Petition for Writ of Certiorari — D. Dahne, Petitioner v. Thomas W. S. Richey

Supreme Court briefDec 12, 2018

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No. ___

In the Supreme Court of the United States

DENNIS DAHNE,

PETITIONER,

THOMAS RICHEY,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT W. FERGUSON

Attorney General

NOAH G. PURCELL

Solicitor General

Counsel of Record

JAY D. GECK

Deputy Solicitor General

HALEY C. BEACH

Assistant Attorney General

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

noah.purcell@atg.wa.gov

QUESTION PRESENTED

Inmates in state and federal prisons file

hundreds of thousands of grievances every year, and

grievance programs peacefully resolve countless

disputes at an administrative level, without litigation.

To make these grievance programs more effective and

avoid needless tension between inmates and officers,

most states and the federal government prohibit

abusive, disrespectful, or threatening language in

grievances. But the Ninth Circuit has held, in a series

of cases, that such restrictions violate the First

Amendment. Based on this conclusion, the Ninth

Circuit here held that a Washington correctional

officer violated an inmate’s clearly established First

Amendment rights when he directed the inmate to

omit such content. Five other circuits and many state

courts have held that similar restrictions are

constitutional. The question presented is:

Do prison inmates have a First Amendment

right to include threatening, abusive, and irrelevant

language in grievances?

PARTIES

Petitioner Dennis Dahne was the defendant in

the district court and appellant in the court of appeals.

He is a Grievance Coordinator for the Washington

Department of Corrections at the Stafford Creek

Corrections Center.

Respondent Thomas W.S. Richey was the

plaintiff at the district court and appellee in the court

of appeals. He is an inmate in the custody of the

Washington Department of Corrections.

iii

TABLE OF CONTENTS

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 3

JURISDICTION ......................................................... 3

CONSTITUTIONAL PROVISIONS AND

STATUTES ................................................................. 3

STATEMENT ............................................................. 4

Washington’s Prison Grievance

Program Peacefully Resolves Conflicts

and Reduces Inmate Litigation ....................... 4

Inmate Richey Submitted a Grievance

with Gratuitous Threatening and

Abusive Language and Refused to

Rewrite it, so Officer Dahne Closed

the Grievance ................................................... 9

Proceedings Below ......................................... 11

The district court dismissed

Richey’s complaint, but the Ninth

Circuit reversed and remanded .......... 11

On remand, the District Court

ruled that Officer Dahne

violated Richey’s right to petition

and denied him qualified immunity ... 12

The Ninth Circuit holds that

inmates have a clearly established

right to include abusive language

in grievances ....................................... 13

THE PETITION SHOULD BE GRANTED ............ 16

The Ninth Circuit’s Analysis of Inmate

First Amendment Rights Conflicts with

Multiple Circuit and State Courts ................ 17

The Ninth Circuit’s entrenched

rule, applied here, is that

inmates have a right to include

irrelevant, disrespectful

language in grievances ....................... 18

Five circuits and many state

courts hold that inmates have

no first amendment right to

include irrelevant, disrespectful

language in grievances ....................... 20

The Ninth Circuit’s Cursory Denial of

Qualified Immunity Conflicts with

Numerous Decisions of this Court ................ 26

Qualified immunity protects

government officials from

liability unless their actions

violate clearly established rights ....... 26

The Ninth Circuit decision flouts

this Court’s repeated direction to

rely on precedent that clearly

addresses the conduct of an official.... 27

The ruling below conflicts with

this Court’s cases holding that

rights are not clearly established

by a circuit ruling in conflict

with other circuits ............................... 29

The Question Presented is Important and the

Ninth Circuit’s Decision is Wrong ................ 31

This Case is an Ideal Vehicle to

Address the Question Presented,

Which Needs No Further Percolation ........... 37

CONCLUSION ......................................................... 38

APPENDIX

Order (Sept. 13, 2018),

Richey v. Dahne,

United States Court of Appeals for

the Ninth Circuit, No. 17-35032 ............................... 1a

Memorandum (Apr. 25, 2018),

Richey v. Dahne,

United States Court of Appeals for

the Ninth Circuit, No. 17-35032 ............................... 2a

Order Adopting in Part and Modifying in

Part Report and Recommendation, Granting

in Part and Denying in Part Plaintiff ’s

Motion for Partial Summary Judgment, and

Denying Defendant’s Motion for Summary

Judgment (Dec. 15, 2016),

Richey v. Dahne,

United States District Court, W.D. Wash.,

No. 3:12-cv-05060-BHS ............................................. 8a

Order Adopting in Part and Modifying in

Part Report and Recommendation, Denying

Plaintiff’s Motion for Partial Summary

Judgment, and Granting Defendant’s Motion

for Summary Judgment (Sept. 14, 2016),

Richey v. Dahne,

United States District Court, W.D. Wash.,

No. 3:12-cv-05060-BHS ........................................... 24a

vii

Report and Recommendation (June 27, 2016),

Richey v. Dahne,

United States District Court, W.D. Wash.,

No. 3:12-cv-05060-BHS ........................................... 34a

Memorandum (Dec. 8, 2015),

Richey v. Dahne,

United States Court of Appeals for

the Ninth Circuit, No. 12-36045 ............................. 62a

Opinion (Dec. 8, 2015),

Richey v. Dahne,

United States Court of Appeals for

the Ninth Circuit, No. 12-36045 ............................. 66a

Order Declining to Adopt the Report and

Reccomendation [sic], Dismissing Plaintiff ’s

Complaint with Prejudice, and Revoking in

forma pauperis Status (Dec. 6, 2012),

Richey v. Dahne,

United States District Court, W.D. Wash.,

No. 3:12-cv-05060-BHS. .......................................... 81a

Report and Recommendation (Aug. 30, 2012),

Richey v. Dahne,

United States District Court, W.D. Wash.

No. 3:12-cv-05060-BHS. .......................................... 86a

Declaration of Dennis Dahne (Mar. 17, 2016),

Richey v. Dahne,

United States District Court, W.D. Wash.,

No. 3:12-cv-05060-BHS ......................................... 104a

viii

TABLE OF AUTHORITIES

Cases

Alward v. Golder

148 P.3d 424 (Colo. App. 2006) ............................. 25

Armstead v. Clark

193 Fed. App’x 613 (7th Cir. 2006) ....................... 22

Ashcroft v. al-Kidd

563 U.S. 731 (2011)...........................................26-27

Aziz v. Schriro

6 Fed. App’x 565 (8th Cir. 2001) ........................... 23

Beard v. Banks

548 U.S. 521 (2006)................................................ 36

Bell v. Wolfish

441 U.S. 520 (1979)................................................ 23

Bradley v. Hall

64 F.3d 1276 (9th Cir. 1995) ......................... passim

Brodheim v. Cry

584 F.3d 1262 (9th Cir. 2009) ....................... passim

City & Cty. of San Francisco v. Sheehan

135 S. Ct. 1765 (2015) ......................................26-27

Clark v. Woodford

36 Fed. App’x 240 (9th Cir. 2002) ....................28-29

Corliss v. Varner

247 Fed. App’x 353 (3d Cir. 2007) .........................24

Cowans v. Warren

150 F.3d 910 (8th Cir. 1998)............................ 22-23

Griffin v. Berghuis

563 Fed. App’x 411 (6th Cir. 2014) .......................24

Hadden v. Howard

713 F.2d 1003 (3d Cir. 1983) ...........................22, 35

Hale v. Scott

371 F.3d 917 (7th Cir. 2004)..................................22

In re Pers. Restraint Petition of Parmelee

115 Wash. App. 273, 63 P.3d 800 (2003)... 25, 32, 35

Jones v. North Carolina Prisoners’ Union

433 U.S. 119 (1977) ................................................36

Lewis v. Casey

518 U.S. 343 (1996) ................................................34

Lockett v. Suardini

526 F.3d 866 (6th Cir. 2008)..................................24

Mathews v. Paynter

__ Fed. App’x __, 2018 WL 4664043

(11th Cir. Sept. 27, 2018) ......................................21

Mullenix v. Luna

136 S. Ct. 305 (2015)..............................................27

Pearson v. Callahan

555 U.S. 223 (2009).......................................... 27, 30

Pell v. Procunier

417 U.S. 817 (1974).......................................... 17, 24

Plumhoff v. Rickard

134 S. Ct. 2012 (2014 ............................................. 26

Porter v. Nussle

534 U.S. 516 (2002)................................................. 8

Procunier v. Navarette

434 U.S. 555 (1978)................................................ 30

Richey v. Aiyeku

No. 4:16CV05047 (E.D. Wash.

Mar. 14, 2017) .................................................. 16, 32

Richey v. Dahne

624 Fed. App’x 525 (9th Cir. 2015) ......................... 3

Richey v. Dahne

733 Fed. App’x 881 (9th Cir. 2018) ......................... 3

Richey v. Dahne

807 F.3d 1202 (9th Cir. 2015) ................................. 3

Semenchuk v. Ohio Dep’t of Rehab. & Corr.

2010-Ohio-5551 (Ct. App.) ..................................... 25

Shaw v. Murphy

532 U.S. 223 (2001).................................1, 18-19, 36

Smith v. Campbell

250 F.3d 1032 (6th Cir. 2001)................................24

Smith v. Mosley

532 F.3d 1270 (11th Cir. 2008).................. 20-21, 36

Tafari v. Fischer

62 A.D.3d 1215, 881 N.Y.S.2d 509 (2009) .............25

Taylor v. Barkes

135 S. Ct. 2042 (2015)............................................27

Thornburgh v. Abbott

490 U.S. 401 (1989) ................................................36

Torres v. Clark

522 Fed. App’x 103 (3d Cir. 2013) .........................23

Turner v. Safley

482 U.S. 78 (1987) .......................................... passim

Ustrak v. Fairman

781 F.2d 573 (7th Cir. 1986)...................... 21-22, 34

Watkins v. Kasper

599 F.3d 791 (7th Cir. 2010)..................................22

White v. Pauly

137 S. Ct. 548 (2017)..............................................29

Wilson v. Layne

526 U.S. 603 (1999) .......................................... 29-30

Woodford v. Ngo

548 U.S. 81 (2006) ...............................................8,34

xii

Ziglar v. Abbasi

137 S. Ct. 1843 (2017) ........................................... 30

Constitution

U.S. Const. amend. I ......................................... passim

Statutes

28 U.S.C. § 1254(1) ...................................................... 3

42 U.S.C. § 1983 .................................................... 4, 11

42 U.S.C. § 1997e(a) ................................................ 4, 8

Regulations

28 C.F.R. § 542.17(a) ............................................. 8, 33

Cal. Code Regs. tit. 15, § 3084.4(a)(4) ........................ 7

Cal. Code Regs. tit. 15, § 3084.6(b)(4) ........................ 7

Fla. Admin. Code r. 33-103.017(2)

(effective Oct. 28, 2007) ........................................... 7

103 Mass. Code Regs. 491.21(3) (2017) ...................... 7

Ohio Admin. Code 5120-9-31(F) (2018) ...................... 7

Or. Admin. R. 291-105-015(2)(f), (g) ......................... 18

Or. Admin. R. 291-109-0140 (2018) ............................ 7

xiii

Vt. Admin. Code 12-8-15:2 ..........................................7

Wis. Admin. Code DOC § 310.07(4) (2018) .................7

Rules

Ninth Cir. R. 36-3(c)(iii) ............................................28

Other Authorities

Alaska,

http://www.correct.state.ak.us/pnp/

pdf/808.03.pdf ......................................................7

http://www.correct.state.ak.us/admin/docs/

2017Profile.pdf?11082018 .................................31

Arizona,

https://corrections.az.gov/prisons .........................31

https://corrections.az.gov/capacitycustody-level/2018/12 ........................................31

California,

https://www.cdcr.ca.gov/Facilities_Locator/..........31

https://www.cdcr.ca.gov/Reports_Research/

Offender_Information_Services_

Branch/WeeklyWed/TPOP1A/

TPOP1Ad181205.pdf ..........................................31

Connecticut,

https://portal.ct.gov/-/media/DOC/Pdf/

Ad/ad0906pdf.pdf?la=en ......................................7

Georgia,

http://www.dcor.state.ga.us/sites/all/

files/pdf/GDC_Inmate_Handbook.pdf .................7

xiv

Hawaii,

http://dps.hawaii.gov/wp-content/uploads/

2015/07/COR-12-03-INMATEGRIEVANCE-PROGRAM-EFF-7-1-15.pdf ........ 7

http://dps.hawaii.gov/about/divisions/

corrections/; https://dps.hawaii.gov/wpcontent/uploads/2018/12/Pop-ReportsEOM-2018-11-30.pdf ......................................... 31

Idaho,

https://www.idoc.idaho.gov/ (follow

Policies & Forms hyperlink; then follow

Policies hyperlink; then follow Offender

Management hyperlink; then follow

Grievance and Informal Resolution

Procedure for Offenders hyperlink) .................... 7

https://www.idoc.idaho.gov/content/prisons ......... 31

Indiana,

https://www.in.gov/idoc/files/00-02301__

Grievance_Procedure_1-01-10.pdf ...................... 7

Kentucky,

https://corrections.ky.gov/About/cpp/

Documents/14/CPP%2014.6.pdf ......................... 7

Michigan,

https://www.michigan.gov/documents/

corrections/03_02_130_200872_7.pdf ................. 7

Montana,

https://cor.mt.gov/Portals/104/Resources/

Policy/MSPprocedures/3-33InmateGrievanceProgram.pdf ..........................7

https://cor.mt.gov/Adult/MSP................................31

https://cor.mt.gov/Portals/104/Resources/

Reports/daily.pdf ...............................................31

Nevada,

http://doc.nv.gov/ (follow Administrative

Regulations hyperlink; follow 700 Series:

Inmate Regulations hyperlink; follow

AR 740 - Inmate Grievance Procedure Temporary - 11.20.2018 hyperlink) ....................7

http://doc.nv.gov/Facilities/Home/ ........................31

http://doc.nv.gov/uploadedFiles/

docnvgov/content/About/Statistics/

Monthly_Reports_by_Year/StatFacts

_07312018.pdf....................................................31

New Mexico,

https://cd.nm.gov/policies/docs/CD-150500.pdf .......7

North Carolina,

https://www.doc.state.nc.us/dop/policy_

procedure_manual/g300.pdf ................................7

Oregon,

https://www.oregon.gov/doc/Pages/about

_us.aspx .............................................................32

Pennsylvania,

https://www.cor.pa.gov/About

%20Us/Pages/DOC-Policies.aspx (follow

\804 Inmate Grievance\ hyperlink) ...................8

xvi

South Carolina,

http://www.doc.sc.gov/policy/GA-0112.htm1544137224988.pdf .................................. 8

South Dakota,

https://doc.sd.gov/documents/Administrative

%20Remedy%20for%20Inmates72018.pdf ......... 8

Tennessee,

https://www.tn.gov/content/dam/tn/correc

tion/documents/501-01.pdf .................................. 8

Texas,

https://www.tdcj.state.tx.us/documents/

Offender_Orientation_Handbook_

English.pdf .......................................................... 8

Virginia,

https://vadoc.virginia.gov/about/procedures/

documents/800/866-1.pdf .................................... 8

Washington,

https://www.doc.wa.gov/docs/publications/

reports/400-RE002.pdf ................................ 31, 32

Wyoming,

http://corrections.wyo.gov/ (follow Policies

hyperlink; follow PP 3.100 Inmate

Communication and Grievance Procedure

hyperlink) ............................................................ 8

INTRODUCTION

Alone among the circuits, the Ninth Circuit has

long adhered to a rule that prisoners have a First

Amendment right to include “disrespectful language”

in grievances. Brodheim v. Cry, 584 F.3d 1262,

1271-72 (9th Cir. 2009) (citing Bradley v. Hall, 64 F.3d

1276, 1281-82 (9th Cir. 1995)). Though this Court has

made clear that the decision first announcing this rule

was wrong, Shaw v. Murphy, 532 U.S. 223, 230 n.2

(2001) (repudiating Bradley, 64 F.3d 1276), the Ninth

Circuit still applies its reasoning routinely.

In this case, the Ninth Circuit applied this rule

to hold that Respondent Thomas Richey had a clearly

established constitutional right to include abusive,

threatening language in prison grievances. Richey

filed grievances repeatedly describing a corrections

officer as “an extremely obese Hispanic female” and

making related insults. App. 109a-12a. Richey,

imprisoned for murder, also referenced the recent

murder of a Washington corrections officer by an

inmate, writing: “It is no wonder why guards are

assaulted and even killed by some prisoners. When

guards like this fat Hispanic female guard abuse their

position as much as they abuse their calorie intake, it

can make prisoners less civilized than myself to resort

to violent behavior.” App. 109a-10a. Petitioner Dennis

Dahne received one of these complaints and, pursuant

to Washington’s Offender Grievance Program,

directed Richey to remove “unnecessary and

inappropriate” language for the grievance to be

processed. App. 111a-12a. Richey refused, and instead

filed this lawsuit.

The district court dismissed Richey’s claim,

finding “no authority for the proposition that insulting

a prison guard is protected conduct.” App. 84a. The

Ninth Circuit reversed and remanded, and after

summary judgment proceedings, ruled for Richey.

Relying on its decision in Brodheim, 584 F.3d 1262,

the panel held that “no legitimate penological interest

is served by prison rules prohibiting disrespectful

language in grievances.” App. 4a (citing Brodheim,

584 F.3d at 1273). Paradoxically, the panel recognized

that Dahne had “valid grounds” to ask Richey to

rewrite his grievance “in the interest of maintaining

good relations between prisoners and guards.”

App. 6a. The panel nonetheless held that Dahne

violated Richey’s free speech rights by failing to

process the grievance as written. The panel also

denied Dahne’s claim of qualified immunity. App. 5a.

The Ninth Circuit’s First Amendment analysis

conflicts with the approach of five other circuits and

many state courts, which hold that prisons can

prohibit disrespectful language in grievances. And the

Ninth Circuit’s qualified immunity analysis is

irreconcilable with this Court’s precedent, which

makes clear that one circuit’s rule does not amount to

“clearly established law” when other circuits disagree.

