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

No. 18-761

In the Supreme Court of the United States

______________

DENNIS DAHNE,

Petitioner,

v.

THOMAS RICHEY,

Respondent.

______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

______________

BRIEF FOR THE RESPONDENT IN OPPOSITION

______________

SARAH J. CROOKS

PERKINS COIE LLP

1120 NW Couch St.

Tenth Floor

Portland, OR 97209

(503) 727-2209

EDWARD A. PIPER

Counsel of Record

ed@edpiperlaw.com

P.O. Box 5606

Portland, OR 97228

(503) 913-2623

Attorneys for Respondent

Thomas Richey

-i-

QUESTION PRESENTED

Whether, consistent with the Petition Clause of

the First Amendment, a prison may refuse to process

an inmate’s properly-filed administrative grievance

solely on grounds that it contains language that the

prison deems “unnecessary” or “inappropriate.”

-iiTABLE OF CONTENTS

STATEMENT OF THE CASE .............................................1

A.

Washington State’s “Offender

Grievance Program” Invites

Inmates to File Grievances on a

Broad Range of Topics ...........................1

B.

Dahne Refused to Process

Richey’s Grievance Solely

Because Richey’s Language Was,

in Dahne’s View, “Un-Necessary

and Inappropriate.” ...............................3

C.

The District Court and the Court

of Appeals Each Disregarded

Dahne’s Contention That He

Refused to Process Richey’s

Grievance Because He Construed

It as a Threat, and Determined

Instead That Richey Had

Demonstrated a Violation of the

First Amendment’s Petition

Clause. ....................................................5

ARGUMENT ...................................................................8

A.

This Case’s Interlocutory Posture

Would Make It a Poor Vehicle in

Which to Consider Whether an

Inmate Has a First Amendment

Right to Use “Threatening” or

“Abusive” Language in a

Grievance. ..............................................8

-iiiB.

This Case’s Underdeveloped

Record Would Make It a Poor

Vehicle in Which to Assess the

Constitutionality of Restrictions

on “Threatening, Abusive, and

Irrelevant” Language in Prison

Grievances............................................14

C.

The Court of Appeals’ Decision Is

Neither Contrary to This Court’s

Precedent Nor an Outlier Among

the Circuits. .........................................18

D.

The Court of Appeals’ Decision

Regarding Qualified Immunity

Does Not Warrant This Court’s

Review. .................................................23

E.

Amici’s Additional Concerns Do

Not Warrant This Court’s

Review.. ................................................25

CONCLUSION ...............................................................26

-ivTABLE OF AUTHORITIES

FEDERAL CASES

Aldini v. Johnson,

609 F.3d 858 (6th Cir. 2010)................................25

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ..............................................24

Bell v. Wolfish,

441 U.S. 520 (1979) ..............................................15

Borough of Duryea v. Guarnieri,

564 U.S. 379 (2011) ..............................................20

Brodheim v. Cry,

584 F.3d 1262 (9th Cir. 2009)..............................24

Burgess v. Fischer,

735 F.3d 462 (6th Cir. 2013)................................25

Chafin v. Chafin,

568 U.S. 165 (2013) ..........................................8, 11

Cowans v. Warren,

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

Davis v. Jacobs,

454 U.S. 911 (1981) ..............................................23

Hadden v. Howard,

713 F.2d 1003 (3d Cir. 1983) ...............................20

Hale v. Scott,

371 F.3d 917 (7th Cir. 2004)..........................20, 21

Hidalgo v. Arizona,

138 S. Ct. 1054 (2018)..........................................14

-vHouchins v. KQED, Inc.,

438 U.S. 1 (1978) ..................................................19

Hustler Magazine v. Falwell,

485 U.S. 46 (1988) ..................................................9

Johnson v. Jones,

515 U.S. 304 (1995) .................................. 11, 12, 13

Lankford v. City of Hobart,

27 F.3d 477 (10th Cir. 1994)................................25

Lockett v. Suardini,

526 F.3d 866 (6th Cir. 2008)................................22

Loggins v. Delo,

999 F.2d 364 (8th Cir. 1993)................................22

Maryland v. Baltimore Radio Show, Inc.,

338 U.S. 912 (1950) ..............................................23

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) ................................................9

