Amicus Curiae Brief — D. Dahne, Petitioner v. Thomas W. S. Richey

Supreme Court briefJan 14, 2019

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No. 18-761

In the Supreme Court of the United States

DENNIS DAHNE, PETITIONER,

THOMAS RICHEY, RESPONDENT.

On Petition for Writ of Certiorari to the

Ninth Circuit Court of Appeals

BRIEF OF THE STATES OF ARIZONA,

ALASKA, IDAHO, MONTANA, NEBRASKA,

AND OREGON AS AMICI CURIAE IN

SUPPORT OF PETITIONER

MARK BRNOVICH

Arizona Attorney General

DOMINIC DRAYE

Solicitor General

Counsel of Record

NEIL SINGH

2005 N. Central Ave.

Phoenix, Arizona 85004

neil.singh@azag.gov

solicitorgeneral@azag.gov

(602) 542-7620

Additional Counsel on Inside Cover

KEVIN G. CLARKSON

Attorney General

Alaska Department of Law

State of Alaska

LAWRENCE G. WASDEN

Idaho Attorney General

State of Idaho

TIMOTHY C. FOX

Montana Attorney General

State of Montana

DOUGLAS J. PETERSON

Nebraska Attorney General

State of Nebraska

ELLEN F. ROSENBLUM

Attorney General of Oregon

State of Oregon

QUESTION PRESENTED

Do prison inmates have a First Amendment

right to include threatening, abusive, and irrelevant

language in grievances?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION .......................................................4

SUMMARY OF ARGUMENT.....................................6

ARGUMENT ...............................................................7

The Ninth Circuit Decision Ignores the

Nature and Purpose of Prison Grievances. .....7

II. The Ninth Circuit Denied Qualified

Immunity Based on Generalizations

Rather than Precedent Placing the Issue

Beyond Debate. .................................................9

CONCLUSION ..........................................................13

iii

TABLE OF AUTHORITIES

Page

Cases

Ashcroft v. al-Kidd,

563 U.S. 731, 742 (2011) ................................. 5, 10

Brosseau v. Haugen,

543 U.S. 194, 198–199 (2004) ............................... 5

City and County of San Francisco, Calif. v.

Sheehan,

135 S.Ct. 1765 (2015) .................................. 5, 6, 10

City of Escondido v. Emmons,

No. 17-1660 (U.S. Jan. 7, 2019) ........................ 5, 6

Freitag v. Ayers,

468 F.3d 528 (9th Cir. 2006)................................. 7

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ........................................... 3, 4

Hope v. Pelzer,

536 U.S. 730 (2002) ............................................. 11

Kisela v. Hughes,

138 S.Ct. 1148 (2018) .................................... 5, 6, 9

Lane v. Swain,

2018 WL 6693491 (9th Cir. Dec. 20, 2018) ........ 12

Mullenix v. Luna,

136 S.Ct. 305 (2015).......................................... 5, 6

Porter v. Nussle,

534 U.S. 516 (2002) ............................................... 2

Rhodes v. Robinson,

408 F.3d 559 (9th Cir. 2005)............................... 10

Shaw v. Murphy,

532 U.S. 223 (2001) ............................................... 8

Turner v. Safley,

482 U.S. 78 (1987) ..................................... 2, 5, 7, 8

Woodford v. Ngo,

548 U.S. 81 (2006) ............................................. 2, 3

Constitutional Provisions

U.S. Const. amend I ................................................... 9

Other Authorities

Elana M. Stern, Completely Exhausted:

Evaluating the Impact of Woodford v. Ngo on

Prisoner Litigation in Federal Courts,

166 U. Pa. L. Rev. 1511, 1515 (2018) ................... 3

John C. Williams, Qualifying Qualified

Immunity,

65 Vand. L. Rev. 1295, 1299–1302 (2012)............ 3

INTEREST OF AMICI CURIAE

The amici States of Arizona, Alaska, Idaho,

Montana, Nebraska, and Oregon have an interest in

the treatment of prison grievances generally and in

the regulation of disrespectful or threatening

language contained in such grievances in particular.