Whether prisons may lawfully restrict abusive,

threatening language in grievances is a profoundly

important issue cleanly presented by this case. Most

states and the federal government have rules

restricting such language, and prison grievances and

related litigation are voluminous. The Court should

grant certiorari to address this important topic.

OPINIONS BELOW

The Ninth Circuit decision below is Richey v.

Dahne, 733 Fed. App’x 881 (9th Cir. 2018). App.

2a-7a. The order denying rehearing en banc is

unreported and dated September 13, 2018. App. 1a.

The district court’s summary judgment order is

unreported. App. 8a-23a. That order departed from

the report and recommendation of a magistrate judge.

App. 34a-61a.

The Ninth Circuit previously reviewed a

summary dismissal of Richey’s complaint and issued

two decisions. One granted Richey in forma pauperis

status. Richey v. Dahne, 807 F.3d 1202 (9th Cir. 2015),

App. 66a-80a. The other reversed dismissal for failure

to state a claim and is unreported. Richey v. Dahne,

624 Fed. App’x 525 (9th Cir. 2015), App. 62a-65a. The

first district court ruling that dismissed for failure to

state a claim is unreported. App. 81a-85a. That order

also came after the report and recommendation of a

magistrate judge. App. 86a-103a.

JURISDICTION

The Ninth Circuit denied rehearing en banc on

September 13, 2018. App. 1a. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES

The First Amendment to the United States

Constitution provides:

Congress shall make no law respecting

an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances.

42 U.S.C. § 1983 provides in relevant part:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District

of Columbia, subjects, or causes to be subjected,

any citizen of the United States or other person

within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress[.]

STATEMENT

Washington’s Prison Grievance Program

Peacefully

Resolves

Conflicts

and

Reduces Inmate Litigation

The Washington Offender Grievance Program

plays a crucial role in the daily lives of inmates and

staff in Washington correctional institutions. Inmates

submit over 20,000 grievances each year addressing a

variety of issues such as living conditions, application

of rules and policies, actions taken by staff, and

complaints about staff. ER 105.1

For most inmate complaints, Washington’s

program is the administrative remedy that is

endorsed by the Prison Litigation Reform Act (PLRA),

42 U.S.C. § 1997e(a), and which must be exhausted

1 ER refers to the Ninth Circuit excerpt of record

available at Docket Entry 6.

prior to litigation. The program follows guidelines set

forth in Department of Corrections Policy 550.100 and

the Offender Grievance Program Manual. ER 115-65.

These policies require respectful communication between staff and inmates to facilitate peaceful, efficient

conflict resolution. The obligation for appropriate

demeanor and language is reciprocal for staff and

inmates. ER 127, 131. Inmates can file grievances

against prison staff for using inappropriate demeanor

or language when engaging with inmates. ER 164.

Grievances typically start when an inmate

submits a written “offender complaint” to a staff

grievance coordinator on a provided form and

indicates a desire to make it a formal grievance.

App. 87a-88a.2 The grievance coordinator may pursue

immediate resolution, return the complaint to the

offender for rewriting or additional information, or

engage in investigation, review, and response.

App. 88a. Grievance coordinators thus ensure that

offenders comply with basic grievance program

procedures and requirements that allow the program

to operate effectively and fairly.

Coordinators often receive complaints that

need rewriting to focus on grievable topics or to

conform in other ways with the Offender Grievance

Program Manual. ER 105, 141. Rewrites are critical

because they help the offender provide information

needed to investigate or facilitate resolution, and

they allow the system to function without wasting

time on irrelevant information or issues. App. 107a;

2 The Washington Department of Corrections uses the

term “offender” to describe persons in its custody. As used here,

the term is interchangeable with “inmate” or “prisoner.”

ER 105, 141. Rewrite instructions are common and

offenders are encouraged to talk to a coordinator with

questions about rewrites. ER 105. There is no

punishment or disadvantage associated with rewrite

instructions, and inmates are given additional time to

comply with such instructions. ER 105, 108. However,

if an offender does not follow the instruction or

otherwise follow up within the required timeframe,

the complaint is deemed withdrawn. App. 106a-07a.

Under Washington policies, prison grievance

coordinators can direct offenders to remove gratuitous

derogatory and abusive language in an offender

complaint. App. 35a-36a; ER 138-41. These policies

exist

because

Washington

recognizes

that

“ ‘derogatory and abusive language towards staff in a

written grievance establishes a hostile and combative’

environment, ‘undermines the conciliatory goals of

the [program],’ and ‘detracts from the integrity of the

grievance system.’ ” App. 35a. For example, threats of

violence or derogatory insults affect staff morale in

what is inherently a stressful work environment and

can cause needless tension between staff and inmates.

Grievance coordinators also seek to remove irrelevant

abusive language because it obscures real issues and

can create or exacerbate hostile situations. App. 107a;

ER 106-07. The use of irrelevant abusive and

derogatory language in the grievance process leads to

mistrust and resentment that detract from

communication and harm the credibility of the

Grievance Program. ER 108.

Inclusion of derogatory or threatening

language in grievances harms not just those staff who

process grievances, but also other staff and inmates.

For example, if a grievance is about a specific staff

member, the grievance system policies anticipate that

the staff member may review the grievance and

respond. ER 68, 106. Thus, if a grievance containing

abusive or threatening language about an employee

could proceed, that employee would see the language

even if they did not normally process grievances. And

offenders who seek to intimidate or demean staff with

abusive content can easily tell other inmates about

their actions or show them copies of the grievance.

The majority of states have policies, like

Washington’s, that restrict irrelevant abusive or

derogatory language in grievances.3 Similarly, the

3 See Cal. Code Regs. tit. 15, §§ 3084.4(a)(4), 3084.6(b)(4)

(2018); Ohio Admin. Code 5120-9-31(F) (2018); Or. Admin. R.

291-109-0140 (2018); Vt. Admin. Code 12-8-15:2; Wis. Admin.

Code DOC § 310.07(4) (2018); 103 Mass. Code Regs. 491.21(3)

(2017); Fla. Admin. Code r. 33-103.017(2) (effective Oct. 28,

2007);

Alaska,

http://www.correct.state.ak.us/pnp/pdf/808

.03.pdf;

Connecticut,

https://portal.ct.gov/-/media/DOC/Pdf/

Ad/ad0906pdf.pdf?la=en; Georgia, http://www.dcor.state.ga.us/

sites/all/files/pdf/GDC_Inmate_Handbook.pdf; Hawaii, http://

dps.hawaii.gov/wp-content/uploads/2015/07/COR-12-03-INMAT

E-GRIEVANCE-PROGRAM-EFF-7-1-15.pdf; Idaho, https://www

.idoc.idaho.gov/ (follow Policies & Forms hyperlink; then follow

Policies hyperlink; then follow Offender Management

hyperlink; then follow Grievance and Informal Resolution

Procedure for Offenders hyperlink); Indiana, https://www.in

.gov/ idoc /fi le s/ 0 0 - 02 3 01__ G rie v an ce_ Proce dure_1 -0 110 .pdf ; Kentucky, https://corrections.ky.gov/About/cpp/Docu

ments/14/CPP%2014.6.pdf; Michigan, https://www.michigan

.gov/documents/corrections/03_02_130_200872_7.pdf; Montana,

https://cor.mt.gov/Portals/104/Resources/Policy/MSPprocedures/

3-3-3InmateGrievanceProgram.pdf; Nevada, http://doc.nv.gov/

(follow Administrative Regulations hyperlink; follow 700 Series:

Inmate Regulations hyperlink; follow AR 740 - Inmate Grievance

Procedure - Temporary - 11.20.2018 hyperlink); New Mexico,

https://cd.nm.gov/policies/docs/CD-150500.pdf; North Carolina,

Federal Bureau of Prisons’ Administrative Remedy

Program allows staff to reject an inmate’s complaint

if it contains abusive or obscene language. See

28 C.F.R. § 542.17(a).

In addition to promoting prison safety and

inmate rehabilitation, grievance programs help give

effect to the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(a), enacted “to reduce the quantity and

improve the quality of prisoner suits[.]” Porter v.

Nussle, 534 U.S. 516, 524 (2002). As this Court

recognizes, 42 U.S.C. § 1997e(a) requires “proper

exhaustion,” meaning an inmate must comply with

a prison grievance system’s “critical procedural

rules.” Woodford v. Ngo, 548 U.S. 81, 93-94 (2006).

These requirements to comply with state grievance

programs reflect an intent “to eliminate unwarranted

federal-court interference with the administration of

prisons[.]” Id. at 93. The Washington Offender

Grievance Program resolves the majority of

complaints at the administrative level, App. 107a;

ER 105, fulfilling the Prison Litigation Reform Act’s

purpose of reducing the quantity of inmate lawsuits.

https://www.doc.state.nc.us/dop/policy_procedure_manual/g300

.pdf; Pennsylvania, https://www.cor.pa.gov/About%20Us/Pages/

DOC-Policies.aspx (follow 804 Inmate Grievance hyperlink);

South Carolina, http://www.doc.sc.gov/policy/GA-01-12.htm1544

137224988.pdf; South Dakota, https://doc.sd.gov/documents/

Administrative%20Remedy%20for%20Inmates72018.pdf ;

Tennessee, https://www.tn.gov/content/dam/tn/correction/docu

ments/501-01.pdf; Texas, https://www.tdcj.state.tx.us/docume

nts/Offender_Orientation_Handbook_English.pdf ;

Virginia,

https://vadoc.virginia.gov/about/procedures/docume

nts/800/866-1.pdf; Wyoming, http://corrections.wyo.gov/ (follow

Policies hyperlink; follow PP 3.100 Inmate Communication and

Grievance Procedure hyperlink).

Inmate Richey Submitted a Grievance

with Gratuitous Threatening and Abusive

Language and Refused to Rewrite it, so

Officer Dahne Closed the Grievance

Respondent Thomas Richey is serving a sixtyfive-year murder sentence in Washington State

prison. He submitted a grievance in 2011 complaining

that a correctional officer denied him access to the

yard, a shower, and a change of clothes for insufficient

reasons. App. 109a. He described the time and

location of the incident and described the officer

involved as “an extremely obese Hispanic female

guard” who he had previously told “about her need to

diet.” App. 109a. The grievance continued with

abusive statements about the officer and how likely it

was for “some prisoners” to murder or assault officers:

It isn’t my problem that she is so obese, she

holds a grudge over my previous comments

about her enormous girth. It is no wonder why

guards are assaulted and even killed by some

prisoners. When guards like this fat Hispanic

female guard abuse their position as much as

they abuse their calorie intake, it can make

prisoners less civilized than myself to resort to

violent behavior in retaliation.

App. 109a-10a. Richey made these statements months

after an inmate murdered a correctional officer in a

Washington facility. App. 90a.

The first employee to receive this complaint

instructed Richey to “[r]ewrite appropriately” and

“stick to the issue of what happened, when, who was

involved.” App. 110a. Richey submitted virtually the

same statement two days later with more gratuitous

abusive statements that the officer was “an extremely

obese Hispanic female guard,” App. 111a, and this

time stated that:

It is no wonder why guards are slapped and

strangled by some prisoners. When guards like

this obese female Hispanic guard abuse their

position as much as they abuse their calorie

intake, it can make prisoners less civilized than

myself to resort to violence in retaliation.

App. 111a. Officer Dahne, Petitioner here, received

this version of the complaint, and directed Richey to

rewrite it as previously directed and remove

“unnecessary and inappropriate” language. App. 12a,

106a. In the limited room available on the grievance

form, Dahne did not attempt to address every

statement that needed to be omitted because “a

reasonable person could understand that making

repeated references to a staff member’s weight and

talking about guards getting strangled have nothing

to do with an actual grievable issue and are

inappropriate,” App. 9a, especially months after the

murder of a staff member by an inmate. App. 106a.

Richey did not rewrite the grievance, and Dahne

closed it. App. 113a.

About twenty days later, Richey sent Dahne a

message asking, “ARE YOU GOING TO PROCESS MY

PROPERLY SUBMITTED GRIEVANCE OR WHAT? I’M NOT

REWRITING IT SO DO YOUR JOB AND PROCESS IT.”

App. 113a. Officer Dahne responded that the

complaint had been closed because it was not

resubmitted as directed. App. 113a. Richey submitted

a complaint about this closure, again refusing to

rewrite the grievance and insulting Dahne’s writing

skills. App. 114a. Richey never sought any further

relief based on the substance of his grievance about

the actions of the female guard. Instead, he sued

Officer Dahne for closing the grievance.

Proceedings Below

The

district

court

dismissed

Richey’s complaint, but the Ninth

Circuit reversed and remanded

In 2012, Richey filed a pro se complaint under

42 U.S.C. § 1983 alleging that Officer Dahne violated

his First Amendment rights. App. 87a. He claimed

that declining to process his grievance as written

violated both his First Amendment right to petition

the government and his First Amendment right not to

face retaliation for his speech. App. 87a. He sought

only damages. App. 87a.

The district court dismissed Richey’s claims

with prejudice, determining that Richey “failed to

allege a plausible claim for relief,” “failed to allege

facts to show that he engaged in protected conduct or

that his First Amendment rights have been chilled,”

and “failed to allege that his right to redress

grievances has been chilled by [Petitioner’s] refusal to

accept [Richey’s] offensive grievance.” App. 84a.

Richey appealed, and the Ninth Circuit

reversed. App. 65a. The court explained: “ ‘We have

previously held that ‘disrespectful language in a

prisoner’s grievance is itself protected activity under

the First Amendment.’ ” App. 63a (quoting Brodheim

v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (citing

Bradley v. Hall, 64 F.3d 1276, 1281-82 (9th Cir.

1995))). The court reiterated the reasoning of its prior

cases, saying that prisons have “a legitimate

penological interest in encouraging ‘respect by

inmates toward staff and other inmates, and

rehabilitation of inmates through insistence on their

use of socially acceptable ways of solving their

problems,’ ” but that “the link between this important

purpose and the disrespect rules as applied to formal

written grievances is weak.” App. 63a (citing Bradley,

64 F.3d at 1280-81). The court described its prior

decisions as holding that “a prison may not take or

threaten adverse action against an inmate for using

disrespectful language in a grievance.” App. 63a.

Based on this, the Ninth Circuit held that Richey

pleaded “a plausible claim that his rights were

violated when the prison refused to process and

investigate his grievance because it contained

‘objectionable’ language[.]” App. 63a-64a. The court

also ruled that it was premature to decide Officer

Dahne’s qualified immunity defense.4

On remand, the District Court ruled

that Officer Dahne violated Richey’s

right to petition and denied him

qualified immunity

On remand, a Magistrate Judge recommended

summary judgment for Officer Dahne based on

4 In a separate opinion, relevant here only for

background, the same panel held that Richey was entitled to in

forma pauperis status while appealing his claim. App. 68a.

qualified immunity. App. 60a-61a. The district court

rejected the recommendation. App. 22a.

Based on the Ninth Circuit’s 2015 opinion,

Bradley, and Brodheim, the district court ordered

summary judgment for Richey on his right-to-petition

claim, holding that “Richey has shown a violation of

his constitutional right to freedom of speech.”

App. 15a. The court denied Officer Dahne’s request for

qualified immunity on this claim, citing the 2015

opinion (issued after Dahne’s actions) to hold that “the

law is clearly established on this issue[.]” App. 19a.

The district court also concluded that disputed issues

of fact prevented summary judgment on Richey’s

retaliation claim. App. 22a.

The Ninth Circuit holds that

inmates have a clearly established

right to include abusive language in

grievances

Officer Dahne appealed, arguing that his

actions were constitutional and that he was at least

entitled to qualified immunity. The Ninth Circuit

denied the appeal in significant part.

First, the Ninth Circuit held that Richey was

entitled to summary judgment on his claim that

Officer Dahne violated his First Amendment right to

petition. The court acknowledged that “a prison

regulation that restricts inmates’ constitutional rights

could be constitutionally sound if it ‘is reasonably

related to legitimate penological interests.’ ” App. 4a

(quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). The

court, however, held that its prior decision in

Brodheim “held squarely that no legitimate

penological interest is served by prison rules prohibit-

ing disrespectful language in grievances.” App. 4a

(citing Brodheim, 584 F.3d at 1273). Brodheim

“reasoned that grievances were easy to insulate from

other prisoners and from those prison officials who are

the target of the grievance so that disrespectful

language in a grievance did not raise any substantial

security concern.” App. 4a-5a (citing Brodheim, 584

F.3d at 1273). The panel quoted a passage that

Brodheim adopted from the prior Bradley decision: “ ‘A

prisoner’s statement in a grievance need not have any

more impact on prison security through the

maintenance of respect than the prisoner’s

unexpressed thoughts.’ ” App. 5a (quoting Brodheim,

584 F.3d at 1273 (quoting Bradley, 64 F.3d at 1281)).

The panel agreed “that a prison official merely

requesting that a prisoner rewrite a grievance is not a

First Amendment violation.” App. 6a. “The prison

could and did have valid grounds to make such a

request in the interest of maintaining good relations

between prisoners and guards.” App. 6a. But, the

panel concluded, “the violation here occurred when

Dahne refused to allow the grievance to proceed

through the administrative process after Richey did

not rewrite it[.]” App. 6a. In other words, the panel

held both that “[t]he prison could and did have valid

grounds,” to ask Richey to rewrite his grievance “in

the interest of maintaining good relations between

prisoners and guards,” App. 6a, and that “no

legitimate penological interest is served by prison

rules

prohibiting

disrespectful

language

grievances.” App. 4a (citing Brodheim, 584 F.3d

at 1273).

The panel also denied qualified immunity on

this claim in a single paragraph. App. 5a. Officer

Dahne argued that he violated no clearly established

law because the Ninth Circuit’s prior decisions

involved punishment and threats of punishment for

abusive content in grievances, while Officer Dahne

had merely directed Richey to rewrite his grievance.

The panel acknowledged that prior circuit cases had

involved reprisals against prisoners for the content of

grievances, but said that “a correct reading of the

scope of the holding in Brodheim” clearly established

that Dahne’s conduct was unconstitutional. App. 5a.

The court never addressed holdings from other courts

reaching very different conclusions as to whether

prisons may limit abusive language in grievances.