Pell v. Procunier,

417 U.S. 817 (1974) ........................................15, 19

Pierce v. Underwood,

487 U.S. 552 (1988) ..............................................11

Procunier v. Martinez,

416 U.S. 396 (1974) ........................................18, 19

R. A. V. v. St. Paul,

505 U.S. 377 (1992) ................................................9

Reyes Mata v. Lynch,

135 S. Ct. 2150 (2015)..........................................20

Richardson-Merrell Inc. v. Koller,

472 U.S. 424 (1985) ..............................................12

-viRuhrgas Ag v. Marathon Oil Co.,

526 U.S. 574 (1999) ..............................................24

Shaw v. Murphy,

532 U.S. 223 (2001) ........................................14, 15

Smith v. Campbell,

250 F.3d 1032 (6th Cir. 2001)..............................21

Smith v. Mosley,

532 F.3d 1270 (11th Cir. 2008)............................21

Snyder v. Phelps,

562 U.S. 443 (2011) ..........................................9, 10

Starrett v. Wadley,

876 F.2d 808 (10th Cir. 1989)..............................25

Texas v. Johnson,

491 U.S. 397 (1989) ..............................................10

Thornburgh v. Abbott,

490 U.S. 401 (1989) ........................................18, 19

Turner v. Safley,

482 U.S. 78 (1987) ..........................................14, 15

United States v. Stevens,

559 U.S. 460 (2010) ........................................10, 26

Ustrak v. Fairman,

781 F.2d 573 (7th Cir. 1986)................................21

Watkins v. Kasper,

599 F.3d 791 (7th Cir. 2010)..........................21, 22

Youngberg v. Romeo,

457 U.S. 307 (1982) ..............................................14

-viiCONSTITUTIONAL PROVISIONS

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

U.S. Const. amend. XIV ............................................20

STATUTES

42 U.S.C. § 1983 ........................................................25

RULES

Sup. Ct. R. 10. ...........................................................24

Sup. Ct. R. 10(a). .......................................................23

Sup. Ct. R. 14.1(a). ..............................................23, 24

-1-

In the Supreme Court of the United States

______________

No. 18-761

DENNIS DAHNE,

Petitioner,

v.

THOMAS RICHEY,

Respondent.

______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

______________

BRIEF FOR THE RESPONDENT IN OPPOSITION

______________

STATEMENT OF THE CASE

A. Washington State’s “Offender Grievance

Program” Invites Inmates to File Grievances

on a Broad Range of Topics.

The Washington State Department of Corrections

(“WSDOC”) has established an “Offender Grievance

Program” through which inmates may submit formal

complaints about the conduct of prison staff. WSDOC

describes the program in an official WSDOC policy

and in a separate Offender Grievance Program

-2Manual (the “OGPM”). ER1 115-65. In the words of

the OGPM, the program permits “administrative

review and resolution” of inmate complaints and

provides “a way for every offender to have his/her

grievance heard and dealt with in a formal manner.”

ER 128.

The grievance process begins when an inmate files

a written “offender complaint.” ER 168-69. WSDOC

permits inmates to file such complaints on a broad

range of topics, including the “[a]pplication of

[WSDOC] policies” and the “[a]ctions of employees . . .

over whom the facility or supervising office has

jurisdiction.” ER 117. The OGPM advises inmates

that their grievances must “[i]dentify how the issue or

incident [being grieved] affects [them] personally.”

ER 138.

It also tells inmates that they “are

responsible to provide in [their] written complaint[s]

all information relating to the issue being grieved.”

ER 138.

