reprisal.” Raymond G. Kessler & Julian

B. Roebuck, Snitch, in Encyclopedia of American Prisons 449, 449 (Marilyn D. McShane & Frank D. Williams

III eds., 1996). In prison, snitches “occupy the lowest

rung in the prison hierarchy.” Dale v. Poston, 548 F.3d

563, 571 (7th Cir. 2008); see also Human Rights Watch,

No Escape: Male Rape in U.S. Prisons, http://bit.ly/

2kJETm1 (similar).

Corrections officers are well aware of the violent consequences that labeling a prisoner a snitch can portend.

In Northington v. Marin, 102 F.3d 1564 (10th Cir. 1996),

for example, a prisoner brought a successful § 1983 claim

against a corrections officer who “spread a rumor among

inmates that [the prisoner] was a snitch,” which resulted

in the prisoner being “assaulted several times by inmates

who accused him of being a snitch.” Id. at 1567. The officer himself “testified that an inmate labeled a snitch

would most likely be beaten.” Ibid.

Indeed, a similar attitude often prevails among corrections officers. A central “tenet[ ] of the correctional officer code [is] ‘don’t rat.’ ” James E. Robertson, “One of

the Dirty Secrets of American Corrections”: Retaliation,

Surplus Power, and Whistleblowing Inmates, 42 U.

Mich. J.L. Reform 611, 618-619 (2009). A recent study by

the Equal Employment Opportunity Commission found

that there is “rampant retaliation” against officers who

snitch on their colleagues. Davidson, supra. Many

guards “bully and ostracize any guard who plays by the

rules; these strong-arm tactics organize and protect

guards who beat inmates at whim and then lie about their

activities to their superiors, criminal investigators, and

judges in any suits that the prisoners may file.” Fairley

v. Fermaint, 482 F.3d 897, 899 (7th Cir. 2007).

B. Snitches Are Often Killed, Beaten, or Otherwise

Retaliated Against in Prisons

Incidents of snitches being abused, assaulted, or raped

are all too common. “ ‘[Y]ou can’t snitch and live,’ ” one

prisoner stated. Jessica A. Hinman, Sexual Assault of

Male Inmates: Prevalence, Characteristics, and Inmate

Perceptions 32 (Dec. 5, 2008), http://bit.ly/2Btz6Zz.

Many prisoners do not report rape because they fear being labeled “snitches.” Ibid. In one study, fear of reprisal against snitches was the most common response to the

question of why, when prisoners must choose between

reporting sexual assault to authorities (i.e., snitching) or

suffering rape in silence, they choose silence. Ibid.

One so-called snitch, Ricky Martin, was found lying in

a pool of his own blood, naked from the waist down, below

a wall smeared with bloody handprints. Julie K. Brown,

Was Killing Behind Bars a Set-Up?, Miami Herald (Jan.

10, 2015). Before he was beaten to death, Mr. Martin had

“filed a grievance asking the department’s inspector general to place him under protection because his life was

being threatened” due to the fact that “he was labeled a

‘snitch’ because he had reported to prison officials that

guards * * * had been running a ‘fight club’ ” in the prison

cafeteria. Ibid. As Mr. Martin explained: “The corrections officers whose names are in the [grievance], ‘told

me that I was a snitch and told inmates about the incident; now I have inmates and officers after me.’ ” Ibid.

Shortly after Mr. Martin filed the grievance, the Florida

Department of Corrections made one of the selfproclaimed “ ‘most vicious and violent prisoners in the

entire state of Florida’ ” Mr. Martin’s roommate. Ibid.

That new roommate beat Mr. Martin to death. Ibid.

Mr. Martin’s story is not an anomaly. Guards often

enlist prisoners to violently punish fellow prisoners. For

example, among other things, a “snitch game” played by

corrections officers ignited a notorious prison riot in New

Mexico. See generally Jeff Bingman, N.M. Att’y Gen.,

Report of the Attorney General on the February 2 and 3,

1980 Riot at the Penitentiary of New Mexico (June 1980),

http://bit.ly/2Bt7YtZ. The “snitch game” was “a system

that use[d] the threat of disciplinary action to obtain information” and to exact retribution. Id. at 25. Officers

would label prisoners snitches “to get even.” Samuel Gilbert, How a Bloody Prison Massacre Became a Tourist

Hotspot, The Daily Beast (Aug. 10, 2015).

The 36-hour riot left 33 prisoners dead, with snitches

receiving the worst treatment. Bingman, supra, at 43.

When the rioters broke into the informants’ cellblock,

they shouted: “ ‘Kill the snitches.’ ” Id. at 26. The rioters

“threw flammable liquids into locked cells and onto inmates marked for destruction, and then ignited them.”

Ibid. Once the cells opened, “the rampaging inmates

dragged many of their * * * victims out and stabbed, tortured, bludgeoned, burned, hanged and hacked them

apart.” Ibid. Snitches were “thrown from upstairs tiers

to the basement floor.” Ibid. In 2017, hatchet marks still

mar that floor. Gilbert, supra.

Today, violence against snitches remains widespread.

A 2015 survey of federal judges identified nearly 600 in-

stances of snitches being threatened, wounded, or killed.

Fed. Judicial Ctr., Survey of Harm to Cooperators: Final

Report 8 (2016), http://bit.ly/2kg36Ry. The same survey

revealed that sixty-one snitches had been murdered. Jacob Gershman, Why Life for ‘Snitches’ Has Never Been

More Dangerous, Wall St. J. (June 20, 2017). As one

judge testified, the urgency and seriousness of the problem cannot be ignored: “ ‘While this is not Colombia, it is

really, really bad.’ ” Fed. Judicial Ctr., supra, at 8.

Those numbers likely understate the amount of violence snitches experience in prison. Violence in prisons

often goes unreported; indeed, the very purpose of violence against snitches is to deter them from reporting

misconduct in the first place. That may be one reason

why guards choose to label prisoners “snitches” and let

the violence be meted out by other prisoners.

Because of the violence that attends the “snitch” label,

a guard identifying a prisoner as a snitch is by definition

an adverse action; it is the equivalent of marking that

prisoner as a target for violence. Court after court has

recognized as much. See, e.g., Adames v. Perez, 331 F.3d

508, 515 (5th Cir. 2003) (snitch label would “create a risk

to an inmate’s health or safety”); Benefield v. McDowall,

241 F.3d 1267, 1271 (10th Cir. 2001) (“[L]abeling an inmate a snitch * * * constitutes deliberate indifference to

the safety of that inmate.”); Reece v. Groose, 60 F.3d 487,

488 (8th Cir. 1995) (snitch “at substantial risk of injury”);

Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th

Cir. 1989) (labeling an inmate a snitch in retaliation for

filing a grievance may give rise to “a claim * * * for violation of [the] right to be protected from violence while in

custody” and the “right of access to the courts”); Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir. 1984) (per

curiam) (“snitch” label exposed prisoner to threat of

assault).

The courts that have reached a different conclusion,

including the Fourth Circuit, have simply failed to recognize the realities of prison life and the violence that

awaits prisoners who are labeled “snitches.”

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

LAUREN M. WEINSTEIN

Counsel of Record

ROBERT K. KRY

BENJAMIN T. SIROLLY

MOLOLAMKEN LLP

The Watergate, Suite 660

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

lweinstein@mololamken.com

Counsel for Amici Curiae

DECEMBER 2017

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.