The Ninth Circuit did, however, reject Richey’s

retaliation claim based on qualified immunity. The

panel said that no prior case had “clearly established

that merely refusing to accept a grievance for

processing is a retaliatory adverse action.” App. 7a.

Officer Dahne asked the Ninth Circuit to

reconsider or to hear the case en banc based on the

conflict between the Ninth Circuit’s case law and the

law in other circuits. The court declined. App. 1a.

After the first Ninth Circuit remand in this

case, Richey began filing dozens of grievances against

Washington corrections officers, routinely using

words like “muffintop,” “idiots,” and “runt.” In

response to requests that he rewrite those grievances,

he unsuccessfully tried to supplement his complaint

in this matter and then filed a separate case. In that

case, the court denied the defendant prison employee’s

motion for summary judgment and qualified

immunity based on the prior panel opinion. See Richey

v. Aiyeku, No. 4:16CV05047 (E.D. Wash. Mar. 14,

2017) (ECF No. 57).

THE PETITION SHOULD BE GRANTED

Inmates in state and federal prisons file

hundreds of thousands of grievances every year—

20,000 annually in Washington alone. The rules for

processing grievances are thus extremely important.

Most states and the federal government bar

irrelevant, disrespectful, and abusive language in

grievances, and with good reason. Such language can

harm staff morale, enhance tension between staff

and inmates, and make an already dangerous

environment even more so.

Other than the Ninth Circuit, courts have

uniformly upheld these restrictions. But the

Ninth Circuit’s deeply entrenched view is “that no

legitimate penological interest is served by prison

rules

prohibiting

disrespectful

language

grievances.” App. 4a (citing Brodheim, 584 F.3d at

1273). On that basis, the Ninth Circuit found that

Officer Dahne had violated inmate Richey’s clearly

established First Amendment rights.

The Ninth Circuit’s First Amendment analysis

conflicts with the holdings of five other circuits and

many state courts, which have found no right to

include disrespectful language in grievances. And the

Ninth Circuit’s qualified immunity analysis ignores

this Court’s holdings. The issue is important and

cleanly presented, and the petition should be granted.

The Ninth Circuit’s Analysis of Inmate

First Amendment Rights Conflicts with

Multiple Circuit and State Courts

While

prison

inmates

retain

many

constitutional rights, “lawful incarceration brings

about necessary withdrawal or limitation of many

privileges and rights[.]” Pell v. Procunier, 417 U.S.

817, 822 (1974) (internal quotation marks omitted).

Thirty years ago, this Court adopted an overarching

test to analyze inmates’ constitutional claims: “when

a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological

interests.” Turner, 482 U.S. at 89. The Court

articulated four factors to consider when deciding if

prison rules are reasonable: (1) “there must be a valid,

rational connection between the prison regulation and

the legitimate governmental interest put forward to

justify it”; (2) “whether there are alternative means of

exercising the right that remain open to prison

inmates”; (3) “the impact accommodation of the

asserted constitutional right will have on guards and

other inmates, and on the allocation of prison

resources generally”; and (4) the “absence of ready

alternatives” or if the rule at issue is an “exaggerated

response to prison concerns.” Id. at 89-90 (internal

quotation marks omitted).

Applying this test (loosely) and its prior

precedent, the Ninth Circuit here held that “no

legitimate penological interest is served by prison

rules

prohibiting

disrespectful

language

grievances.” App. 4a (citing Brodheim, 584. F.3d at

1273). But five other circuits and many state courts

have reached a contrary conclusion.

The Ninth Circuit’s entrenched rule,

applied here, is that inmates have a

right to include irrelevant, disrespectful language in grievances

The Ninth Circuit’s unique view of inmate

speech in grievances started in Bradley v. Hall, 64

F.3d 1276 (9th Cir. 1995), where the court reviewed

an Oregon rule “prohibiting the use of ‘hostile, sexual,

abusive or threatening’ language” in grievances. Id. at

1278 (quoting Or. Admin. R. 291-105-015(2)(f), (g)).

The court acknowledged that this rule served “several

legitimate penological interests,” but held that “we

must balance the importance of the prisoner’s

infringed right against the importance of the

penological interest served by the rule.” Id. at 1280.

Conducting this balancing, the court held that the

rule placed a “substantial” burden on inmates’ right to

petition the government, id., and that the prison’s

legitimate concerns could be achieved in other ways,

such as by restructuring grievance systems to “shield”

prison officials who regularly interacted with inmates

from abusive statements directed at them, id. at 1281.

The court therefore held “that prison officials may not

punish an inmate merely for using ‘hostile, sexual,

abusive or threatening’ language in a written

grievance.” Id. at 1282.

This Court repudiated Bradley in Shaw v.

Murphy, 532 U.S. 223 (2001). The Ninth Circuit had

extended Bradley to hold that an inmate’s First

Amendment rights were violated when he was

sanctioned for “insolent” language in a letter to

another inmate. But, as Shaw explains, Bradley erred

“when it ‘balance[d] the importance of the prisoner’s

infringed right against the importance of the

penological interest served by the rule.’ ” Id. at 230 n.2

(alteration in original) (internal quotation marks

omitted). “In Turner we adopted a unitary, deferential

standard for reviewing prisoners’ constitutional

claims[.]” Id. at 229.

The Ninth Circuit was undeterred. In 2009, the

court acknowledged that this Court had “explicitly

disapproved of our ‘balancing’ method of analysis” in

Shaw. Brodheim, 584 F.3d at 1272 (citing Shaw, 532

U.S. 223). But the court “reach[ed] the same result as

the Bradley court.” Id. Quoting at length from

Bradley, the court said that there was no link between

the prison’s interest in “peaceable operations” and

rules regulating language in written grievances.

Id. (quoting Bradley, 64 F.3d 1281). The court

speculated that prisons could simply restructure

grievance programs to avoid having those who are the

target of grievances see abusive statements. Id. at

1273 (“It takes little imagination to structure a

grievance system and regime of disrespect rules that

would make a prisoner’s statements in a complaint or

grievance invisible to all those involved in the daily

operations of the prison, alleviating any security

concern.” (quoting Bradley, 64 F.3d at 1281)). Judge

Bea did not join the panel’s conclusion that the prison

lacked legitimate penological interests in enforcing

disrespect rules as to written grievances. Id. at 1274

(Bea, J., concurring in result).

The panel here analyzed inmate Richey’s free

speech claim under this Ninth Circuit precedent. The

panel said: “In Brodheim we held squarely that no

legitimate penological interest is served by prison

rules

prohibiting

disrespectful

language

grievances.” App. 4a (citing Brodheim, 584 F.3d at

1273). “We reasoned that grievances were easy to

insulate from other prisoners and from those prison

officials who are the target of the grievance, so that

disrespectful language in a grievance did not raise any

substantial security concern.” App. 4a-5a. Because

“rules prohibiting disrespectful language do not serve

a legitimate penological interest in the special context

of prison grievances,” the panel found that Officer

Dahne had violated Richey’s First Amendment rights.

App. 5a. And it held that those rights were clearly

established by its prior decisions. The Ninth Circuit

confirmed its commitment to this rule by denying

rehearing en banc. App. 1a.

As detailed in the next section, many other

courts would have rejected Richey’s claim out of hand.

Five Circuits and many state courts

hold that inmates have no first

amendment

right

include

irrelevant, disrespectful language

in grievances

Applying this Court’s framework for evaluating

inmate rights, five circuits and many state courts

have upheld rules restricting or punishing abusive or

disrespectful language in prison grievances. These

courts have uniformly concluded that such rules serve

legitimate penological interests.

In Smith v. Mosley, 532 F.3d 1270 (11th Cir.

2008), the Eleventh Circuit held that prisons may

discipline inmates for grievance letters that include

“insubordinate remarks.” Id. at 1277. The inmate

there, Smith, filed a grievance that made serious

complaints about inmates being forced to go outside in

cold weather in “sub-standard clothing,” but it also

included a range of insulting language. Id. at 1272-73.

Smith was placed in administrative segregation and

lost all privileges for 90 days, 45 of those days for

violating a rule against making false statements

about an employee, and 45 for “insubordination.”

Id. at 1274. The court held that both rules “are

reasonably related to legitimate penological interests

and therefore valid limitations on inmate speech.”

Id. at 1277. Officials could assume that the language

the inmate “employed, which reeked of disrespect

for the administrators’ authority, would be noised

about the prison’s population and, if ignored, could

seriously impede their ability to maintain order and

thus achieve the institution’s penological objectives.”

Id. at 1279; see also Mathews v. Paynter, __ Fed.

App’x __, 2018 WL 4664043, at *3 (11th Cir. Sept. 27,

2018) (citing Mosley, and holding that prison rule

prohibiting disrespect against prison official could be

applied to statements in a grievance because it was

“reasonably related to legitimate penological interests

and therefore [a] valid limitation[ ] on inmate speech”

(alterations in original) (quoting Mosley, 532 F.3d

at 1277)).

The Seventh Circuit has issued several

published opinions recognizing that prisons have

legitimate interests in preventing disrespectful or

abusive language in prison grievances. First, in

Ustrak v. Fairman, 781 F.2d 573 (7th Cir. 1986), the

court held that there was no First Amendment

violation in punishing a prisoner for writing a letter

to the warden referring to guards as “stupid lazy

assholes.” Id. at 580. The letter “violat[ed] a

regulation that forbids inmates’ ‘being disrespectful to

any employee of the institution[.]’ ” Id. The court said

the regulation had a “direct and elementary relation

to the needs of prison administration. We can imagine

few things more inimical to prison discipline than

allowing prisoners to abuse guards[.]” Id.

More recently, in Hale v. Scott, 371 F.3d 917

(7th Cir. 2004), the court said that an inmate could be

punished for violating a rule against “insolence” by

including irrelevant allegations about a guard’s

sexual behavior in a grievance. Id. at 918.

“Accusations of sexual misconduct unrelated to the

accusing inmate’s legitimate concerns . . . are species

of such insolence. To privilege them merely because

they are appended irrelevantly to a grievance would

make no sense.” Id. at 919 (citation omitted). Hale

criticized Ninth Circuit cases for a crabbed approach

to evaluating prison rules, invalidating rules “merely

[because] the needs of the prison did not require that

the regulation be enforced in the particular case

against a particular prisoner[.]” Id. at 920; see also

Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir.

2010) (First Amendment does not protect “the

confrontational, disorderly manner in which [inmate]

complained about the treatment of his personal

property”); Armstead v. Clark, 193 Fed. App’x 613, 616

(7th Cir. 2006) (“[L]anguage that is otherwise

punishable is not shielded from disciplinary action

merely because it appears in a grievance.”).

The Eighth Circuit, similarly, has held that

prisons may punish inmates for “insulting behavior”

in grievances. Cowans v. Warren, 150 F.3d 910 (8th

Cir. 1998) (per curiam). In a grievance, inmate

Cowans accused several guards of directing racial

slurs at him, and he referred to the guards as “racist,”

“supremacist,” and “dogs.” Id. at 911. He received a

punishment of 10 days in administrative segregation

for violating a rule against “insulting behavior.” Id.

The Eighth Circuit held that because this was a

legitimate rule, the punishment could constitutionally

be applied. Id. at 912; see also Aziz v. Schriro, 6 Fed.

App’x 565, 566 (8th Cir. 2001) (citing Cowans and

holding that inmate failed to state a section 1983

claim based on disciplinary action resulting from

language in a written grievance).

The Third Circuit, meanwhile, has long held

that prisons may discipline inmates for “insolence or

disrespect toward a staff member” in a grievance.

Hadden v. Howard, 713 F.2d 1003, 1006-07 (3d Cir.

1983). Though the claim in this case was one of due

process rather than free speech, the question of

whether such rules serve legitimate penological

interests was the same. The court held that legitimate

penological interests are served by restricting such

content in grievances. “If it is possible for inmates

maliciously to lie and maliciously to show disrespect

toward prison staff members, merely by doing so

within the context of filing an inmate complaint, then

serious problems of staff morale and prison discipline

may reasonably be expected to arise.” Id. at 1007-08

(citing Bell v. Wolfish, 441 U.S. 520, 546-47 (1979));

see also Torres v. Clark, 522 Fed. App’x 103, 106

(3d Cir. 2013) (“use of abusive, obscene, or

inappropriate language towards” an official in an

outgoing letter “plainly violated the prison’s

permissible restriction on Torres’s First Amendment

rights and therefore cannot form the basis for a

retaliation claim”); Corliss v. Varner, 247 Fed. App’x

353, 355 (3d Cir. 2007) (following Seventh and Eighth

Circuit cases to hold that regulation prohibiting

“abusive, obscene or inappropriate language” is a

permissible restriction on an inmate’s constitutional

rights in any prison context).

Finally, the Sixth Circuit has held that a prison

does not violate the First Amendment when it

removes an inmate from a legal advisor position

because of aggressive speech and conduct employed

while pursuing grievances. Smith v. Campbell,

250 F.3d 1032, 1037 (6th Cir. 2001). The court

assumed the inmate “had a right to file grievances,”

but held that “he did so in a manner that violated

legitimate prison regulations and objectives” and thus

was not engaged “in a protected activity.” Id. “While it

is true that a prisoner has a First Amendment right

to file grievances against prison officials, if a prisoner

violates a legitimate prison regulation, he is not

engaged in protected conduct[.]” Id. (footnote omitted)

(citation omitted) (internal quotation marks omitted)

(citing Pell, 417 U.S. at 822); see also Griffin v.

Berghuis, 563 Fed. App’x 411, 416 (6th Cir. 2014)

(applying Smith to hold that a prisoner’s complaint

about prison conditions is not protected by First

Amendment “if it is made in a manner incompatible

with the institution’s legitimate penological

objectives”); Lockett v. Suardini, 526 F.3d 866, 874

(6th Cir. 2008) (inmate had no First Amendment right

to insult prison employee during a hearing in violation

of rule prohibiting insolent behavior).

In addition to the above circuits, many state

courts have held that prisons do not violate the First

Amendment by restricting or punishing disrespectful

language in prison grievances. Most notably, in In re

Personal Restraint Petition of Parmelee, 115 Wash.

App. 273, 63 P.3d 800 (2003), the Washington Court

of Appeals held that prisons have very good reasons

for limiting “scandalous, indecent, or insolent

language about corrections officers in written

grievances.” Id. at 286. “Given the ugly realities of

prison life,” if such rules were eliminated “we have no

doubt that the impact would be a veritable barrage of

similar written ‘grievances,’ filed not for the purpose

of addressing prisoner concerns but for the purpose of

venting frustration, resentment, and despair.” Id.; see

also Semenchuk v. Ohio Dep’t of Rehab. & Corr.,

2010-Ohio-5551, at ¶ 33 (Ct. App.) (upholding an Ohio

prison regulation subjecting inmates to punishment

for “disrespectful,

threatening or otherwise

inappropriate comments” in grievances); Tafari v.

Fischer, 62 A.D.3d 1215, 1216, 881 N.Y.S.2d 509

(2009) (prison can discipline inmate for “obscene and

abusive descriptions” in a grievance); Alward v.

Golder, 148 P.3d 424, 428 (Colo. App. 2006) (“Inmate’s

. . . First Amendment rights were not violated by

defendants’ actions in disciplining him for using

offensive language in his grievance.”).

In short, if Richey had filed his claim in

countless other courts, including in state court in

Washington, it would have been rejected out of hand.

But because he filed it in the Ninth Circuit, he

prevailed. The conflict is stark.

The Ninth Circuit’s Cursory Denial of

Qualified

Immunity

Conflicts

with

Numerous Decisions of this Court

The question presented is doubly important

because the Ninth Circuit not only issued a First

Amendment ruling that conflicts with countless other

courts, but also held that the First Amendment right

it declared was clearly established. This ruling

conflicts with several principles of qualified immunity

this Court has established and deeply “undermine[s]

the values qualified immunity seeks to promote.”

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

Qualified

immunity

protects

government officials from liability

unless their actions violate clearly

established rights

Government officials are “immune from suit

under 42 U.S.C. § 1983 unless they have ‘violated a

statutory or constitutional right that was clearly

established at the time of the challenged conduct.’ ”

City & Cty. of San Francisco v. Sheehan, 135 S. Ct.

1765, 1774 (2015) (quoting Plumhoff v. Rickard, 134

S. Ct. 2012, 2023 (2014)). “An officer ‘cannot be said to

have violated a clearly established right unless the

right’s contours were sufficiently definite that any

reasonable official in [his] shoes would have

understood that he was violating it.’ ” Id. (alteration in

original) (quoting Plumhoff, 134 S. Ct. at 2023). The

standard requires “that ‘existing precedent . . . placed

the statutory or constitutional question beyond

debate.’ ” Id. (alteration in original) (quoting al-Kidd,

563 U.S. at 741). The Court has “repeatedly told

courts . . . not to define clearly established law at a

high level of generality” in order to determine

“whether the violative nature of particular conduct is

clearly established.” Mullenix v. Luna, 136 S. Ct. 305,

308 (2015) (per curiam) (alteration in original).

This “exacting standard” for clearly established

rights “ ‘gives government officials breathing room to

make reasonable but mistaken judgments’ by

‘protect[ing] all but the plainly incompetent or those

who knowingly violate the law.’ ” Sheehan, 135 S. Ct.

at 1774 (alteration in original) (quoting al-Kidd, 563

U.S. at 743). The doctrine thus balances the “need to

hold public officials accountable when they exercise

power irresponsibly” with the important “need to

shield officials from harassment, distraction, and

liability when they perform their duties reasonably.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009).

The Ninth Circuit decision flouts

this Court’s repeated direction to

rely on precedent that clearly

addresses the conduct of an official

The ruling below conflicts with this Court’s

cases holding that clearly established rights exist only

when authoritative precedent addresses the specific

type of action taken by an official. E.g., Sheehan, 135

S. Ct. at 1774; Mullenix, 136 S. Ct. at 308; al-Kidd,

563 U.S. at 740; Taylor v. Barkes, 135 S. Ct. 2042,

2044 (2015).

Prior to this case, no decision had held that

prison officials violate an inmate’s First Amendment

right to petition simply by declining to process a

grievance that included irrelevant abusive or

threatening content. Brodheim addressed a

retaliation claim and held that disrespectful language

in a grievance was “protected conduct” for which an

inmate could not be threatened with retaliation.