The incarcerated population of America was

approximately 1.5 million persons in 2016, the most

recent year with available data.1 The use of written

grievances by this diverse and complex inmate

population is a critical correctional tool for resolving

internal prison disputes. Across the nation, written

grievances serve as a legally endorsed method

enabling prisoners to communicate with prison

officials and vice versa.

But this communication method is not isolated

from the realities of prison life. Abusive language by

inmates that attacks the personal dignity of prison

staff harms staff morale and undermines the ability

of States to manage the prison population. Low

morale, high stress, and fear for personal safety

among prison personnel make it more difficult for

States to hire corrections officers, even as the prison

population continues to grow. Prison employees

work in difficult and highly complex environments.

1 See Bureau of Justice Statistics, Corrections Statistical

Analysis Tool (CSAT) - Prisoners: Yearend Jurisdiction

Population: Prisoners Under the Jurisdiction of State or

Federal Correctional Authorities, December 31, 2018, available

at https://perma.cc/7XJY-9HQZ.

This Court recognized the demands of this work in

Turner v. Safley, noting that prison administration

is “an inordinately difficult undertaking that

requires expertise, planning, and the commitment of

resources.” 482 U.S. 78, 84–85 (1987). When this

Court decided Turner in 1987, the nation’s prison

population was 585,084.2 Since then, the population

has grown to almost three times that size. The

difficulties

that

prison

officials

face

has

correspondingly increased during the years since the

Court decided Turner in 1987.

Similarly, the number of prison grievances has

greatly increased. Grievances document the myriad

internal conflicts that arise on a daily basis between

prisoners and prison staff, and, where litigation

ensues, they play an important role in documenting

the alleged misconduct and tracking the prison

officials’ response. This Court recognized that the

federal statute requiring inmates to use grievance

procedures, the 1996 Prison Litigation Reform Act

(PLRA), was specifically “enacted … in the wake of a

sharp rise in prisoner litigation in the federal

courts.” Woodford v. Ngo, 548 U.S. 81, 84 (2006).

The PLRA is “designed to bring this litigation under

control,” and its centerpiece provision “is an

‘invigorated’ exhaustion provision.” Id. (quoting

Porter v. Nussle, 534 U.S. 516, 524 (2002)).

Congress’s motivation for this legislation was

exemplified by a prisoner lawsuit about peanut

butter, as explained by Senator Dole while

2 Bureau of Justice Statistics, supra.

introducing the 1996 bill on the Senate floor. Elana

M. Stern, Completely Exhausted: Evaluating the

Impact of Woodford v. Ngo on Prisoner Litigation in

Federal Courts, 166 U. Pa. L. Rev. 1511, 1515 (2018).

That lawsuit featured a prisoner who pursued a civil

lawsuit for two years because a Nevada state prison

had sent him a jar of smooth peanut butter instead

of the chunky peanut butter he had demanded. Id.

Despite Congress’s efforts to curb trivial lawsuits,

the amici States continue to endure the burden of

insubstantial lawsuits filed by prisoners.

The

percentage of civil filings in federal courts by

prisoners has actually increased since Woodford,

25.3% in 2016. Stern, Completely Exhausted, supra

at 1522–23. According to a review of data from four

federal districts including the District of Arizona, the

“proper” exhaustion requirement of Woodford did not

impact the number of federal filings by prisoners at

all. Id. at 1524–28. The author of that study noted

that “Woodford does not appear to have actually

deterred prisoners from filing ‘improperly’ exhausted

claims.” Id. at 1529.

The amici States are equally concerned with the

correct application of the doctrine of qualified

immunity. Indeed, this Court articulated some of

the same concerns about trivial prisoner lawsuits

years before Congress did in the PLRA. The Court

articulated these concerns in a series of qualified

immunity decisions from 1974 to 1982. John C.

Williams, Qualifying Qualified Immunity, 65 Vand.

L. Rev. 1295, 1299–1302 (2012). In Harlow v.

Fitzgerald, 457 U.S. 800 (1982), the Court expressed

concern that too many prisoner lawsuits necessarily

required jury trials to adjudicate disputes. Harlow,

457 U.S. at 816. Such litigation required “broadranging discovery and the deposing of numerous

persons, including an official’s professional

colleagues.” Id. at 817. Such inquiries “can be

peculiarly disruptive of effective government.” Id.