An inmate’s initial written grievance may be

returned for a rewrite if, in WSDOC’s view, an inmate

has used “profane” language or failed to write a

“simple, straight-forward statement of concern.” ER

141. Nowhere, however, do the WSDOC policies and

procedures applicable to the grievance program

indicate that grievances containing “disrespectful,”

“unnecessary,” or “inappropriate” language will be

returned without processing.

1

“ER” refers to the Ninth Circuit’s excerpts of record, which

are available at Docket Entry #6.

-3After a grievance is filed and accepted, the

WSDOC grievance coordinator or an “assigned

investigator” investigates the matter.

ER 143.

Among other things, he or she “will . . . review

inventories, daily logs, medical records, etc., as

necessary,” “interview resource staff (doctors,

supervisors, chaplain, etc.) for additional perspective,

as necessary,” and “interview [the] grievant and/or

witnesses as appropriate.” ER 143.

Following the investigation, the investigator

prepares a report, which includes, among other

things, a “[s]uggested response” to the inmate’s

complaint. ER 144. WSDOC requires that “[s]taff

conduct grievance investigation reports” state “what

corrective action has been/will be taken to resolve the

issue and provide a completion date for that action,

when known.” ER 144.

B. Dahne

Refused

to

Process

Richey’s

Grievance

Solely

Because

Richey’s

Language Was, in Dahne’s View, “UnNecessary and Inappropriate.”

Respondent Thomas W.S. Richey (“Richey”), an

inmate in Washington State, filed a prison grievance

in which he alleged that a guard unfairly deprived

him of his right to use the prison yard, to shower, and

to obtain clean clothes. ER 168. Because he did not

know the guard’s name, Richey identified her in the

grievance as the “extremely obese Hispanic female

guard.” ER 168. Citing the recent murder of another

corrections officer, Richey’s grievance suggested that

the guard’s misconduct posed a broader safety risk.

ER 168. His language made perfectly clear that he

did not intend his comment to be a threat: the guard’s

-4misconduct, he wrote, “can make prisoners less

civilized than myself to resort to [sic] violent behavior

in retaliation. She is a danger to the orderliness and

security of the prison.” ER 168.

On November 15, 2011, a prison staff member

returned Richey’s grievance without processing it.

ER 168. The staff member indicated that “rewriting

is needed” and that Richey needed to submit a revised

grievance within five days. ER 168. The staff

member

instructed

Richey

to

“[r]ewrite—

appropriately. Just stick to the issue of what

happened, when, [and] who was involved.” ER 168.

Richey “believe[d] [that his] grievance had done

just that.” SER2 4. Nevertheless, on November 17,

2011, Richey rewrote the grievance to emphasize

“what happened,” “when,” and “who” was involved.

ER 169. As in his initial grievance, he alleged that

the guard “denied [him] yard, [his] right to a shower,

and a shower roll without due process nor proper

reason or justification.” ER 169. And, again, he

suggested that the guard’s misconduct posed a danger

to all in the prison, in that it needlessly risked

provoking violent behavior among other inmates. ER

169.

Several days later, Petitioner Dennis Dahne

(“Dahne”), the prison’s grievance coordinator, again

returned Richey’s rewritten grievance without

processing it. ER 169. He demanded that Richey

“[r]ewrite as directed. Hispanic female is adiquit.

2

“SER” refers to the Ninth Circuit’s supplemental excerpts

of record, which are available at Docket Entry #13.

-5[sic] Extremely obese is un-necessary and

inappropriate.” ER 169. Nowhere on the form or in

any of his other correspondence with Richey did

Dahne indicate that he had refused to process

Richey’s grievance because he found it “threatening,”

“abusive,” or unacceptable for any other reason. ER

168, 169.

Richey responded by writing a “kite” in which he

expressed his belief that the phrase “extremely obese”

adequately described the prison guard at issue, and

was “necessary and appropriate in helping [Dahne]

identify her.” SER 5. Richey asked Dahne “not to

punish [him] by rejecting [his] grievance because

[Dahne] disagreed with [his] choice of language.”