Brodheim, 584 F.3d at 1271. The Brodheim decision

relied on Bradley, which held “that ‘prison officials

may not punish an inmate merely for using “hostile,

sexual, abusive or threatening” language in a written

grievance.’ ” Brodheim, 584 F.3d at 1271 (quoting

Bradley, 64 F.3d at 1281-82) (emphasis added).

Petitioner did not punish Richey, threaten with

punishment, or retaliate; he simply required Richey to

rewrite a grievance and omit irrelevant abusive

material. Neither Brodheim nor Bradley addressed

this situation, and even this panel recognized that no

prior case had “clearly established that merely

refusing to accept a grievance for processing is a

retaliatory adverse action.” App. 7a. Nonetheless, the

panel held that Officer Dahne violated a clearly

established right to petition even though no prior case

had found a violation in such circumstances.

The panel’s holding is particularly jarring given

that the Ninth Circuit had previously found no

constitutional violation in a situation where an officer

simply refused to process a grievance. In Clark v.

Woodford, 36 Fed. App’x 240 (9th Cir. 2002),5 an

inmate sought to avoid PLRA exhaustion

requirements after “correctional officers ‘screened out’

his complaints on the basis of his use of ‘inappropriate

statements[.]’ ” Id. at 241. The inmate argued that

screening complaints to require removal of

inappropriate language “violated his right to petition

5 Under Ninth Circuit Rule 36-3(c)(iii), unpublished

decisions issued before 2007 may be used to demonstrate the

existence of a conflict among opinions.

the government for a redress of his grievances under

the First Amendment as set forth in Bradley[.]” Id.

The court disagreed. A requirement to resubmit

“grievances after removing the ‘inappropriate

statements,’ which included profanity and offensive

language that was not essential to and likely

detracted from the substance of his claim, does not

constitute a ‘punishment,’ unlike in Bradley, and is

not an ‘exaggerated response to prison concerns.’ ”

Id. at 241 (quoting Turner, 482 U.S. at 89-90).

In short, no prior case held that prisons must

allow inmates to include irrelevant abuse in

grievances. Thus, the Ninth Circuit flouted this

Court’s repeated admonitions that the clearly

established analysis requires a court to “identify a

case where an officer acting under similar

circumstances” violated the constitution. White v.

Pauly, 137 S. Ct. 548, 552 (2017).

The ruling below conflicts with this

Court’s cases holding that rights are

not clearly established by a circuit

ruling in conflict with other circuits

The panel decision also conflicts with this

Court’s cases by denying qualified immunity when

courts are divided on the issue presented and the

broad consensus rejects a claimed right.

This principle was first established by Wilson v.

Layne, 526 U.S. 603 (1999), where a split among the

circuits on the governing legal issue developed after

the events giving rise to the claim. In light of the

conflict on the legal question that controlled the case,

the Court upheld qualified immunity. “If judges thus

disagree on a constitutional question, it is unfair to

subject [government officials] to money damages for

picking the losing side of the controversy.” Id. at 618.

The Court reapplied Wilson a decade later in

Pearson v. Callahan, 555 U.S. 223, 244-45 (2009). At

that time, circuit courts were divided over “the

consent-once-removed doctrine” allowing for a

warrantless search of a house. However, the conflict

had arisen because the Tenth Circuit case at hand had

disagreed with three other circuits and two state

courts. Pearson upheld qualified immunity to the

defendant, reciting from Wilson. Id. at 245; see also

Ziglar v. Abbasi, 137 S. Ct. 1843, 1868 (2017) (“When

the courts are divided on an issue so central to the

cause of action alleged, a reasonable official lacks the

notice required before imposing liability.”); Procunier

v. Navarette, 434 U.S. 555, 562 (1978) (holding that

government officials cannot fairly be “expected to

predict the future course of constitutional law”).

Officer Dahne’s right to qualified immunity is

analogous to the defendants in Pearson and even

stronger than in Wilson. When Dahne directed Richey

to rewrite his grievance, five federal circuits and

numerous state courts had rejected First Amendment

and realtaed challenges by inmates to prison

regulation of abusive and disrespectful speech in

grievances. Infra pp. 20-25. Ninth Circuit alone had a

minority view, and even its cases were narrowly

concerned with punishment or retaliation for speech.

Richey, therefore, did not allege violation of a right

that was so far beyond debate that Officer Dahne

should have known he was violating the constitution.

Rather, Officer Dahne had good reason to believe that

the First Amendment did not preclude prison policies

that required inmates to omit abusive threatening

content from grievances.

This stark conflict, together with the conflict

among the lower courts on the First Amendment

question, provides ample basis for this Court to grant

the petition. Alternatively, the Court could summarily

reverse on qualified immunity grounds, though that

would leave the Ninth Circuit’s erroneous First

Amendment analysis in place, governing prisons in a

large swath of the country.

The Question Presented is Important and

the Ninth Circuit’s Decision is Wrong

Whether prison grievance systems can restrict

gratuitous abusive content is an important question

that the Ninth Circuit has resolved incorrectly.

Over 17,000 inmates reside in Washington

state prisons, and they file roughly 20,000 grievances

annually.6 In total, state prisons in the Ninth Circuit

house 225,000 inmates,7 and likely process hundreds

6 https://www.doc.wa.gov/docs/publications/reports/400RE002.pdf; ER 105.

Alaska, http://www.correct.state.ak.us/admin/docs/

2017Profile.pdf?11082018; Arizona, https://corrections.az.gov/

prisons, https://corrections.az.gov/capacity-custody-level/2018

/12; California, https://www.cdcr.ca.gov/Facilities_Locator/,

https://www.cdcr.ca.gov/Reports_Research/Offender_Informatio

n_Services_Branch/WeeklyWed/TPOP1A/TPOP1Ad181205.pdf;

Hawaii, http://dps.hawaii.gov/about/divisions/corrections/;

https://dps.hawaii.gov/wp-content/uploads/2018/12/Pop-ReportsEOM-2018-11-30.pdf; Idaho, https://www.idoc.idaho.gov/

content/prisons; Montana, https://cor.mt.gov/Adult/MSP,

https://cor.mt.gov/Portals/104/Resources/Reports/daily.pdf;

Nevada, http://doc.nv.gov/Facilities/Home/, http://doc.nv.gov/up

loadedFiles/docnvgov/content/About/Statistics/Monthly_Reports

of thousands of grievances annually. Thus, while the

Ninth Circuit’s First Amendment analysis of prison

grievances is well outside the mainstream, it governs

a massive number of grievances filed ever year.

If States must allow inmates to include

gratuitous abusive language in grievances, then

inmates will file more such grievances and litigate

them, as the facts of this case demonstrate. After the

panel here reversed dismissal of Richey’s claim, he

began filing dozens of offensive grievances against

Washington corrections officers, and he filed a lawsuit

(which has survived summary judgment) when he was

told to rewrite those grievances. See Richey v. Aiyeku,

No. 4:16CV05047 (E.D. Wash. Mar. 14, 2017); see also,

e.g., In re Parmelee, 115 Wash. App. at 286 (“Given the

ugly realities of prison life,” if prisons could not

restrict abusive content in grievances, “we have no

doubt that the impact would be a veritable barrage of

similar written ‘grievances,’ filed not for the purpose

of addressing prisoner concerns but for the purpose of

venting frustration, resentment, and despair.”).

Moreover, the Ninth Circuit’s analysis means

not only that most States’ regulations governing

grievance content are unconstitutional,8 but also that

the federal government’s rules for processing

_by_Year/StatFacts_07312018.pdf; Oregon, https://www.ore

gon.gov/doc/Pages/about_us.aspx; Washington, https://www

.doc.wa.gov/docs/publications/reports/400-RE002.pdf.

8 See note 7 above, listing states with prison regulations

restricting disrespectful or abusive content.

grievances are unconstitutional. See 28 C.F.R.

§ 542.17(a) (allowing federal prisons to “reject and

return to the inmate without response a Request or an

Appeal that is written by an inmate in a manner that

is obscene or abusive”). The Bureau of Prisons should

not have to process grievances differently in the Ninth

Circuit based on that court’s outlier rule.

The harms caused by the Ninth Circuit’s

extraordinary rule are particularly unjustified

because the rule is so clearly incorrect. Under Turner,

“when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological

interests.” Turner, 482 U.S. at 89. Courts analyze four

factors to decide if prison rules are reasonable:

(1) “there must be a valid, rational connection between

the

prison

regulation

and

the

legitimate

governmental interest put forward to justify it”;

(2) “whether there are alternative means of exercising

the right that remain open to prison inmates”; (3) “the

impact accommodation of the asserted constitutional

right will have on guards and other inmates, and on

the allocation of prison resources generally”; and

(4) the “absence of ready alternatives” or if the rule at

issue is an “exaggerated response to prison concerns.”

Id. at 89-90 (internal quotation marks omitted). Each

of these factors supports the constitutionality of

Washington’s rules and Officer Dahne’s actions here.

First, there is a “valid, rational connection

between the prison regulation and the legitimate

governmental interest put forward to justify it.”

Turner, 482 U.S. at 89. As many other circuits have

recognized, limiting disrespectful language in

grievances promotes respect between offenders and

prison staff and avoids needless hostility. See, e.g.,

Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir. 1986)

(holding that such regulations have a “direct and

elementary relation to the needs of prison

administration” because “[w]e can imagine few things

more inimical to prison discipline than allowing

prisoners to abuse guards”). Indeed, even this panel

recognized that Officer Dahne had “valid grounds” to

ask Richey to rewrite his grievance “in the interest of

maintaining good relations between prisoners and

guards.” App. 6a.

Second, “alternative means of exercising the

right [ ] remain open to prison inmates.” Turner,

482 U.S. at 90. Requiring inmates to omit irrelevant

abusive and threatening language does not

meaningfully restrict their right to petition and to

access the courts. Richey easily could have conveyed

the substance of his complaint without insulting the

officer’s diet or referring to officers being “slapped and

strangled by some prisoners.” See Lewis v. Casey,

518 U.S. 343, 351-52 (1996) (meaningful access to the

courts is not compromised where inmates’ efforts to

pursue legal claims are not actually hindered). In fact,

Washington’s policy protects inmates who have

genuine complaints by eliminating misuse of the

system. See Woodford, 548 U.S. at 93-95.

Third, the Ninth Circuit ignored “the impact

accommodation of the asserted constitutional right

will have on guards and other inmates and on the

allocation of prison resources generally.” Turner,

482 U.S. at 89. Forcing States to allow inmates to

insult and threaten guards will harm staff morale and

increase tension between offenders and staff. See, e.g.,

Hadden, 713 F.2d at 1008 (recognizing that allowing

inmates “maliciously to show disrespect toward prison

staff members” would lead to “serious problems of

staff morale and prison discipline”). It will also harm

other inmates by gumming up the grievance system

and creating a more hostile environment. See, e.g.,

Mosley, 532 F.3d at 1279 (acknowledging that prison

officials could assume that grievance, “which reeked

of disrespect for the administrators’ authority, would

be noised about the prison’s population and, if

ignored, could seriously impede their ability to

maintain order”); In re Parmelee, 115 Wash. App. at

286 (recognizing that allowing scandalous attacks on

guards in grievances would lead to “a veritable

barrage of similar written ‘grievances’ ”).

Fourth, there are no “ready alternatives,” and

requiring inmates to omit abusive language is not an

“ ‘exaggerated response’ to prison concerns.” Turner,

482 U.S. at 89-90. The Ninth Circuit has repeatedly

suggested, and did so again here, that prisons could

simply reshape their grievance systems so that

grievances are “insulate[d] from other prisoners and

from those prison officials who are the target of the

grievance, so that disrespectful language in a

grievance [would] not raise any substantial security

concern.” App. 4a-5a (citing Brodheim, 584 F.3d at

1273). This absurd claim is a perfect example of why

“prison administrators . . . , and not the courts, [are]

to make the difficult judgments concerning

institutional operations.” Turner, 482 U.S. at 89

(alterations in original) (citing Jones v. North

Carolina Prisoners’ Union, 433 U.S. 119, 128 (1977)).9

Isolating grievance reviewers or creating special

reviewers whenever an inmate includes gratuitous

insults would be a logistical nightmare. Washington

prisons review over 20,000 grievances a year, and

Officer Dahne’s institution alone handles over 300 a

month. Even if it were possible to ensure that the

initial reviewer of a grievance was not the target of

offensive language in the grievance, Washington’s

grievance policy understandably contemplates that an

officer who is the subject of a grievance will have an

opportunity to review it before the prison responds.

ER 68. And it is hard to fathom how prisons could

prevent inmates from sharing copies of their offensive

grievances with each other. See, e.g., Mosley, 532 F.3d

at 1279 (recognizing this problem).

In short, Washington’s grievance policies,

which mirror state (and federal) policies around the

country, serve legitimate penological interests and are

constitutional. The Ninth Circuit’s contrary ruling

and continued misapplication of Turner present an

important question that the Court should address.

9 See also, e.g., Beard v. Banks, 548 U.S. 521, 528 (2006)

(courts owe substantial deference to the judgment of prison

administrators); Shaw, 532 U.S. at 232 (same); Thornburgh v.

Abbott, 490 U.S. 401, 413, 418 (1989) (same).

This Case is an Ideal Vehicle to Address

the Question Presented, Which Needs No

Further Percolation

There is no vehicle problem that would prevent

the Court from reaching the question presented, and

no reason for the Court to delay in addressing it.

The Ninth Circuit held that summary

judgment was properly granted for inmate Richey on

his claim that Officer Dahne violated his First

Amendment right to petition, and held that this right

was clearly established. App. 4a-6a. The material

facts are undisputed, and the issues before the Court

would be purely legal. A ruling on the question

presented would be dispositive.

Moreover, though the panel opinion is

unpublished, there is no reason to wait for this issue

to percolate further in the Ninth Circuit or elsewhere.

The panel opinion here is rooted in the Ninth Circuit’s

published opinion in Brodheim, 584 F.3d 1262. Since

issuing that opinion in 2009, the Ninth Circuit has

cited it over 100 times, and district courts in the Ninth

Circuit have cited it over 1,500 times. It has long since

become clear that the Ninth Circuit is not going to

reverse course and bring its precedent in line with

other circuits, as confirmed here by the denial of

rehearing en banc despite a petition clearly

demonstrating the conflict. And there is no reason to

wait for further percolation elsewhere because many

other courts have reached conclusions contrary to the

Ninth Circuit’s, with no indication that any are even

considering adopting its misguided view. The time is

now for the Court to review this issue.

CONCLUSION

The petition for writ of certiorari should be

granted.

RESPECTFULLY SUBMITTED.

ROBERT W. FERGUSON

Attorney General

NOAH G. PURCELL

Solicitor General

Counsel of Record

JAY D. GECK

Deputy Solicitor General

HALEY C. BEACH

Assistant Attorney General

December 12, 2018

1125 Washington Street SE

Olympia, WA 98504-0100

noah.purcell@atg.wa.gov

360-753-6200

APPENDIX

Order (Sept. 13, 2018),

Richey v. Dahne,

United States Court of Appeals for

the Ninth Circuit, No. 17-35032 ............................... 1a

Memorandum (Apr. 25, 2018),

Richey v. Dahne,

United States Court of Appeals for

the Ninth Circuit, No. 17-35032 ............................... 2a

Order Adopting in Part and Modifying in

Part Report and Recommendation, Granting

in Part and Denying in Part Plaintiff ’s

Motion for Partial Summary Judgment, and

Denying Defendant’s Motion for Summary

Judgment (Dec. 15, 2016),

Richey v. Dahne,

United States District Court, W.D. Wash.,

No. 3:12-cv-05060-BHS ............................................. 8a

Order Adopting in Part and Modifying in

Part Report and Recommendation, Denying

Plaintiff’s Motion for Partial Summary

Judgment, and Granting Defendant’s Motion

for Summary Judgment (Sept. 14, 2016),

Richey v. Dahne,

United States District Court, W.D. Wash.,

No. 3:12-cv-05060-BHS ........................................... 24a

iia

Report and Recommendation (June 27, 2016),

Richey v. Dahne,

United States District Court, W.D. Wash.,

No. 3:12-cv-05060-BHS ........................................... 34a

Memorandum (Dec. 8, 2015),

Richey v. Dahne,

United States Court of Appeals for

the Ninth Circuit, No. 12-36045 ............................. 62a

Opinion (Dec. 8, 2015),

Richey v. Dahne,

United States Court of Appeals for

the Ninth Circuit, No. 12-36045 ............................. 66a

Order Declining to Adopt the Report and

Reccomendation [sic], Dismissing Plaintiff ’s

Complaint with Prejudice, and Revoking in

forma pauperis Status (Dec. 6, 2012),

Richey v. Dahne,

United States District Court, W.D. Wash.,

No. 3:12-cv-05060-BHS. .......................................... 81a

Report and Recommendation (Aug. 30, 2012),

Richey v. Dahne,

United States District Court, W.D. Wash.

No. 3:12-cv-05060-BHS. .......................................... 86a

Declaration of Dennis Dahne (Mar. 17, 2016),

Richey v. Dahne,

United States District Court, W.D. Wash.,

No. 3:12-cv-05060-BHS ......................................... 104a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS W.S. RICHEY,

Plaintiff-Appellee,

D. DAHNE,

No. 17-35032

D.C.

No. 3:12-cv-05060-BHS

Western District of

Washington, Tacoma

ORDER

Defendant-Appellant.

Before: W. FLETCHER and GOULD, Circuit Judges,

and EZRA,* District Judge.

The panel voted to deny Appellant’s Petition for

Rehearing.

Judges Fletcher and Gould voted to deny

Appellant’s Petition for En Banc Rehearing, and

Judge Ezra has so recommended.

The full court has been advised of Appellant’s

Petition for En Banc Rehearing. Fed. R. App. P. 35.

Appellant’s Petition for Rehearing and the

Petition for En Banc Rehearing are DENIED.

* The Honorable David A. Ezra, United States District

Judge for the District of Hawaii, sitting by designation.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS W.S. RICHEY,

Plaintiff-Appellee,

No. 17-35032

D.C.