In expressing the legal standard for qualified

immunity that remains in place today, the Court

emphasized

the

importance

eliminating

insubstantial claims, noting that the Court had

previously “admonished that ‘insubstantial’ suits

against high public officials should not be allowed to

proceed to trial.” Id. at 819 n.35.

The amici States file this brief to urge the Court

to vindicate the PLRA’s requirement of proper

exhaustion and to continue its work from recent

years of protecting public servants through the

doctrine of qualified immunity.

INTRODUCTION

The facts of this case are not far removed from

the peanut butter lawsuit that Senator Dole

referenced in 1996. The Respondent’s underlying

grievance arose from his missing a single shower

and being denied time on the recreation field one

day. App. 109a. It is doubtful that these facts could

support a federal claim for violating the

Constitution. Nonetheless, the missed shower and

recreational time have now snowballed into seven

years of federal litigation, with a jury trial still to

take place absent intervention from this Court.

Congress built prison grievances into the PLRA

requirements for the very purpose of curbing

litigation over trivial issues.

By elevating the

content of those grievances to the level of protected

speech, the Ninth Circuit ignored the statutory

context for why grievances exist at all, in addition to

ignoring the careful analysis of correctional goals

this Court mandated in Turner.

On the subject of qualified immunity, this Court’s

repeated admonitions to the Ninth Circuit were

insufficient to persuade the panel below to conduct

the appropriate inquiry. The Court has specifically

admonished the Ninth Circuit four times since 2015

for erroneously defining the contested conduct at a

level of generality that erases important factual

distinctions and makes qualified immunity illusory.

City of Escondido v. Emmons, No. 17-1660 (U.S. Jan.

7, 2019); Kisela v. Hughes, 138 S. Ct. 1148 (2018);

Mullenix v. Luna, 136 S. Ct. 305 (2015); City of San

Francisco v. Sheehan, 135 S. Ct. 1765 (2015). Even

before 2015, the Court noted in 2011 that it has

“repeatedly” instructed the Ninth Circuit on this

issue in cases dating back to 2004. Ashcroft v. alKidd, 563 U.S. 731, 742 (2011) (citing Brosseau v.

Haugen, 543 U.S. 194, 198–99 (2004)). Despite this

history, the panel improperly relied on a generalized

proposition to conclude that the law governing

abusive grievances was clearly established. As it

has in the past, the Court should correct this error

and complete the work it began in Escondido, Kisela,

Mullenix and Sheehan.

SUMMARY OF ARGUMENT

Abusive and threatening prison grievances do not

warrant the protections of the First Amendment.

Amici not only agree with Petitioner’s reasons for

that conclusion, but also point to the liability

exposure of prison officials caused by hostile work

environments when inmates are permitted to abuse

prison staff. The proper analysis for balancing these

factors is to faithfully apply Turner, which the panel

did not do.

The panel also erred in applying the doctrine of

qualified immunity, by relying on generalized

precedent that failed to clearly establish the right at

issue. The panel did not analyze the point that

several circuits and state supreme courts disagree

with the panel. Moreover, a recent opinion from the

Ninth Circuit calls the panel’s reasoning into

question, further compounding the lack of clarity of

the right at issue.

ARGUMENT

The Ninth Circuit Decision Ignores the

Nature and Purpose of Prison Grievances.

Petitioner has presented the Court with excellent

arguments why abusive and threatening prison

grievances do not warrant the protections of the

First Amendment. Amici agree with those points

but add another: prison officials can be successfully

sued for failing to take action against prisoners’

abusive behavior toward fellow inmates or prison

employees. In Freitag v. Ayers, the Ninth Circuit

held that “[n]othing in the law suggests that prison

officials may ignore sexually hostile conduct” by

inmates that harass prison employees. 468 F.3d

528, 539 (9th Cir. 2006). This principle was true, the

court held, whether the victims of the hostile conduct

“be guards or inmates.” Id. Yet, in its decision

below, the Ninth Circuit precludes prison officials

from regulating the very same type of threatening

language. These contradictory viewpoints create a

trap for prison officials. The solution, however,

already exists in this Court’s precedent. Under

Turner, States are free to regulate inmate speech for

the orderly administration of correctional facilities.