SER 5. Dahne did not respond. SER 5. So, on

December 7, 2011, Richey sent another kite asking,

“Are you going to process my properly submitted

grievance or what? I’m not rewriting it so do your job

and process it.” ER 170. On December 8, Dahne

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

requested your grievance has been administratively

withdrawn.” ER 170.

C. The District Court and the Court of Appeals

Each Disregarded Dahne’s Contention That

He Refused to Process Richey’s Grievance

Because He Construed It as a Threat, and

Determined Instead That Richey Had

Demonstrated a Violation of the First

Amendment’s Petition Clause.

Following Dahne’s refusal to process his

grievance, Richey initiated this lawsuit. In his

complaint, he alleged that Dahne’s conduct violated

both the Petition and Speech Clauses of the First

-6Amendment. SER 5. Only Richey’s Petition Clause

claim is at issue in this appeal.

Eventually, the parties filed cross-motions for

summary judgment. Richey contended that the

undisputed material facts entitle him to judgment as

a matter of law on both of his claims; Dahne

contended that no constitutional violation occurred

and that, in any event, he is entitled to qualified

immunity. App. 15a-22a.

When it ruled on the parties’ cross-motions, the

district court appeared to resolve a factual dispute

concerning Dahne’s precise reasons for refusing to

process Richey’s grievance.3 ER 9-10; App. 15a-16a.

In support of his motion, Dahne contended that he

directed Richey to rewrite his grievance “because [it]

contained . . .

irrelevant,

inappropriate,

and

borderline threatening extra language.” ER 4; App.

9a (emphasis added). Richey, however, contended

that Dahne rejected the grievance solely for the

reasons he indicated in his handwritten note—i.e.,

Richey’s language was, in Dahne’s view, “unnecessary and inappropriate”—and not because

Richey’s language amounted to a threat. ER 169. On

that point, the district court agreed with Richey: it

held that “Dahne took the adverse action of ordering

Richey to rewrite his grievance because of

inappropriate language in the grievance.” ER 9; App.

3

In its order, the district court wrote that it “agrees with

Dahne that the material facts are undisputed and the matter

turns on questions of law.” ER 8. As explained further below,

however, its apparent rejection of Dahne’s contention that

Richey’s language amounted to threat may be material for

purposes of summary judgment.

-715a-16a (emphasis added); see also ER 13; App. 19a.

Nowhere did its opinion discuss, much less adopt,

Dahne’s contention that Richey’s language amounted

to a threat. For those reasons, the district court

granted summary judgment to Richey on his Petition

Clause claim.4 ER 16; App. 22a-23a. The court’s

order only concerned Dahne’s liability on the Petition

Clause claim; it contemplated a trial where,

presumably, a jury would determine Richey’s

damages. ER 16; App. 22a-23a.

Dahne filed an interlocutory appeal, challenging

the district court’s refusal to grant him qualified

immunity. ER 1-2. Like the district court, the court

of appeals did not analyze Richey’s Petition Clause

claim as one involving a threat; it characterized

Richey’s language as merely “rude” and “offensive.”

App. 3a. On that basis, the court of appeals held that

“the [Petition Clause] violation here occurred when

Dahne refused to allow the grievance to proceed . . .

after Richey did not rewrite it in a way that satisfied

Dahne’s sense of propriety.” App. 6a. “That,” it

concluded, “is the sort of content-based discrimination

that runs contrary to First Amendment protections.”

App. 6a. Its opinion did not discuss whether or to

what extent the First Amendment entitles an inmate

to use “threatening” language in a grievance.

4

The district court’s opinion is inconsistent in the way it

describes Richey’s Petition Clause claim. Initially, the opinion

describes the Petition Clause claim as one based on the

“constitutional right of access to the courts.” ER 9. Shortly

thereafter, it describes the same claim as one grounded in

“freedom of speech.” ER 10.