No. 3:12-cv-05060-BHS

MEMORANDUM*

D. DAHNE,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted March 13, 2018

Seattle, Washington

Before: W. FLETCHER and GOULD, Circuit Judges,

and EZRA,** District Judge.

Thomas Richey, a Washington state prisoner,

filed an internal grievance complaining about the

* This disposition is not appropriate for publication and

is not precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable David A. Ezra, United States District

Judge for the District of Hawaii, sitting by designation.

actions of a prison guard. The grievance included rude

comments about the guard’s weight, including

describing her as “extremely obese.” Dennis Dahne,

an official charged with handling grievances, took

issue with parts of the grievance and told Richey to

rewrite the grievance to eliminate the objectionable

commentary. Richey submitted a “rewrite” that kept

the rude comments, and that resulted in the facts that

generated this lawsuit.

Dahne did not process the rewritten grievance

still containing the offensive language about the

guard’s weight, and the grievance was subsequently

considered to be “administratively withdrawn,” which

meant that it would not be processed.

Richey sued for violation of his First

Amendment right to petition and for retaliation for

exercising his rights under the First Amendment.1

The district court granted summary judgment to

Richey on the right to petition claim, and denied

summary judgment to Dahne on the retaliation claim,

holding that there were material questions of fact

related to that claim.

Dahne appeals, arguing that he is entitled to

qualified immunity on both claims. We affirm the

district court’s grant of summary judgment to Richey

on his right to petition claim, but reverse the district

court on qualified immunity grounds on his retaliation

claim.

We previously reviewed this case at the motion to

dismiss stage, holding that Richey had stated a plausible claim

for relief. Richey v. Dahne, 624 F. App’x 525 (9th Cir. 2015).

Under the First Amendment, speech is

protected unless the speech falls under one of a few

narrowly defined categories of unprotected speech

such as fighting words, defamation, or obscenity.

R.A.V. v. City of St. Paul, 505 U.S. 377, 382-84 (1992).

We have previously held that “disrespectful language

in a prisoner’s grievance is itself protected activity

under the First Amendment.” Brodheim v. Cry, 584

F.3d 1262, 1271 (9th Cir. 2009) (citing Bradley v. Hall,

64 F.3d 1276, 1281-82 (9th Cir. 1995)). But to say that

a category of speech is protected does not mean that

all governmental limits on such speech are

unconstitutional. In Turner v. Safley, the United

States Supreme Court held that a prison regulation

that restricts inmates’ constitutional rights could be

constitutionally sound if it “is reasonably related to

legitimate penological interests.” 482 U.S. 78, 89

(1987). The standard under Turner requires that a

valid regulation must (1) be content neutral, (2)

logically advance proper goals such as institutional

security and safety, and (3) not be an exaggerated

response in relation to those goals. Id. at 93. The

Supreme Court later clarified that a prison regulation

is considered to be content neutral if its purpose is

“unrelated to the suppression of expression.”

Thornburgh v. Abbott, 490 U.S. 401, 415 (1989)

(quoting Procunier v. Martinez, 416 U.S. 396, 413

(1974)).

In Brodheim we held squarely that no

legitimate penological interest is served by prison

rules

prohibiting

disrespectful

language

grievances. Brodheim, 584 F.3d at 1273. We reasoned

that grievances were easy to insulate from other

prisoners and from those prison officials who are the

target of the grievance, so that disrespectful language

in a grievance did not raise any substantial security

concern. Id. “A prisoner’s statement in a grievance

need not have any more impact on prison security

through the maintenance of respect than the

prisoner’s unexpressed thoughts.” Id. (quoting

Bradley 64 F.3d at 1281).

Dahne contends that Brodheim clearly

established only that it would be unconstitutional to

punish a prisoner because of the content of the

grievance, and not that it was unconstitutional to

refuse the grievance because of that content. We reject

this contention. The holding of Brodheim is not as

narrow as Dahne contends. While it is true that

Brodheim involved a warning or threat against a

prisoner because of the content of a grievance,

limiting Brodheim to only those types of cases would

require that we ignore the Brodheim court’s

reasoning, and that we disregard the broader Frist

Amendment framework under Turner. Instead, we

consider that a correct reading of the scope of the

holding in Brodheim is that rules prohibiting

disrespectful language do not serve a legitimate

penological interest in the special context of prison

grievances. Under the Turner framework, a prison

may constrain the expression of prisoners for a noncontent-based legitimate penological reason, such as

avoiding hostilities or potential violence. But absent

such a legitimate penological reason, content-based

limitation

prisoner’s

expression

unconstitutional. Prisoners, just like those on the

outside, have and value their First Amendment

rights.

We clarify, however, that a prison official

merely requesting that a prisoner rewrite a grievance

is not a First Amendment violation. The prison could

and did have valid grounds to make such a request in

the interest of maintaining good relations between

prisoners and guards. But, the violation here occurred

when Dahne refused to allow the grievance to proceed

through the administrative process after Richey did

not rewrite it in a way that satisfied Dahne’s sense of

propriety. Functionally, allowing curtailment of the

prison’s grievance process in this way would mean

that only a grievance that conformed to Dahne’s

personal conception of acceptable content could get

meaningful review. That is the sort of content-based

discrimination that runs contrary to First

Amendment protections.

We also stress that the holding of Brodheim

relates only to the narrow category of cases dealing

with prison grievances. Nothing about Brodheim or

our holding today should be construed as suggesting

that prisoners have a right to publicly use

disrespectful language in the broader prison

environment. Such actions would plausibly raise

legitimate penological concerns related to the security

of guards and the desirability of maintaining

harmonious relationships between guards and

prisoners to the extent possible. Hence prisons will

often be justified in curtailing that sort of public

disrespectful behavior outside of the prison grievance

process.

Turning to Richey’s retaliation claim, we

hold that the district court erred by not granting

summary judgment to Dahne on qualified immunity

grounds. In Rhodes v. Robinson, we held that a

retaliation claim has five elements:

(1) An assertion that a state actor took some

adverse action against an inmate (2) because of

(3) that prisoner’s protected conduct, and that

such action (4) chilled the inmate’s exercise of

his First Amendment rights, and (5) the action

did not reasonably advance a legitimate

correctional goal.

408 F.3d 559, 567-68 (9th Cir. 2005). Neither our prior

case law nor that of the Supreme Court has clearly

established that merely refusing to accept a grievance

for processing is a retaliatory adverse action. Richey

claims that under Brodheim an “adverse regulatory

action” can count as a retaliatory adverse action. And

he argues that refusing to process the grievance is an

adverse regulatory action. However, in context in

Brodheim the “adverse regulatory action” language

refers to some additional punitive action or threat of

punitive action over and above merely refusing to

accept the grievance. Brodheim, 584 F.3d at 1270-71.

Because of the lack of case law addressing the issue of

whether not processing a grievance could be viewed as

retaliation, it is not the case that “every reasonable

official would have understood” that refusing a

grievance violates a prisoner’s right against

retaliation. Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011). We reverse the district court and grant

summary judgment for Dahne on Richey’s retaliation

claim on qualified immunity grounds.

AFFIRMED IN PART AND REVERSED IN PART.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

THOMAS W.S.

RICHEY,

CASE NO. C12-5060BHS

Plaintiff, ORDER ADOPTING IN

D. DAHNE,

Defendant.

PART AND MODIFYING IN

PART REPORT AND

RECOMMENDATION,

GRANTING IN PART AND

DENYING IN PART

PLAINTIFF’S MOTION FOR

PARTIAL SUMMARY

JUDGMENT, AND

DENYING DEFENDANT’S

MOTION FOR SUMMARY

JUDGMENT

This matter comes before Court on the Report

and Recommendation (“R&R”) of the Honorable

Karen L. Strombom, United States Magistrate Judge

(Dkt. 59), Plaintiff Thomas W.S. Richey’s (“Richey”)

objections (Dkt. 62), and Defendant Dennis Dahne’s

(“Dahne”) objections (Dkt. 63). The Court has

considered the pleadings filed in support of and in

opposition to the motions and the remainder of the file

and hereby rules as follows:

I. PROCEDURAL AND FACTUAL

BACKGROUND

Originally, both parties asserted that the facts

were undisputed. Dkt. 46 at 1-2; Dkt. 52 at 1. Now,

however, it appears that some material facts are

disputed.

Richey, an inmate, submitted a prison

grievance that identified a prison officer as “an

extremely obese Hispanic female guard . . . .” Dkt. 47,

Declaration of Thomas WS Richey (“Richey Dec.”),

Exh. A. An officer, who is not a party to this

proceeding, declined to accept the grievance and,

instead, returned the grievance to Richey with and

instruction to rewrite it appropriately and resubmit it

within five days. Id. Richey rewrote portions of the

grievance, repeated the language quoted above, and

resubmitted the grievance. Id., Exh. B. The R&R

states that an unidentified officer refused to accept

the grievance and, instead, ordered Richey to rewrite

the grievance stating that “Hispanic female is adiquit

[sic]. Extremely obese is un-necessary [sic] and

inappropriate.” Dkt. 59 at 4. The record, however,

reflects that Dahne ordered Richey to rewrite the

grievance. Dahne declares as follows:

I directed Offender Richey to comply

with the previous rewrite instruction he had

gotten because the grievance contained so

much irrelevant, inappropriate, and borderline

threatening extra language. I told him to:

“Rewrite as directed. Hispanic female is

adequate [sic]. Extremely obese in unnecessary [sic] and inappropriate.” I did not

have room to include every single part of the

grievance that was not in accordance with the

OGP guidelines, but I believed a reasonable

person could understand that making repeated

references to a staff member’s weight and

talking about guards getting strangled have

nothing to do with an actual grievable issue and

are inappropriate.

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Dkt. 52-2 at 3-4. Dahne did not date this rewrite order.

Dkt. 70, Exh. 2.

On December 7, 2016, Richey submitted an

offender’s kite to Dahne asking if Dahne, as the

grievance coordinator, was going to process his

grievance. Id., Exh. 3. Dahne responded as follows:

“No, due to your decision not to rewrite as requested,

your

grievance

has

been

administratively

withdrawn.” Id. The Court was originally under the

impression that there was a rule that failure to

rewrite a grievance automatically resulted in an

administrative withdrawal of the grievance. After

further review of the record, however, it does not

appear that this is a mandatory rule. Instead, it

appears that the grievance coordinator may also grant

an extension of the timeframe to rewrite the grievance

or automatically appeal an initial grievance to the

next level. Dkt. 52-2 at 38-40. Regardless, Richey

asserts that Dahne failed to date the document

ordering Richey to rewrite his grievance and,

therefore, questions of fact exist whether five days

passed before Dahne considered the grievance

administratively withdrawn. Dkt. 70 at 4 (citing id.,

Exh. 2).

Furthermore, Richey has submitted evidence

that Dahne accepted a rewritten grievance dated

December 8, 2016 with the same identification

number as the original grievance. Id., Exh. 4. On this

grievance Dahne wrote that it “will be forwarded to

HQ as appeal of coordinators request for rewrite.” Id.

Richey contends that, if his response was procedurally

untimely and withdrawn, the grievance could not

have been forwarded as an appeal. Dkt. 70 at 5. This

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evidence appears to contradict Dahne’s claim that he

administratively withdrew Richey’s initial grievance.

These facts allegedly implicate two provision of

the Washington Department of Corrections’ (“DOC”)

Offender Grievance Program (“OGP”). First, if the

inmate’s “complaint contains profane language,

except when used as a direct quote,” the grievance

form is returned “unprocessed with a notation to

rewrite it.” Dkt. 52-2 at 33. Second, the Grievance

Program Manager and Dahne declare that if an

inmate “does not follow the rewrite instructions

within the required timeframe” – within five days of

receipt of those instructions – “the matter is

considered administratively withdrawn, which is the

procedural determination made when OGP deadlines

are missed without reason for the delay.” Dkt. 52-1

at 5; Dkt. 52-2 at 4.

On December 6, 2012, the Court granted

Dahne’s motion to dismiss Richey’s claim for failure to

state a claim. Dkt. 21. In reversing this Court’s order

granting Dahne’s motion to dismiss, the Ninth Circuit

concluded that Richey had stated a plausible claim for

violation of his First Amendment right to grieve and

retaliation for exercising that right and, regarding the

defense of qualified immunity, provided as follows:

Dahne seeks qualified immunity because his

“actions and decisions were based on his

application of Department policy and his

attempt to have Richey comply with the

grievance program’s requirements so that

Richey’s complaint could be addressed.” At the

motion to dismiss stage, however, “it is the

defendant’s conduct as alleged in the complaint

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that is scrutinize for ‘objective legal

reasonableness,’ ” Behrens v. Pelletier, 516 U.S.

299, 309 (1996) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 819 (1982)) (emphasis in

original), and Richey’s complaint says nothing

about whether the prison had any language

policy, what that policy was, and how

consistently that policy was enforced. Dahne is

therefore not entitled to qualified immunity at

this time.

Richey v. Dahne, 624 F. App’x 525, 526 (9th Cir. 2015).

On June 27, 2016, Judge Strombom issued the

R&R recommending that the Court deny Richey’s

motion for summary judgment and grant Dahne’s

motion for summary judgment because Dahne is

entitled to qualified immunity. Dkt. 59. Judge

Strombom concluded (1) that material questions of

fact exist on Richey’s First Amendment claim, Dkt. 59

at 14, (2) that material questions of fact exist on

Richey’s retaliation claim, Id. at 16, and (3) Dahne is

entitled to qualified immunity because Richey’s

constitutional rights were not clearly established, Id.

at 19.

On July 7, 2016, Richey filed objections arguing

that his rights were clearly established at the time of

the alleged violation. Dkt. 62. On July 18, 2016,

Dahne responded. Dkt. 64. On July 22, 2016, Richey

replied. Dkt. 66.

On July 11, 2016, Dane filed objections arguing

that there are no disputed issues of material fact and

that Dahne is entitled to summary judgment that he

did not violate any of Richey’s constitutional rights.

Dkt. 63. On July 18, 2016, Richey responded. Dkt. 65.

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On September 14, 2016, the Court issued an

order adopting in part and modifying in part the R&R,

granting Dahne’s motion for summary judgment, and

denying Richey’s motion for summary judgment. Dkt.

68. In relevant part, the Court found that, out of the

three interactions between Richey and corrections

officers regarding his grievances, Dahne personally

participated in only one of those interactions. Dkt. 68

at 2. The Clerk then entered judgment in favor of

Dahne against Richey. Dkt. 69.

On September 19, 2016, Richey filed a motion

for relief from judgment arguing that Dahne

personally participated in two of the three

interactions. Dkt. 70. On December 15, 2016, the

Court granted Richey’s motion and vacated its

previous order and the judgment. Dkt. 73.

II. DISCUSSION

Standard of Review

The district judge must determine de novo any

part of the magistrate judge’s disposition that has

been properly objected to. The district judge may

accept, reject, or modify the recommended disposition;

receive further evidence; or return the matter to the

magistrate judge with instruction. Fed. R. Civ. P.

72(b)(3).

In this case, the parties have properly objected

to the three main conclusions set forth in the R&R.

Thus, the Court will conduct a de novo review of the

motions.

Summary Judgment Standard

Summary judgment is proper only if the

pleadings, the discovery and disclosure materials on

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file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is

entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c).

In this case, the Court agrees with Dahne that

the material facts are undisputed and the matter

turns on questions of law. Thus, the Court declines to

adopt the R&R to the extent that it concludes that

material questions of fact exist.

42 U.S.C. § 1983

Section 1983 is a procedural device for

enforcing constitutional provisions and federal

statutes; the section does not create or afford

substantive rights. Crumpton v. Gates, 947 F.2d 1418,

1420 (9th Cir. 1991). In order to state a claim under

section 1983, a plaintiff must demonstrate that (1) the

conduct complained of was committed by a person

acting under color of state law and that (2) the conduct

deprived a person of a right, privilege, or immunity

secured by the Constitution or by the laws of the

United States. Parratt v. Taylor, 451 U.S. 527, 535

(1981), overruled on other grounds by Daniels v.

Williams, 474 U.S. 327 (1986).

Qualified immunity shields government

officials from civil liability unless a plaintiff

demonstrates: “(1) that the official violated a statutory

or constitutional right, and (2) that the right was

‘clearly established’ at the time of the challenged

conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080

(2011). The Court has discretion to decide “which of

the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances

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in the particular case at hand.” Pearson v. Callahan,

555 U.S. 223, 236 (2009).

Constitutional Violations

Richey asserts two constitutional claims. First,

Richey asserts that his constitutional right of access

to the courts was infringed. The Ninth Circuit has

held “that prison official may not punish an inmate

merely for using ‘hostile, sexual, abusive or

threatening’ language in a written grievance.”

Bradley v. Hall, 64 F.3d 1276, 1282 (9th Cir. 1995). It

has also “held that disrespectful language in a

prisoner’s grievance is itself protected activity under

the First Amendment.” Richey v. Dahne, 624 Fed.

Appx. 525 (9th Cir. 2015) (quoting Brodheim v. Cry,

584 F.3d 1262, 1271 (9th Cir. 2009)). In other words,

“applying the Turner v. Safley, 482 U.S. 78, 107 S.Ct.

2254, 96 L.Ed.2d 64 (1987), factors for assessing the

constitutionality of a prison regulation, a prison may

not take or threaten adverse action against an inmate

for using disrespectful language in a grievance.”

Richey, 624 Fed. Appx. at 525 (citing Brodheim,

584 F.3d at 1272-73).

In this case, Richey has met his burden to show

a violation of his constitutional right. Dahne took the

adverse action of ordering Richey to rewrite his

grievance because of inappropriate language in the

grievance. Richey, 624 Fed. Appx. at 525 (citing

Brodheim, 584 F.3d at 1272-73). Despite Dahne’s

numerous arguments to the contrary, it does not get

much clearer than the Ninth Circuit reiterating the

law in an earlier order in the same case. Moreover, the

Court adopts the R&R’s rejection of each of Dahne’s

arguments on this issue. Dkt. 72 at 14. The Court,

however, rejects the ultimate conclusion that Dahne

has failed to establish an absence of material

questions of fact. Instead, the issue is one of law, and

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Richey’s motion and denies Dahne’s motion on

Richey’s First Amendment freedom of speech claim.