Turner, 482 U.S. at 89–91. Had the Ninth Circuit

faithfully applied Turner and its progeny, it would

have avoided the catch-22 that now awaits prison

administrators in the nation’s largest circuit.

In Shaw v. Murphy, 532 U.S. 223, 229–30 (2001),

prison officials charged and convicted an inmate for

disciplinary violations for the act of writing a letter

to another inmate. Id. at 226. The sanctions

included ten days of detention and demerits that

affected the inmate’s custody level.

Id.

Nevertheless, the Court held that there was no

heightened First Amendment protection for an

inmate’s letter that provided legal advice to another

inmate and that Turner’s deference to prison

regulations applied. Id. at 230 (explaining that the

Turner test does not permit an “increase in

constitutional protection” based on “valuations of

content”). Here, Washington’s requirement that

inmates rewrite grievances that violate basic

standards of conduct presents a far easier case than

Shaw. Yet rather than accord Washington’s rules

the deference that Turner requires, the panel

extended full First Amendment protection to

inmates’ language in grievances.

Apparently aware of this legal innovation but

seeking to cabin it, the panel declared that its

protection for grievances should not be “construed as

suggesting that prisoners have a right to publicly

use disrespectful language in the broader prison

environment.” App. 6a. If anything, the purpose

and context of prison grievances supports the

opposite hierarchy of speech protections. Prison

grievances are a method prescribed by federal

statute to resolve or reduce conflict and to reduce the

burden on government officials in dealing with

trivial inmate lawsuits. The Ninth Circuit’s holding

turns that rationale on its head by protecting

language that is unworthy of constitutional

protection and does nothing to advance the

legitimate purposes of prison grievances. To the

contrary, the holding below will increase trivial

inmate litigation by allowing inmates to sue prison

authorities for their efforts at curbing abusive and

threatening language, efforts that the Ninth Circuit

has already recognized as legitimate.

Unsurprisingly, the decision here is contrary to

the holdings of several other federal courts of

appeals and state supreme courts. Pet. 20–25. The

Court should grant certiorari to rectify the Ninth

Circuit’s error and restore consistency among the

lower courts in how they approach inmate

grievances.

II. The Ninth Circuit Denied Qualified

Immunity Based on Generalizations Rather

than Precedent Placing the Issue Beyond

Debate.

The panel also committed clear error in its

qualified-immunity analysis. Qualified immunity is

unavailable only if the right was clearly established,

meaning that the question must be “beyond debate.”

Kisela, 138 S. Ct. at 1152. This Court has not yet

squarely considered the right at issue here. Thus,

the panel should have examined whether clearly

established law could still be found in a “‘robust

consensus of cases of persuasive authority.’”

Sheehan, 135 S. Ct. at 1778 (quoting al-Kidd, 131 S.

Ct. at 2084). No such consensus exists. The panel

asserted that the Ninth Circuit recognized the

specific right at issue when it decided Brodheim v.

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

Brodheim was not clear because it involved facts

that are not remotely similar to Respondent’s claim

here. In addition, the panel ignored the fact that

every other court that has addressed this issue—five

federal circuit courts and several state supreme

courts, see Pet. 20–25—has disagreed with the

panel’s holding.

Brodheim involved a prison official who

responded in writing to a grievance: “I’d also like to

warn you to be careful what you write.” Brodheim,

584 F.3d at 1265. The Ninth Circuit panel first

noted the existence of a highly generalized right:

“[P]risoners have a First Amendment right to file

prison grievances.” Id. at 1269. It analyzed in detail

how that right fit into a free-speech retaliation claim

under the First Amendment. Id. (discussing the

“five basic elements of a ‘viable claim of First

Amendment retaliation’ in the prison context”)

(citing Rhodes v. Robinson, 408 F.3d 559 (9th Cir.