-8Nonetheless, Dahne interprets the court of

appeals’ opinion as announcing a “clearly established

constitutional right to include abusive, threatening

language in prison grievances.” Pet. for Cert. at 1.

Richey does not contend, and never has contended,

that the Petition Clause entitles him to include

threats in a grievance. Regardless, Dahne now asks

this Court to use this case to consider whether the

First Amendment confers a right “to include

threatening, abusive, and irrelevant language in

grievances.” Pet. for Cert. at i.

ARGUMENT

A. This Case’s Interlocutory Posture Would

Make It a Poor Vehicle in Which to Consider

Whether an Inmate Has a First Amendment

Right to Use “Threatening” or “Abusive”

Language in a Grievance.

In order to reach the question of whether the

Petition Clause protects “threatening” or “abusive”

language in prison grievances, this Court would first

need to revisit a fact-related dispute concerning the

pretrial record.

Given this case’s interlocutory

posture, the Court should decline to do so.

The Court has held time and again that it may not

decide cases concerning “hypothetical” factual

disputes. See, e.g., Chafin v. Chafin, 568 U.S. 165,

172 (2013) (“Federal courts may not . . . give

opinion[s] advising what the law would be upon a

hypothetical state of facts.” (internal quotation marks

and citation omitted)). Here, as an evidentiary

matter, the district court clearly stated its view of the

facts: it determined that Dahne “order[ed] Richey to

-9rewrite his grievance because of inappropriate

language in the grievance.” ER 9; App. 15a-16a

(emphasis added). Its opinion did not mention

Dahne’s contention that he found Richey’s language

“threatening” and “abusive,” and identified no other

reason for Dahne’s decision.

This Court should not presume that those

omissions were immaterial, or that the district court

intended to use “inappropriate” as a synonym for

“threatening” or “abusive.” For example, in the

related context of free speech,5 “threatening” or

“abusive” language is sometimes entitled to

materially less protection than language that, in the

government’s view, is merely “inappropriate” or

“unnecessary.” On one hand, it is well established

that the First Amendment’s protections do not apply

to threats of violence. See, e.g., R. A. V. v. St. Paul,

505 U.S. 377, 388, (1992). Likewise, in certain other

circumstances, language that is arguably “abusive” is

not protected by the Speech Clause. See Hustler

Magazine v. Falwell, 485 U.S. 46, 52 (1988) (“[W]e

have consistently ruled that a public figure may hold

a speaker liable for the damage to reputation caused

by publication of a defamatory falsehood . . . if the

statement was made ‘with knowledge that it was false

or with reckless disregard of whether it was false or

not.’” (quoting N.Y. Times Co. v. Sullivan, 376 U.S.

254, 279-80 (1964)); id. at 56 (applying the same rule

in the context of a claim for intentional infliction of

emotional distress); see also Snyder v. Phelps, 562

5

The Speech and Petition Clauses offer similar protections,

although, as this Court has recognized, those protections are not

identical. See n.9, infra.

-10U.S. 443, 465 (2011) (Alito, J., dissenting) (noting that

“[i]t is well established that a claim for the intentional

infliction of emotional distress can be satisfied by

speech”).

On the other hand, however, this Court has

emphatically disapproved of restrictions on speech

that is (as Dahne put it) merely “unnecessary.” For

example, in United States v. Stevens, 559 U.S. 460,

470 (2010), the government argued that “[w]hether a

given category of speech enjoys First Amendment

protection [should] depend[] upon a categorical

balancing of the value of the speech against its

societal costs.” In the Court’s view, “that sentence

[was] startling and dangerous.” Id. The Court

reaffirmed that the First Amendment “does not

extend only to categories of speech that survive an ad

hoc balancing of relative social costs and benefit” and

rejected the notion that the government may

“imprison any speaker so long as his speech is deemed

valueless or unnecessary.” Id. at 470-71. The Court

has disapproved of restrictions on “offensive” speech

in equally stark terms. See, e.g., Texas v. Johnson,

491 U.S. 397, 414 (1989) (“If there is a bedrock

principle underlying the First Amendment, it is that

the government may not prohibit the expression of an

idea simply because society finds the idea itself

offensive or disagreeable.”).