Second, Richey asserts that Dahne retaliated

against Richey because Richey exercised his first

amendment rights. “Retaliation against prisoners for

their exercise of [their First Amendment] right is

itself a constitutional violation, and prohibited as a

matter of ‘clearly established law.’ ” Brodheim, 584

F.3d at 1269. There are five elements to a retaliation

claim:

(1) An assertion that a state actor took

some adverse action against an inmate (2)

because of (3) that prisoner’s protected conduct,

and that such action (4) chilled the inmate’s

exercise of his First Amendment rights, and (5)

the action did not reasonably advance a

legitimate correctional goal.

Id. (quoting Rhodes v. Robinson, 408 F.3d 559, 566

(9th Cir. 2005)).

In this case, Richey has met his burden on each

element of his claim. Dahne took the adverse action of

administratively withdrawing Richey’s grievance.

Although Dahne argues that ordering an inmate to

rewrite a grievance is not an adverse action, the R&R

sufficiently rejects this argument. Dkt. 59 at 15.

“Outside the prison context, we have never held that

a plaintiff must establish an explicit threat to prevail

on a retaliation claim. . . . We see no reason why a

different standard should apply in this setting.”

Brodheim, 584 F.3d at 1270. Richey has submitted

sufficient evidence to create questions of fact whether

failing to accept a grievance and being precluded from

accessing the court would follow his failure to comply

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with Dahne’s orders. Thus, no matter how egregious

the underlying conduct alleged in the grievance, an

inmate would have no recourse if he allegedly, and in

complete discretion of the grievance coordinator,

insulted a guard in the written grievance.

As for causation, Richey has shown that

questions of fact also exist on this issue. In the

offender’s kite, Dahne wrote that, due to Richey’s

decision not to rewrite as Dahne had ordered Richey

to do, Dahne had administratively withdrawn the

grievance. Dkt. 70 at 13. While Dahne asserts that he

was following the procedural requirement of

administrative withdrawal, Richey has submitted

sufficient evidence to show that material questions of

fact exist for trial. For example, Dahne’s request to

rewrite is not dated, making it unclear when the fiveday response deadline began and ended. Richey also

claims that he did submit a “rewrite” wherein he

refused to rewrite his grievance. In light of this

evidence, the Court concludes that material questions

of fact preclude summary judgment.

Regarding the chilling of an inmate’s free

speech, Dahne’s arguments are without merit. In the

Ninth Circuit, “a prisoner’s fundamental right of

access to the courts hinges on his ability to access the

prison grievance system.” Bradley, 64 F.3d at 1279.

The Ninth Circuit has “held that an objective

standard governs the chilling inquire; a plaintiff does

not have to show that ‘his speech was actually

inhibited or suppressed,’ but rather that the adverse

action at issue ‘would chill or silence a person of

ordinary firmness from future First Amendment

activities.’ ” Brodheim, 584 F.3d at 1271. A reasonable

juror could conclude that repeatedly refusing to accept

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a grievance because it contains inappropriate

language would chill a person of ordinary firmness

from submitting additional grievances.

Regarding the final element, Richey “must

show that the challenged action ‘did not reasonably

advance a legitimate correctional goal.’ ” Brodheim,

584 F.3d at 1271 (quoting Rhodes, 408 F.3d at 568).

Richey has easily met this burden because Dahne has

failed to advance a legitimate goal. Dahne argues as

follows:

[P]rison officials have a legitimate penological

interest in requiring Richey, and all inmates, to

comply with the procedural requirements of the

grievance program. Prisons have a legitimate

penological interest in requiring that inmate

grievances contain only a straightforward

statement of concern about the one issue the

inmate is grieving and comply with deadlines.

If prisoners are able to flout the OGP’s

procedural rules and still demand that the

prison process their grievances, then the ability

of prisons to resolve disputes, maintain order

and respect, and enforce prison rules is

threatened.

Dkt. 52 at 21. Contrary to Dahne’s argument, the

Ninth Circuit has held that “a prison may not take or

threaten adverse action against an inmate for using

disrespectful language in a grievance.” Richey, 624

Fed. Appx. at 525 (citing Brodheim, 584 F.3d at 127273). Although Dahne also relies on the timing

deadlines, questions of fact exist whether Dahne

actually enforced the deadlines or withdrew the

grievance in retaliation for Richey’s failure to rewrite

19a

the grievance as ordered. Therefore, the Court denies

both motions for summary judgment on this aspect of

Richey’s retaliation claim because material questions

of fact exist for trial.

Clearly Established Law

Government officials may be immune from

constitutional violations if the law was not clearly

established at the time of the incident. Ashcroft, 131

S. Ct. at 2080.

In this case, the R&R concludes that Dahne is

entitled to qualified immunity. Specifically, the R&R

concludes that

[w]hile at the time of the challenged conduct in

this case the Ninth Circuit had established that

inclusion of disrespectful language in a

grievance ‘is itself protected activity,’ it cannot

be said that instructing an inmate to rewrite a

grievance because of the inclusion thereof,

necessarily amounted to a violation of an

inmate’s First Amendment right to redress

grievances.

Dkt. 59 at 19. Contrary to this conclusion, the Court

has concluded that failure to accept a grievance

because of inappropriate or disrespectful language is

a question of law and not a question of fact. As such,

the law is clearly established on this issue because the

Ninth Circuit has held that “a prison may not take or

threaten adverse action against an inmate for using

disrespectful language in a grievance.” Richey, 624

Fed. Appx. at 525 (citing Brodheim, 584 F.3d at 127273). Dahne took the action of ordering a rewrite and

administratively withdrawing the grievance. The

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question becomes whether Dahne would objectively

know that his actions were “adverse” actions.

Anderson v. Creighton, 483 U.S. 635, 639 (1987)

(liability “turns on the ‘objective legal reasonableness’

of the action.”). The Court concludes that a reasonable

officer would know that either rejecting or

withdrawing a grievance because it included offensive

language was a constitutional violation.

In fact, the language from the Ninth Circuit

cases leaves almost no doubt on this issue. For

example, “a prisoner’s fundamental right of access to

the courts hinges on his ability to access the prison

grievance system.” Bradley, 64 F.3d at 1279. We hold

that “prison officials may not punish an inmate

merely for using ‘hostile, sexual, abusive or

threatening’ language in a written grievance.” Id. at

1282. Similarly, “[i]t is well-established that, among

the rights they retain, prisoners have a First

Amendment right to file prison grievances.”

Brodheim, 584 F.3d at 1269 (emphasis added). Under

these principles, the Court concludes that the

contours of Richey’s rights to file a grievance were

“ ‘sufficiently clear’ that every ‘reasonable official

would [have understood] that what he is doing

violates that right.’ ” Ashcroft, 563 U.S. at 741 (citing

Anderson, 483 U.S. at 640). Therefore, the Court

rejects Dahne’s request for qualified immunity on the

basis that the law was not clearly established.

Dahne, however, also argues that his “actions

and decisions were based on his application of

Department policy and his attempt to have Richey

comply with the grievance program’s requirements so

that Richey’s complaint could be addressed.” Dkt. 52

at 23. “The doctrine of qualified immunity shields

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public officials performing discretionary functions for

personal liability under certain circumstances.”

Grossman v. City of Portland, 33 F.3d 1200, 1208 (9th

Cir. 1994). “[W]hether an official protected by

qualified immunity may be held personally liable for

an allegedly unlawful official action generally turns

on the ‘objective legal reasonableness’ of the action,

assessed in light of the legal rules that were ‘clearly

established’ at the time it was taken.” Anderson v.

Creighton, 483 U.S. 635, 639 (1987) (citations omitted)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19

(1982)). “Unlike in many [qualified immunity] cases,

here the allegedly unconstitutional action undertaken

by the individual defendant consists solely of the

enforcement of an ordinance which was duly enacted

by the city council.” Grossman, 33 F.3d at 1209.

“Courts have accordingly held that the existence of a

statute or ordinance authorizing particular conduct is

a factor which militates in favor of the conclusion that

a reasonable official would find that conduct

constitutional.” Id.

As with most legal matters, there are no

absolutes here. On the one hand, an officer who

acts in reliance on a duly-enacted statute or

ordinance is ordinarily entitled to qualified

immunity. On the other, as historical events

such as the Holocaust and the My Lai massacre

demonstrate, individuals cannot always be held

immune for the results of their official conduct

simply because they were enforcing policies or

orders promulgated by those with superior

authority. Where a statue authorizes official

conduct which is patently violative of

fundamental constitutional principles, an

22a

officer who enforces that statute is not entitled

to qualified immunity. Similarly, an officer who

unlawfully enforces an ordinance in a

particularly egregious manner, or in a manner

which a reasonable officer would recognize

exceeds the bounds of the ordinance, will not be

entitled to immunity even if there is no clear

case law declaring the ordinance or the officer’s

particular conduct unconstitutional.

Id. at 1209-10.

In this case, Dahne asserts this doctrine with

respect to Richey’s retaliation claim. For example,

Dahne argues that “[c]onsistent with Department

policy, Dahne administratively closed the grievance

because Richey refused to comply with a rewrite

instruction within the required time period.” Dkt. 52

at 23. Richey, however, has submitted sufficient

evidence to create material questions of fact on this

action. The lack of a date on the rewrite order and

the December 8, 2011 grievance under the same

identification number undermine Dahne’s assertion

that he administratively withdrew Richey’s grievance

because of a lapsed deadline. Accordingly, the Court

denies Dahne’s request for immunity on this issue

because material questions of fact exist.

III. ORDER

Therefore, it is hereby ORDERED that the

Court adopts in part and modifies in part the R&R

(Dkt. 59), Richey’s motion for partial summary

judgment (Dkt. 46) is GRANTED in part and

DENIED in part, and Dahne’s cross-motion for

summary judgment (Dkt. 52) is DENIED. The parties

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shall meet and confer and submit a joint status report

regarding pretrial and trial deadlines.

Dated this 15th day of December, 2016.

s/ Ben H. Settle

BENJAMIN H. SETTLE

United States District Judge

24a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

THOMAS W.S.

RICHEY,

CASE NO. C12-5060BHS

Plaintiff, ORDER ADOPTING IN

D. DAHNE,

Defendant.

PART AND MODIFYING IN

PART REPORT AND

RECOMMENDATION,

DENYING PLAINITFF’S

MOTION FOR PARTIAL

SUMMARY JUDGMENT,

AND GRANTING

DEFEDNAT’S MOTION FOR

SUMMARY JUDGMENT

This matter comes before Court on the Report

and Recommendation (“R&R”) of the Honorable

Karen L. Strombom, United States Magistrate Judge

(Dkt. 59), Plaintiff Thomas W.S. Richey’s (“Richey”)

objections (Dkt. 62), and Defendant Dennis Dahne’s

(“Dahne”) objections (Dkt. 63). The Court has

reconsidered the pleadings filed in support of and in

opposition to the motions and the remainder of the file

and hereby rules as follows:

I. PROCEDURAL AND FACTUAL

BACKGROUND

The undisputed facts are fairly simple.1 Richey,

an inmate, submitted a prison grievance that

1 Both parties assert that there are no disputed issues of

material facts. Dkt. 46 at 1-2; Dkt. 52 at 1.

25a

identified a prison officer as “an extremely obese

Hispanic female guard . . . .” Dkt. 47, Declaration of

Thomas WS Richey (“Richey Dec.”), Exh. A. An officer,

who is not a party to this proceeding, declined to

accept the grievance and, instead, returned the

grievance to Richey with an instruction to rewrite it

appropriately and resubmit it within five days. Id.

Richey rewrote portions of the grievance, repeated the

language quoted above, and resubmitted the

grievance. Id., Exh. B. An officer, who is not a party to

this proceeding, refused to accept the grievance. Id.

Instead, the officer ordered Richey to rewrite the

grievance stating that “Hispanic female is adiquit

[sic]. Extremely obese is un-necessary [sic] and

inappropriate.” Id.

Richey failed to rewrite and resubmit the

grievance. Instead, Richey submitted an offender’s

kite to Dahne asking if Dahne, as the grievance

coordinator, was going to process his grievance. Id.,

Exh. C. Dahne responded as follows: “No, due to your

decision not to rewrite as requested, your grievance

has been administratively withdrawn.” Id.

These facts implicate two provisions of the

Washington Department of Corrections’ (“DOC”)

Offender Grievance Program (“OGP”). First, if the

inmate’s “complaint contains profane language,

except when used as a direct quote,” the grievance

form is returned “unprocessed with a notation to

rewrite it.” Dkt. 52-2 at 33. Second, if an inmate “does

not follow the rewrite instruction within the

required timeframe” – within five days of receipt

of those instruction – “the matter is considered

administratively

withdrawn,

which

the

procedural determination made when OGP deadlines

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are missed without reason for the delay.” Dkt. 52-1 at

1; Dkt. 52-2 at 4.

On December 6, 2012, the Court granted

Dahne’s motion to dismiss Richey’s claim for failure to

state a claim. Dkt. 21. In reversing this Court’s order

granting Dahne’s motion to dismiss, the Ninth Circuit

concluded that Richey had stated a plausible claim for

violation of his First Amendment right to grieve and

retaliation for exercising that right and, regarding the

defense of qualified immunity, provided as follows:

Dahne seeks qualified immunity because his

“actions and decisions were based on his

application of Department policy and his

attempt to have Richey comply with the

grievance program’s requirements so that

Richey’s complaint could be addressed.” At the

motion to dismiss stage, however, “it is the

defendant’s conduct as alleged in the complaint

that is scrutined for ‘objective legal

reasonableness,’ ” Behrens v. Pelletier, 516 U.S.

299, 309 (1996) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 819 (1982)) (emphasis in

original), and Richey’s complaint says nothing

about whether the prison had any language

policy, what that policy was, and how

consistently that policy was enforced. Dahne is

therefore not entitled to qualified immunity at

this time.

Richey v. Dahne, 624 F. App’x 525, 526 (9th Cir. 2015).

On June 27, 2016, Judge Strombom issued the

R&R recommending that the Court deny Richey’s

motion for summary judgment and grant Dahne’s

motion for summary judgment because Dahne is

27a

entitled to qualified immunity. Dkt. 59. Judge

Strombom concluded (1) that material questions of

fact exist on Richey’s First Amendment claim, Dkt. 59

at 14, (2) that material questions of fact exist on

Richey’s retaliation claim, Id. at 16, and (3) Dahne is

entitled to qualified immunity because Richey’s

constitutional rights were not clearly established, Id.

at 19.

On July 7, 2016, Richey filed objections arguing

that his rights were clearly established at the time of

the alleged violation. Dkt. 62. On July 18, 2016,

Dahne responded. Dkt. 64. On July 22, 2016, Richey

replied. Dkt. 66.

On July 11, 2016, Dahne filed objections

arguing that there are no disputed issues of material

fact and that Dahne is entitled to summary judgment

that he did not violate any of Richey’s constitutional

rights. Dkt. 63. On July 18, 2016, Richey responded.

Dkt. 65.

II. DISCUSSION

Standard of Review

The district judge must determine de novo any

part of the magistrate judge’s disposition that has

been properly objected to. The district judge may

accept, reject, or modify the recommended disposition;

receive further evidence; or return the matter to

the magistrate judge with instructions. Fed. R.

Civ. P. 72(b)(3).

In this case, the parties have properly objected

to the three main conclusions set for the in the R&R.

Thus, the Court will conduct a de novo review of the

motions.

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Summary Judgment Standard

Summary judgment is proper only if the

pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is

entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c).

In this case, the Court agrees with Dahne that

the material facts are undisputed and that matter

turns on questions of law. Thus, the Court declines to

adopt the R&R to the extent that it concludes that

material questions of fact exist.

42 U.S.C § 1983

Section 1983 is a procedural device for

enforcing constitutional provisions and federal

statues; the section does not create or afford

substantive rights. Crumpton v. Gates, 947 F.2d 1418,

1420 (9th Cir. 1991). In order to state a claim under

section 1983, a plaintiff must demonstrate that (1) the

conduct complained of was committed by a person

acting under color of state law and that (2) the conduct

deprived a persona of a right, privilege, or immunity

secured by the Constitution or by the laws of the

United States. Parratt v. Taylor, 451 U.S. 527, 535

(1981), overruled on other grounds by Daniels v.

Williams, 474 U.S. 327 (1986).

Qualified immunity shields government

officials from civil liability unless a plaintiff

demonstrates: “(1) that the official violated a statutory

or constitutional right and (2) that the right was

‘clearly established’ at the time of the challenged

conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080

29a

(2011). The Court has discretion to decide “which of

the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances

in the particular case at hand.” Pearson v. Callahan,

555 U.S. 223, 236 (2009).

In this case, Richey asserts a First Amendment

claim and a retaliation claim. To the extent that his

constitutional rights may have been violated, he has

simply failed to assert claims against the appropriate

defendants. Pursuant to the OGP, the grievance

coordinator may return a grievance to an inmate

when the “complaint contains profane language,

except when used as a direct quote.” Id. at 33.

Moreover, a grievance rewrite must be submitted

within five days of the directive to rewrite or the

grievance will be administratively withdrawn. Id.

at 4. Dahne didn’t promulgate this policy and has

limited discretion to act under this policy. Thus,

Richey’s claims should be asserted against the DOC,

not the officer enforcing a properly enacted policy. The

Ninth Circuit said as much when it stated that

“Richey has stated a plausible claim that his rights

were violated when the prison refused to process and

investigate his grievance . . . .” Richey, 624 F. App’x

525 (emphasis added). Moreover, Dahne raised this

issue on appeal, see id., and in his motion for summary

judgment, Dkt. 52 at 23-24. Accordingly, the Court

declines to adopt the rationale in the R&R on the issue

of qualified immunity and bases this order on the

analysis below.

“The doctrine of qualified immunity shields

public officials performing discretionary functions

from personal liability under certain circumstances.”

Grossman v. City of Portland, 33 F.3d 1200, 1208 (9th

30a

Cir. 1994). “[W]hether an official protected by

qualified immunity may be held personally liable for

an allegedly unlawful official action generally turns

on the ‘objective legal reasonableness’ of the action,

assessed in light of the legal rules that were ‘clearly

established’ at the time it was taken.” Anderson v.