2005)). A successful retaliation claim requires an

adverse action by a prison official. Rhodes, 408 F.3d

at 567-68. Brodheim held that threatening harm

against a prisoner was sufficient: “[T]he mere threat

of harm can be an adverse action, regardless of

whether it is carried out.” Brodheim, 584 F.3d at

1270.

Focusing solely on the conclusion that a prison

official had arguably threatened the prisoner,

Brodheim offered no analysis and made no holding

on other First Amendment rights that might inhere

in a prisoner’s grievance. It made clear to prison

officials that when a prisoner writes a grievance, a

prison official responding to the grievance must do so

without threatening the prisoner or otherwise

causing a change in the prisoner’s conditions out of

anger or annoyance for the contents of the grievance.

Id. But it did not even suggest that merely refusing

to process a prison grievance because it contained

threatening or abusive language prohibited by

prison regulations would violate the First

Amendment. Thus, the panel had to extend the

holding in Brodheim to make it apply here.

Consequently, Brodheim did not clearly establish the

law in this situation, and the panel erred by denying

qualified immunity. See Sheehan, 135 S. Ct. at 1776

(“[E]ven if a controlling circuit precedent [from a

single circuit] could constitute clearly established

federal law . . ., it does not do so here.” [citation

omitted].)

The panel asserted that Brodheim should not be

read so narrowly, because to do so “would require

that we ignore the Brodheim court’s reasoning, and

that we disregard the broader First Amendment

framework under Turner.” App. 5a. This statement

is all but an admission that the panel is extending

Brodheim beyond the circumstances in which it

clearly established the law. It is, of course, possible

to deny qualified immunity in novel circumstances,

Hope v. Pelzer, 536 U.S. 730, 741 (2002), but this

requires an “obvious case[ ],” id. at 738; Brosseau v.

Haugen, 543 U.S. 194, 199 (2004).

Existing

precedent must have put the right’s existence

“beyond debate.” Kisela, 138 S. Ct. at 1152. To

avoid qualified immunity, the plaintiff must identify

a case “where an officer acting under similar

circumstances as [the defendant] was held to have

violated the Fourth Amendment.” White v. Pauly,

137 S. Ct. 548, 552 (2017). Brodheim does not do

that.

Compounding this error is the fact that the Ninth

Circuit recently issued an opinion calling the

reasoning of Brodheim into question. Lane v. Swain,

2018 WL 6693491 (9th Cir. Dec. 20, 2018). In Lane,

a prisoner authored letters to government officials

that contained threatening language. 2018 WL

6693491 at *1–2. In its published opinion, the Ninth

Circuit held that prison regulations prohibiting the

use of threatening language serve “legitimate

governmental interests.” Id. at *4. This holding

clouds the rationale underlying the panel’s

conclusion, especially given that Respondent’s

grievances contained implicit threats, namely

references to the recent murder of a Washington

corrections officer. App. 109a–10a. Lane proves the

panel’s error in failing to recognize that, at the very

least, its holding was not foretold and was subject to

qualified immunity.

If the Ninth Circuit had, in fact, clearly

established a rule in Brodheim in 2009, seven years

of litigation might never have occurred. Under a

clear rule, the State of Washington would have been

on notice to review its prison regulations that forbid

profanity and disrespectful language.

Being

forewarned, officials would have had an opportunity

to bring the regulations into compliance before

Respondent authored his abusive and threatening

grievances two years later in 2011. And Petitioner

would have been on notice that the grievance should

be reviewed, notwithstanding its obnoxious and

dangerous content.

But Brodheim provided no such guidance. No

Ninth Circuit opinion put it beyond debate that a

prison official violates a prisoner’s First Amendment

right to petition the government by rejecting a

grievance because the prisoner insists on using

abusive and threatening language. And numerous

other courts had issued opinions that, at the very

least, cast doubt on the notion. Qualified immunity

is therefore appropriate to relieve Petitioner of the

burden of this litigation.

CONCLUSION

The petition should be granted and the Ninth

Circuit’s decision should be reversed.

Respectfully submitted,