Thus, if this Court were to accept Dahne’s

invitation to decide whether “threatening” or

“abusive” speech in a grievance is protected by the

Petition Clause, it likely would need to decide

(contrary to the district court’s determination) that

Dahne actually rejected Richey’s grievance on those

-11grounds, or at least that a jury could reasonably

conclude as much at trial. Put differently, in the

absence of an evidentiary determination that Dahne

rejected the grievance because he found it

“threatening” or “abusive,” an opinion by this Court

on those issues would amount to a decision concerning

a hypothetical set of facts. See Chafin, 568 U.S. at

172.

In this case’s interlocutory posture, the Court

should decline to engage in that sort of evidenceweighing. The Court’s decision in Johnson v. Jones,

515 U.S. 304 (1995), illustrates why. Johnson held

that a court of appeals lacks jurisdiction to consider

an interlocutory appeal of a district court’s refusal to

grant qualified immunity where the appeal raises

“only a question of ‘evidence sufficiency,’ i.e., which

facts a party may, or may not, be able to prove at

trial.” Id. at 313.

Several aspects of Johnson’s decision apply with

equal force here.

First, Johnson distinguished

between the core functions of trial and appellate

courts:

“[T]he issue here at stake—the

existence, or nonexistence, of a triable

issue of fact—is the kind of issue that trial

judges, not appellate judges, confront

almost daily. Institutionally speaking,

appellate judges enjoy no comparative

expertise in such matters. And, to that

extent, interlocutory appeals are less

likely to bring important error-correcting

benefits here than where purely legal

matters are at issue . . . .”

-12Id. at 316 (citing Pierce v. Underwood, 487 U.S. 552,

560-561, 584 (1988), and Richardson-Merrell Inc. v.

Koller, 472 U.S. 424, 434 (1985)) (internal citations

omitted). Those institutional distinctions are as

applicable to this Court as they are to the courts of

appeals. At minimum, the Court should wait until

after trial to assess the sufficiency of each party’s

evidence. The time to do so is not in the context of

this interlocutory appeal.

Second, Johnson suggested several practical

concerns regarding interlocutory appeals challenging

the sufficiency of a party’s evidence:

“[Q]uestions about whether or not a

record demonstrates a ‘genuine’ issue of

fact for trial, if appealable, can consume

inordinate amounts of appellate time.

Many constitutional tort cases . . . involve

factual controversies about, for example,

intent—controversies that, before trial,

may seem nebulous.”

Id. Again, that concern is as applicable to this Court

as it is to the courts of appeals. The district court’s

opinion did not discuss its apparent rejection of

Dahne’s claim that the grievance was “threatening”

and “abusive,” nor, for that matter, has any party

given live testimony on that or any other topic. For

those reasons, this Court’s evaluation of the evidence

concerning Dahne’s intent would be, as Johnson

warned, a “nebulous” exercise. Id.

Finally, Johnson warned that an appellate court’s

interlocutory review of the sufficiency of a party’s

-13evidence will often lead to repeated appeals on the

same subject:

“[T]he close connection between this

kind of issue and the factual matter that

will likely surface at trial means that the

appellate court, in the many instances in

which it upholds a district court’s decision

denying summary judgment, may well be

faced with approximately the same

factual issue again, after trial, with just

enough change (brought about by the trial

testimony) to require it, once again, to

canvass the record. That is to say, an

interlocutory appeal concerning this kind

of issue in a sense makes unwise use of

appellate courts’ time, by forcing them to

decide in the context of a less developed

record, an issue very similar to one they

may well decide anyway later, on a record

that will permit a better decision.”