Creighton, 483 U.S. 635, 639 (1987) (citations omitted)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19

(1982)). “Unlike in many [qualified immunity] cases,

here the allegedly unconstitutional action undertaken

by the individual defendant consists solely of the

enforcement of an ordinance which was duly enacted

by the city council.” Grossman, 33 F.3d at 1209.

“Courts have accordingly held that the existence of a

statue or ordinance authorizing particular conduct is

a factor which militates in favor of the conclusion that

a reasonable official would find that conduct

constitutional.” Id.

As with most legal matters, there are no

absolutes here. On the one hand, an officer who

acts in reliance on a duly-enacted statute or

ordinance is ordinarily entitled to qualified

immunity. On the other, as historical events

such as the Holocaust and the My Lai massacre

demonstrated, individuals cannot always be

held immune for the results of their official

conduct simply because they were enforcing

policies or orders promulgated by those with

superior authority. Where a statute authorizes

official conduct which is patently violative of

fundamental constitutional principles, an

officer who enforces that statute is not entitled

to qualified immunity. Similarly, an officer who

unlawfully enforces an ordinance in a

31a

particularly egregious manner, or in a manner

which a reasonable officer would recognize

exceeds the bounds of the ordinance, will not be

entitled to immunity even if there is no clear

case law declaring the ordinance or the officer’s

particular conduct unconstitutional.

Id. at 1209-10.

With regard to Richey’s First Amendment

claim, Dahne is entitled to qualified immunity. It is

undisputed that other prison guards instructed

Richey to rewrite his grievance to remove the

allegedly offensive language. Richey Dec. at ¶¶ 2-6.

Richey did not rewrite his November 17, 2011

grievance. Instead, Richey wrote an offender’s kite to

Dahne asking whether his previous grievance would

be processed, and Dahne responded by writing: “No,

due to your decision not to rewrite as requested, your

grievance has been administratively withdrawn.”

Id., ¶ 7; Id., Exh. 3. Based on these undisputed facts

from Richey, Dahne did not pass upon the content of

Richey’s speech and, instead, merely enforced the rule

that a failure to resubmit within five days constitutes

an administrative withdrawal. Even if this contentneutral rule somehow violates Richey’s First

Amendment rights, it was objectively reasonable for

Dahne to enforce the five-day rule that a grievance

that is not resubmitted is deemed withdrawn. In other

words, a requirement to resubmit a grievance within

five days is not “patently violative of fundamental

constitutional principles . . . .” Grossman, 33 F.3d. at

1209. Therefore, the Court grants Dahne’s motion for

32a

summary judgment because he is entitled to qualified

immunity.2

Similarly, with regard to Richey’s retaliation

claim, Richey argues that Dahne is liable because he

repeatedly rejected Richey’s grievances and

demanded that Richey censor his protected speech.

Dkt. 46 at 4. Dahne did not order Richey to rewrite his

grievance and, therefore, this part of Richey’s claim is

unsupported by the undisputed facts. Moreover,

Dahne enforced the rule that failure to resubmit a

grievance constitutes an administrative withdrawal.

The question then becomes: Would a reasonable

officer consider this policy as patently violative of

Richey’s right to be free from retaliation? Richey

argues that “the right to be free from retaliation [was]

clearly established in this Circuit years before the

time of [Dahne’s] conduct.” Dkt. 46 at 17 (citing

Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009)).

The Court does not disagree with the assertion that

the Circuit has clearly established some relevant law.

The Court, however, declines to take the next step in

the analysis that a reasonable officer should

have refused to enforce the five-day rule because it

patently violates Richey’s right to be free from

2 The Court takes no position as to the officers that

ordered Richey to rewrite his grievance or the official that

promulgated the enacted grievance policies because those

individuals are not parties to this action. See Dkt. 4. Moreover,

even though the Ninth Circuit and this Court question the

constitutionality of certain provisions in the OGP, Richey has not

asserted a claim to enjoin the institution from enforcing these

policies. Instead, Richey only seeks damages from an officer

enforcing a questionable policy, Dkt. 4 at 6, which, under these

circumstances, is barred by qualified immunity

33a

retaliation. There are definitely constitutional

problems with a system that sets up a hypothetically

endless loop of rejections and revisions. However,

failing to process a grievance that was not

resubmitted is an entirely different matter, and no

reasonable officer in Dahne’s position should have

declined to follow the five-day rule because it

obviously violated Richey’s rights. Therefore, the

Court concludes that Dahne is entitled to qualified

immunity on all of Richey’s claims.

II. ORDER

Therefore, it is hereby ORDERED that the

Court adopts in part and modifies in part the R&R

(Dkt. 59), Richey’s motion for partial summary

judgment (Dkt. 46) is DENIED, Dahne’s cross-motion

for summary judgment (Dkt. 52) is GRANTED, and

the Clerk shall enter JUDGMENT in favor of Dahne

and close this case.

DATED this 14th day of September, 2016.

s/ Ben H. Settle

BENJAMIN H. SETTLE

United States District Judge

34a

UNITD STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

THOMAS W.S.

RICHEY,

Case No. 3:12-cv-05060BHS-KLS

Plaintiff, REPORT AND

RECOMMENDATION

D. DAHNE,

Noted for

Defendants. July 15, 2016

This matter is before the Court on plaintiff ’s

motion for partial summary judgment and

defendant’s cross motion for summary judgment.

Plaintiff has sued defendant for violating his First

Amendment right to redress grievances and to be free

of retaliation.1 This matter has been referred to the

undersigned Magistrate Judge.2 For the reasons set

forth below, the undersigned recommends the Court

deny plaintiff ’s motion and grant defendant’s cross

motion.

FACTUAL AND PROCEDURAL HISTORY

The Washington State Department of

Corrections (DOC) has an Offender Grievance

Program (OGP) that has been in effect since the early

1980s.3 “Under the OGP, inmates may file grievances

on a wide range of issues relating to their

________________________

1 Dkt. 4, p. 5.

2 Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261

(1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a)(4).

3 Dkt. 52-1, p. 2.

35a

incarceration,” including “the actions of staff ” and

“retaliation by staff for filing grievances.”4 Inmates

are directed to write “a simple, straight-forward

statement of concern” within the space provided for

that purpose on a formal grievance form when writing

a grievance.5 When an inmate has “not written a

simple, straight-forward statement of concern” or the

inmate’s “complaint contains profane language,

except when used as a direct quote,” the grievance

form is returned “unprocessed with a notation to

rewrite it.”6

According to the DOC, the OGP is “critical to

the safety and security of DOC prisons.”7 This is

“because it promotes respectful, peaceful, and efficient

resolution of conflicts within the prisons,” and is

“possible because it promotes proper and effective

communication between staff and offenders in an

effort to resolve issues at the lowest possible level.”8

Because “[t]he use of derogatory and abusive language

towards staff in a written grievance establishes a

hostile and combative” environment, “undermines the

conciliatory goals of the” OGP, and “detracts from the

integrity of the grievance system,” DOC grievance

coordinators “sometimes give rewrite instructions

asking for the removal of [such] language that has no

bearing on the offender’s complaint.”9 When this

_______________________

4 Id. at p. 3.

5 Dkt. 52-2, p. 30.

6 Id. at p. 33.

7 Dkt. 52-1, p. 4.

8 Id. at pp. 4-5.

9 Id. at pp. 5-6.

36a

happens, the inmate “is directed to rewrite the

grievance without the derogatory or abusive language

where possible, based on what a reasonable person

would know and understand to be derogatory or

abusive.”10

“Outside the four corners of a written

grievance, the [ DOC] has the authority to infract and

disciplines [sic] offenders who use abusive language,

harassment, or other offensive behavior directed

against staff.”11 If an inmate “does not follow the

rewrite instruction within the required timeframe” –

within five days of receipt of those instructions – “the

matter is considered administratively withdrawn,

which is the procedural determination made when

OGP deadlines are missed without reason for the

delay.”12 An inmate, however, “can submit another

grievance on the issue even if [a grievance] has been

administratively withdrawn.”13

At all times relevant to this matter, plaintiff

was an inmate at the DOC’s Stafford Creek

Corrections Center (SCCC).14 On November 11, 2011,

plaintiff submitted a written grievance in which he

asserted that:

On 11-10-11, an extremely obese Hispanic

female guard on [the Intensive Management

_____________________________

10 Id. at p. 7.

11 Id. at p. 6.

12 Id. at p. 5; Dkt. 52-2, p. 4.

13 Dkt. 52-2, p. 4.

14 Dkt. 4.

37a

Unit (IMU)]’s 2nd shift verbally corrected me

from turning after stepping back from my cell.

On the way along the tier, she tugged and shook

my arm and asked me if I heard her. I said, “I’m

not deaf. I heard you.” On the way down the

steps, she told me not to pull her (I wasn’t). I

rolled my eyes and said, “Here we go.” I have

previously been subject to abusive treatment

from this unprofessional obese guard. She has

taken my right to a shower on previous

occasions because I commented about her need

to diet. After I said, “Here we go,” she pulled on

my arm painfully and told me to go back to my

cell. She denied me of my right to yard and to a

shower. Once in my cell, in natural

exasperation, I expelled the statement, “son of

a bitch.” She heard this and claimed I called her

a bitch and then denied me a shower roll. She

denied me these things without a hearing or

due process. If she had a problem with my

behavior she could verbally correct me or

infract me. She has no authority to deprive me

of the right to a shower and clean clothes

without a hearing of some sort. She is abusing

her position of authority. It isn’t my problem

that she is so obese, she holds a grudge over my

previous comments about her enormous girth.

It is no wonder why guards are assaulted and

even killed by some prisoners. When guards

like this fat Hispanic female guard abuse their

position as much as they abuse their caloric

intake, it can make prisoners less civilized then

myself to resort to violent behavior in

38a

retaliation. She is a danger to the orderliness

and security of the prison.[15]

In terms of a suggested remedy, plaintiff wrote:

The guard in this incident should be

reprimanded and educated. She should receive

a staff misconduct report. She needs to learn

that she cannot deprive prisoners of their right

to a shower or clean clothes based on her

whim.[16]

On November 15, 2011, a DOC employee issued a

written response to the above grievance on behalf of

defendant, who is the grievance coordinator at the

SCCC, stating that plaintiff needed to “[r]ewrite –

appropriately,” and “[j]ust stick to the issue of what

happened, when, who was involved.”17

Two days later, plaintiff submitted a second

grievance in which he asserted:

On 11-10-11, an extremely obese Hispanic

female guard (who) on IMU’s 2nd shift (when)

verbally corrected me from turning after I

stepped back from my cell. On the way along

the tier, she repeatedly asked if I heard her

instruction. I said, “I’m not deaf. I heard you.”

On the way down the steps, she told me not to

pull her ( I wasn’t). I rolled my eyes and said,

_______________________

15 Dkt. 47, p.4.

16 Id.

17 Id.

39a

“Here we go again.” ( I have previously been

subject to unprofessional conduct from this

extremely obese Hispanic IMU 2nd shift guard

before ( I don’t know her name). The guard then

decided to take my yard and shower (what

happened ). Once in my cell, I remarked “son of

a bitch” in exasperation. She claimed I called

her a bitch and then denied me a clean shower

roll. She denied me yard, my right to a shower,

and a shower roll without due process or proper

reason or justification. If she has a problem

with my behavior, she can infract me. She’s not

allowed to punish me on whim by depriving me

of my right to a shower.

It is no wonder why guards are slapped

and strangled by some prisoners. When guards

like this obese female Hispanic guard abuse

their position as much as they agues their

caloric intake, it can make prisoners less

civilized than myself to resort to violence in

retaliation. She is a threat to the orderliness

and security of the prison. THIS GRIEVANCE

WHAT HAPPENED WHEN IT HAPPENED,

AND WHO WAS INVOLVED. FILE AND

PROCESS IT!!![18]

In regard to a suggested remedy, plaintiff stated that

“[t]he guard should be reprimanded and receive a staff

misconduct report,” and that “[s]he needs to learn that

she can’t deprive prisoners of their basic rights

_________________________

18 Id. at p. 5 (emphasis in original).

40a

without justification that is reasonable.”19 Again, a

DOC employee other than defendant provided the

following written response:

Rewrite as directed. Hispanic Female is adiquit

(sic). Extremely Obese is un-necessary and

inapprapriate (sic).[20]

On December 7, 2011, plaintiff submitted an

offender’s kite, in which he wrote:

ARE YOU GOING TO PROCESS MY

PROPERLY SUBMITTED GRIEVANCE OR

WHAT? I’M NOT REWRITING IT SO DO

YOUR JOB AND PROCESS IT.21

The next day defendant responded by writing: “No,

due to your decision not to rewrite as requested, your

grievance has been administratively withdrawn.”22

Shortly thereafter, plaintiff filed a civil rights

complaint in this Court under 42 U.S.C. § 1983,

alleging defendant violated his First Amendment

right to redress grievances and to be free of

retaliation.23 Defendant moved to dismiss plaintiff ’s

complaint on the basis of failure to exhaust

administrative remedies, failure to state a claim upon

which relief may be granted, and qualified

_________________________

19 Id.

20 Id.; Dkt. 52-2, p. 3.

21 Dkt. 47, p. 6.

22 Id.

23 Dkt. 4, p. 5.

41a

immunity.24 The Court granted defendant’s motion,

finding plaintiff failed to allege a plausible claim for

relief, in that he did not allege facts to show he

engaged in protected conduct or that his First

Amendment rights had been chilled.25 The Court

further found plaintiff failed to allege that his right to

redress his grievances had been chilled by defendant’s

refusal to accept his grievance.26

Plaintiff appealed the Court’s decision, and the

Ninth Circuit reversed noting that it had “previously

held that disrespectful language in a prisoner’s

grievance is itself protected activity under the First

Amendment.”27 The Ninth Circuit went on to note

that while “[t]he prison has a legitimate penological

interest in encouraging ‘respect by inmates toward

staff and other inmates, and rehabilitation of inmates

through insistence of their use of socially acceptable

ways of solving their problems,’ . . . ‘the link between

this important purpose and the disrespect rules as

applied to formal written grievances is weak.’ ”28 In

concluding that plaintiff had “stated a plausible claim

that his rights were violated when the prison refused

_________________________

24 Dkt. 12.

25 Dkt. 21, pp. 3-4.

26 Id. at p. 4.

27 Richey v. Dahne, No. 12-36045, December 8, 2015, p. 2

(Dkt. 29) (quoting Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir.

2009) (citing Bradley v. Hall, 64 F.3d 1276, 1281-82 (9th Cir.

1995))).

28 Id. (quoting Bradley, 64 F.3d at 1280-81).

42a

to process and investigate his grievance because it

contained ‘objectionable’ language describing the

prison guard as ‘extremely obese,’ ” the Ninth Circuit

re-emphasized its prior holdings in Brodheim and

Bradley that under Turner v. Safley, “a prison may

not take or threaten adverse action against an inmate

for using disrespectful language in a grievance.”29

In his motion for partial summary judgment,

plaintiff asserts judgment should be made in his favor

“on the initial claim” contained in his complaint.30

Plaintiff did file a motion requesting leave to file a

supplemental complaint containing additional claims,

but that motion subsequently was denied.31 Thus,

plaintiff ’s First Amendment right to redress

grievances and retaliation claims are the only ones

currently before the Court. As such, his motion is

really one for complete rather than partial summary

judgment. Defendant argues summary judgment in

his favor is appropriate, because plaintiff has failed to

establish a valid First Amendment violation or

retaliation claim, and because defendant is entitled to

qualified immunity. While there are genuine issues of

fact as to whether a valid First Amendment or

retaliation claim exists, summary judgment in favor

_________________________

29 Id. (citing 482 U.S. 78 (1987); 584 F.3d at 1272-73; 64

F.3d at 1279-81).

30 Dkt. 46, p. 1.

31 Dkt. 43; Dkt. 54.

43a

of defendant is proper based on qualified immunity,

and therefore the undersigned recommends the Court

find for defendant on this basis.

DISCUSSION

Summary judgment shall be rendered if the

pleadings, exhibits, and affidavits show that there is

no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of

law.32 In deciding whether summary judgment should

be granted, the Court “must view the evidence in the

light most favorable to the nonmoving party,” and

draw all inferences “in the light most favorable” to

that party.33 When a summary judgment motion is

supported as provided in Fed. R. Civ. P. 56, an adverse

party may not rest upon the mere allegations or

denials of his pleading, but his or her response, by

affidavits or as otherwise provided in Fed. R. Civ. P.

56, must set forth specific facts showing there is a

genuine issue for trial.34

If the nonmoving party does not so respond,

summary judgment, if appropriate, shall be rendered

against that party.35 The moving party must

demonstrate the absence of a genuine issue of fact for

________________________

32 Federal Rule of Civil Procedure (Fed. R. Civ. P.) 56(c).

33 T.W. Electrical Serv., Inc. v. Pacific Electrical

Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir. 1987).

34 Fed. R. Civ. P. 56(e)(2).

35 Id.

44a

trial.36 Mere disagreement or the bald assertion that

a genuine issue of material fact exists does not

preclude summary judgment.37 A “material” fact is

one which is “relevant to an element of a claim or

defense and whose existence might affect the outcome

of the suit,” and the materiality of which is

“determined by the substantive law governing the

claim.”38

Mere “[d]isputes over irrelevant or unnecessary

facts,” therefore, “will not preclude a grant of

summary judgment.”39 Rather, the nonmoving party

“must produce at least some ‘significant probative

evidence tending to support the complaint.’ ”40 “No

longer can it be argued that any disagreement about

a material issue of fact precludes the use of summary

judgment.”41 In other words, the purpose of summary

judgment “is not to replace conclusory allegations of

the complaint or answer with conclusory allegations

of an affidavit.”42

________________________

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257

(1986).

California Architectural Building Products, Inc. v.

Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).

38 T.W. Electrical Serv., 809 F.2d at 630.

39 Id.

40 Id. (quoting Anderson, 477 U.S. at 290).

41 California Architectural Building Products, Inc., 818

F.2d at 1468.

42 Lujan v. National Wildlife Fed’n, 497 U.S. 871, 888

(1990).

45a

Plaintiff ’s First Amendment Claim

“Prisoners have a First Amendment right to file

prison grievances.”43 Prison authorities thus are

precluded “from penalizing a prisoner for exercising”

that right.44 As noted above, the Ninth Circuit has

consistently held – including in the context of this

case – that “disrespectful language in a prisoner’s

grievance is itself protected activity under the First

Amendment.”45 Prison officials, therefore, “may not

punish an inmate merely for using ‘hostile, sexual,

abusive or threatening’ language in a written

grievance.”46

Defendant does not disagree that prison

officials “may not take or threaten adverse action

against an offender for disrespectful language in a

grievance,” but argues that they “can require that

inmates follow the grievance program rules, ask for

rewritten grievances when necessary for their

resolution, and deem grievances abandoned or

administratively withdrawn when procedural rules

such as deadlines are not followed.”47 In so arguing,

defendant relies on Ninth Circuit and other court

cases holding that inmates have no right to choose

specific grievance procedures or how their concerns

are presented to prison officials.

________________________

43 Brodheim, 584 F.3d at 1269.

44 Bradley, 64 F.3d at 1279.

45 Richey, No. 12-36045, at p. 2 (quoting Brodheim, 584

F.3d at 1271 (citing Bradley, 64 F.3d at 1281-82)).

46 Bradley, 64 F.3d at 1282.

47 Dkt. 52, p. 11.

46a

Plaintiff, however, is not arguing that he has a

right to choose the specific grievance procedure he has

to follow, that he should not have to file a written

grievance, or that he should be able to present his

concerns outside the regular grievance process. Nor is

he claiming that “he should be allowed to write

whatever he wishes in a grievance.”48 Rather, plaintiff

is alleging that by requiring him to rewrite his

grievance defendant has impermissibly infringed on

his First Amendment right to seek redress. This is

substantively different from those cases that

defendant relies on, wherein the plaintiffs were

challenging the procedures themselves.49 Indeed,

none of those cases concerned a First Amendment

claim.50 Defendant cites Pell v. Procunier as well, but

cites it for the uncontroversial proposition that not all

First Amendment rights are consistent with the

status of prisoner.51 Further, that case involved the

right of access to the press and not that of prisoners to

redress grievances.52

The undersigned also rejects defendant’s

argument that requiring plaintiff to rewrite his

grievance is merely an administrative act on the part

of the prison, and cannot itself constitute an “adverse

________________________

48 Id.

49 Id. (citing Ramirez v. Galaza, 334 F.3d 850 (9th Cir.

2003); Mann v. Adams, 855 F.3d 639 (9th Cir. 1988); Pavey v.

Conley, 663 F.3d 899 (7th Cir. 2011)).

50 Id.

51 Dkt. 52, p. 12.

52 Pell, 417 U.S. 817 (1974).

47a

action” or punishment. In Bradley, the Ninth Circuit

rejected the prison’s argument that “the disrespect

rules” at issue there “do not hinder a prisoner from

filing a grievance or suit, but merely from using

inappropriate language within the grievance itself.”53

The Ninth Circuit went on to explain:

We are not persuaded by the [prison’s]

argument that punishing a prisoner for the

content of his grievance does not burden his

ability to file a grievance. From the prisoner’s

point of view, the chilling effect is the same.

Whether the content of the grievance or the act

of filing the grievance is deemed to be the actus

reus of the offense, the prisoner risks

punishment for exercising the right to

complain.[54]

While a violation of the disrespect rules at issue in

Bradley could result in a citation as opposed to a

directive to rewrite the grievance, unless plaintiff

agrees to rewrite his grievance to exclude the

protected language at issue in this case, that

grievance will not be accepted. In other words, he will

be prevented from filing his grievance for engaging in

constitutionally protected activity. This certainly

could amount to the type of adverse action or

punishment by prison officials the Ninth Circuit has

found to be precluded under the First Amendment. As

such, a genuine issue of fact exists here making

summary judgment on this basis inappropriate.

________________________

53 64 F.3d at 1279 (emphasis in original); see also Richey,

No. 12-36045, at p. 3.

54 Bradley, 64 F.3d at 1279.

48a

Defendant attempts to distinguish Bradley

on the basis that it concerned “an absolute prohibition

disrespectful

language

all

prison

communications.”55 The Ninth Circuit did reject the

prison’s argument “that to permit the utterance of

disrespectful language in any form at any time would

result in a total breakdown of prison security and

discipline.”56 But the same reasoning the Ninth

Circuit used in Bradley to find a restriction on the

content of a grievance can constitute an impermissible

chilling of an inmate’s First Amendment rights,

applies here. First, similar to the regulation at issue

in that case, the OGP prohibits use of profane

language unless it is a direct quote. Second, in

Brodheim, the Ninth Circuit found that reasoning

applied equally to a prison official’s warning to an

inmate to be careful about what he writes in his

grievance, even though no actual prison regulation

appeared to be implicated.57 Even more on point, the

Ninth Circuit in Richey – again in the context of this

case – expressly rejected defendant’s attempt to

distinguish Bradley on this basis.58

Equally without merit is defendant’s assertion

that the Ninth Circuit’s concern in Bradley with the

weakness of “the link” between the important

governmental interest “in the peaceable operation of

the prison” and “the respect rules as applied to formal

________________________

55 Dkt. 52, p. 12.

56 Bradley, 64 F.3d at 1281 (emphasis in original).

57 Brodheim, 584 F.3d at 1272-73.

58 No. 12-36045, at p. 3.

49a

written grievances,”59 is not at issue here. “Prison

regulations that infringe a prisoner’s constitutional

right are valid so long as they are ‘reasonably related

to legitimate penological interests.’ ”60 In Bradley, the

Ninth Circuit found no such reasonable relation

existed, explaining that “[i]f a line between honest,

unabashed airing of a grievance and ‘hostile, . . . [or]

abusive’ language exists, it is a hazy one, leaving the

aggrieved prisoner guessing whether he will be

punished for what he has said in his formal prison

complaint.”61

Defendant once more attempts to distinguish

Bradley on the basis that while the Ninth Circuit’s

“concern was predicated on the notion that offenders

could be punished for falling on the wrong side of that

line,” under the OGP “offenders are encouraged to

speak openly with the grievance coordinator or the

responding staff member about rewrite instructions

and . . . there is no punishment or disadvantage

associated with” such instructions.62 As explained

above though, prohibiting an inmate from going

forward with filing his grievance unless he rewrites it

so as to exclude language found to be inappropriate or

disrespectful, certainly could be deemed to be an

adverse action and/or punishment. Thus, defendant

has failed to show the absence of a genuine issue of

________________________

59 Bradley, 64 F.3d at 1281.

60 Bradley, 64 F.3d at 1279 (quoting

at 89).

61 Id. at 1281.

62 Dkt. 51, p. 12.

Turner, 482 U.S.

50a

material fact in regard to plaintiff ’s First Amendment

claim here as well.

Lastly, defendant argues that under Turner,

the OGP’s written grievance guidelines are a

permissible limitation on plaintiff’s First Amendment

rights. The Supreme Court identified four factors in

Turner district courts are to “consider when

determining the reasonableness of a prison rule.”63

Those factor are:

1) whether there is a “valid, rational connection

between the prison regulation and the

legitimate governmental interest put forward

to justify it”; 2) “whether there are alternative

means of exercising the right that remain

open to prison inmates”; 3) “the impact

accommodation of the asserted constitutional

right will have on guards and other inmates

and on the allocation of prison resources

generally”; and 4) the “absence of ready

alternatives” or, in other words, whether the

rule at issue is an “exaggerated response to

prison concerns.”[64]

Defendant relies on the Supreme Court’s decision in

Woodford v. Ngo, to argue that “[p]risons have a

legitimate penological interest in requiring that

inmate

grievances

contain

straightforward

statements of offenders’ concerns and do not abuse or

________________________

63 Bradley, 64 F.3d at 1279 (citing 482 U.S. at 89-90).

64 Id. at 1279-80 (quoting 482 U.S. at 89-90).

51a

implicitly threaten staff.”65 But this is not what that

case stands for. Rather, in upholding the requirement

of exhaustion of administrative remedies, the

Supreme Court merely pointed out that such a

requirement “promotes efficiency,” since “[c]laims

generally can be resolved much more quickly and

economically in proceedings before the agency than in

litigation in federal court.”66

As discussed above, furthermore, although a

prison does have a “legitimate penological interest in

encouraging ‘respect by inmates toward staff . . . and

rehabilitation of inmates through insistence on their

use of socially acceptable ways of solving problems,”

as the Ninth Circuit has consistently noted, “ ‘the link

between this important purpose and the disrespect

rules as applied to formal written grievances is

weak.’ ”67 Defendant goes on to argue that the OGP’s

guidelines on written grievances satisfy the other

Turner factors. But as the Supreme Court has

emphasized:

First and foremost, “there must be a ‘valid,

rational connection’ between the prison

regulation and the legitimate [and neutral]

governmental interest put forward to justify it.”

If the connection between the regulation and

the asserted goal is “arbitrary or irrational,”

________________________

65 Dkt. 52, p. 13 (citing 548 U.S. 81, 89 (2006)).

66 Woodford, 548 U.S. at 89.

67 Richey, No. 12-36045, at p. 2 (quoting Bradley, 64 F.3d

at 1280-81).

52a

then the regulation fails, irrespective of

whether the other factors tilt in its favor.[68]

Even considering those other factors, they likely also

would remain unsatisfied. As the Bradley court

explained:

The [ prison]’s legitimate security concerns

would be largely served by procedures that

require grievances to be in writing and shield

those prison officials who are in direct contact

with the inmates from reading any insulting

remarks that might be contained in those

grievances. In so saying, we do not mandate

any alteration to [ prison]’s current procedures,

but merely state that there are obvious, simple

alternatives that both accommodate the

prisoner’s right to file a grievance and prevent

any open expression of disrespect or any

disrespectful communication between prisoner

and guard or between prisoner and prisoner. It

takes little imagination to structure a

grievance system and regime of disrespect rules

that would make a prisoner’s statements in a

complaint or grievance invisible to all those

involved in the daily operations of the prison,

alleviating any security concern. A prisoner’s

statement in a grievance need not have any

more impact on prison security through the

maintenance of respect than the prisoner’s

unexpressed thoughts.[69]

________________________

68 Shaw v. Murphy, 532 U.S. 223, 229-30 (2001) (quoting

Turner, 482 U.S. at 89-90) (internal citations omitted).

69 64 F.3d at 1281 (internal citation omitted).

53a

Defendant has put forth no plausible reason why the

same procedures could not be implemented in the

context of this case. Defendant does assert that such

procedures are “actually not practical or workable in

a the prison context where staff members being

grieved have the duty, and the right, to know the

grievances levied against them and provide a response

as part of the resolution process.”70 But defendant

points to no legal authority or specific prison

regulation to support the proposition, that staff

members have the duty or right to be exposed to the

type of inappropriate language defendant also argues

has no place in the grievance process. In other words,

defendant has not shown that screening staff

members from such language or other similar

methods would in any way hinder the prison’s ability

to amicably address the grievance itself.

It is true that Supreme Court overturned the

Ninth Circuit’s balancing of “the importance of the

prisoner’s infringed right against the importance of

the penological interest served by the rule” in Bradley,

holding that “the Turner test, by its terms, simply

does not accommodate valuations of content.”71 But in

Brodheim, the Ninth Circuit expressly held that it had

“reach[ed] the same result” when “solely applying the

Turner factors,” and in Richey it reiterated its prior

holdings in Brodheim and Bradley that under Turner,

________________________

70 Dkt. 52, p. 18.

71 Shaw, 532 U.S. at 230 and n. 2; Brodheim, 584 F.3d at

1272; Bradley, 64 F.3d at 1280.

54a

“a prison may not take or threaten adverse action

against an inmate for using disrespectful language in

a grievance.”72 Accordingly, for all of the above

reasons, defendant has failed to establish the absence

of genuine issues of material fact as to plaintiff ’s First

Amendment claim.

II.

Plaintiff ’s Retaliation Claim

“Retaliation against prisoners for their exercise

of ” their right to file prison grievances “is itself a

constitutional violation.”73 There are five elements of

a retaliation claim:

(1) An assertion that a state actor took some

adverse action against an inmate (2) because of

(3) that prisoner’s protected conduct, and that

such action (4) chilled the inmate’s exercise of

his First Amendment rights, and (5) the action

did not reasonably advance a legitimate

correctional goal.[74]

Under the first three elements, plaintiff must show

his protected conduct was the “ ‘substantial’ or

‘motivating’ factor behind the defendant’s conduct.”75

To do this, plaintiff “need only ‘put forth evidence of

________________________

72 584 F.3d at 1272-73; No. 12-36045, at p. 2.

73 Brodheim, 584 F.3d at 1269.

74 Id. (quoting Rhodes v. Robinson, 408 F.3d 559, 567-68

(9th Cir. 2005).

75 Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314

(9th Cir. 1989); see also Brodheim, 584 F.3d at 1271.

55a

retaliatory motive, that, taken in the light most

favorable to him, presents a genuine issue of material

fact as to [the defendant’s] intent.” ”76

This case is distinguishable from Bradley and

Brodheim, defendant argues, because it does not

involve any actual punishment or warning of

punishment, but merely “an instruction to rewrite the

grievance in accordance with policy.”77 There is no

dispute, however, that defendant instructed plaintiff

to rewrite his grievance because of the inappropriate

language it contained. Nor is there any dispute that

plaintiff ’s grievance would not be processed unless he

re-wrote it without that language. Defendant asserts

plaintiff is not being punished thereby, but certainly

he is being subject to a form of “adverse action” in that

he would not be allowed to proceed with his written

grievance if failed to comply.78 At the very least, there

is a genuine issue of material fact as to whether

disallowing plaintiff to proceed constitutes the type of

adverse action necessary to establish a retaliation

claim.

Defendant also argues plaintiff ’s own

statements indicate he is not “one who has become

hesitant to speak.”79 But “an allegation that a person

of ordinary firmness would have been chilled is

________________________

76 Id. (quoting Bruce v. Ylst, 351 F.3d 1283 1289 (9th Cir.

2003)).

77 Dkt. 52, p. 19.

78 Brodheim, 584 F.3d at 1271.

79 Dkkt. 52, p. 20.

56a

sufficient to state a retaliation claim.”80 Thus,

“focus[ing] on whether or not the record showed

[ plaintiff ] was actually chilled [is] incorrect.”81 “[A]

plaintiff does not have to show that ‘his speech was

actually inhibited or suppressed,’ ” therefore, “but

rather that the adverse action at issue ‘would chill or

silence a person of ordinary firmness from future First

Amendment activities.’ ”82 “To hold otherwise ‘would

be unjust’ as it would ‘allow a defendant to escape

liability for a First Amendment violation merely

because an unusually determined plaintiff persists in

his protected activity.”83 As “[a] reasonable person

may have been chilled by” the re-write instruction, it

cannot be said “as a matter of law” that plaintiff “has

failed to meet this objective standard.”84

Lastly, defendant argues the requirement that

plaintiff re-write his grievances to exclude

unnecessary and inappropriate language, reasonably

advances the legitimate correctional goals of resolving

disputes, maintaining order and respect, and

enforcing prison rules. But as discussed above, while

these may constitute legitimate correctional goals, as

the Ninth Circuit consistently has pointed out, it is

________________________

80 Brodheim, 584 F.3d at 1270.

81 Id. at 1271.

82 Id. (quoting Rhodes, 408 F.3d at 568-69) (emphasis in

original).

83 Id. (quoting Rhodes, 408 F.3d at 569).

84 Id.

57a

highly questionable as to whether the requirement

that plaintiff re-write his grievance reasonably

advances them. Accordingly, defendant has failed to

show the absence of genuine issues of material fact in

regard to plaintiff ’s retaliation claim.

III.

Defendant’s Qualified Immunity Defense

“The doctrine of qualified immunity protects

government officials ‘from liability for civil damages

insofar as their conduct does not violate clearly

established statutory or constitutional rights of which

a reasonable person would have known.’ ”85 Qualified

immunity thus shields government officials from

money damages, unless the plaintiff “pleads facts

showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.”86

In considering the first prong, the Court must

determine whether “[t]aken in the light most

favorable to the party asserting the injury, do the facts

alleged show the officer’s conduct violated a

constitutional right?”87 With respect to the second

prong, an official’s conduct “violates clearly

established law when, at the time of the challenged

conduct, ‘[t]he contours of [a] right [are] sufficiently

________________________

85 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

86 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting

Harlow, 457 U.S. at 818).

87 Saucier v. Katz, 533 U.S. 194, 201 (2001).

58a

clear’ that every ‘reasonable official would have

understood that what he is doing violates that

right.’ ”88 “This inquiry,” furthermore, “must be

undertaken in light of the specific context of the case,

not as a broad general proposition.”89 The burden is

on the plaintiff to show that the right was clearly

established.90

“If the law did not put the [official] on notice

that his conduct would be clearly unlawful, summary

judgment based on qualified immunity is

appropriate.”91 As such, qualified immunity “protects

‘all but the plainly incompetent or those who

knowingly violate the law.’ ”92 On the other hand, “the

very action in question” need not “have previously

been held unlawful.”93 That is, “[t]he precise facts

need not have been previously determined, so long as

the legal principle is clearly established and a

reasonable public official would realize that his

conduct violated that rule of law.”94 Nevertheless,

________________________

88 al-Kidd, 563 U.S. at 741 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

89 Saucier, 533 U.S. at 201.

90 Sorrels v. McKee, 290 F.3d 965, 969 (9th 2002).

91 Saucier, 533 U.S. at 202; see also Harlow, 457 U.S. at

818.

92 Saucier, 533 U.S. at 202 (quoting Malloy v. Briggs, 475

U.S. 335, 341 (1986)).

93 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)

(citing Creighton, 483 U.S. at 640).

1994).

Delker v. Maass, 843 F. Supp. 1390, 1397 (D. Ore.

59a

“[t]he right the official is alleged to have violated must

be made specific in regard to the kind of action

complained of for the constitutional right at issue to

have been clearly established.”95

The

defense

qualified

immunity,

furthermore, “has both an ‘objective’ and a ‘subjective’

aspect.”96 “The objective elemen

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