Id. at 316-17. Once again, that concern is as

applicable to this Court it is to the courts of appeals.

The best time at which to weigh the parties’ evidence

concerning Dahne’s reasons for refusing to process

Richey’s grievance is after trial, not in an

interlocutory appeal in which the record is less than

fully developed. The Court should deny the petition

for those reasons.

-14B. This Case’s Underdeveloped Record Would

Make It a Poor Vehicle in Which to Assess the

Constitutionality

of

Restrictions

on

“Threatening, Abusive, and Irrelevant”

Language in Prison Grievances.

The Court often “finds it premature to resolve . . .

constitutional question[s] on [a] less than fully

developed record.” Youngberg v. Romeo, 457 U.S. 307,

329 (1982) (Blackmun, J., concurring); see also

Hidalgo v. Arizona, 138 S. Ct. 1054, 1057 (2018)

(Breyer, J., respecting denial of certiorari) (noting

that the parties “may have the opportunity to fully

develop a record,” and that “this petition will be better

suited for certiorari with such a record”). This is one

such case.

Richey agrees with Dahne that Turner v. Safley,

482 U.S. 78 (1987), provides the framework with

which the Court evaluates a First Amendment

challenge to a prison regulation. Under Turner,

“[f]irst 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.” Shaw v. Murphy, 532 U.S. 223,

229 (2001) (quoting Turner, 482 U.S. at 89) (internal

quotation marks omitted). “If the connection between

the regulation and the asserted goal is ‘arbitrary or

irrational,’ then the regulation fails, irrespective of

whether the other factors tilt in its favor.” Id. at 22930 (quoting Turner, 482 U.S. at 89-90). Under Turner,

the Court has repeatedly cautioned that the

government faces a steep climb when it attempts to

regulate inmates’ speech on the basis of its content.

See id. at 230 (“[T]he Turner test, by its terms, simply

-15does not accommodate valuations of content.”);

Turner, 482 U.S. at 90 (“We have found it important

to inquire whether prison regulations restricting

inmates’ First Amendment rights operated in a

neutral fashion, without regard to the content of the

expression.” (citing Bell v. Wolfish, 441 U.S. 520, 551

(1979); Pell v. Procunier, 417 U.S. 817, 828 (1974)).

In addition, “courts should consider three other

factors,” each of which requires a detailed factual

showing by a prison. Shaw, 532 U.S. at 230. Courts

consider “the existence of ‘alternative means of

exercising the right’ available to inmates; ‘the impact

accommodation of the asserted constitutional right

will have on guards and other inmates, and on the

allocation of prison resources generally;’ and ‘the

absence of ready alternatives’ available to the prison

for achieving the governmental objectives.”

Id.

(quoting Turner, 482 U.S. at 90).

In his proposed question, Dahne has asked the

Court to approve of a restriction on “threatening,

abusive, and irrelevant” language in prison

grievances—a quintessential form of content

discrimination. And, in this posture, the evidence

based on which the Court would need to do so consists

primarily of three written declarations: one from

Richey, one from Dahne, and another from a different

member of the prison staff. ER 102-177.

If the Court is inclined at some point to review a

content-based restriction on inmates’ ability to file

grievances, it should decline to do so based on such

scant evidence. The two declarations other than

Richey’s devote just a few paragraphs to describing

why, in the prison’s view, Dahne’s refusal to process

-16Richey’s grievance served an important governmental

interest. See ER 103-113. They do so in largely

conclusory terms.

For example, Dale Caldwell,

WSDOC’s Grievance Program Manager (who,

apparently, had no personal involvement in the

underlying dispute), suggested baldly that, if prisons

“were to blindly allow offenders to use abusive and

derogatory language . . . it would lead to mistrust and

resentment, detract from true communication,

undermine the safety of the prison system in

Washington State, and eventually destroy the

credibility of the Grievance Program in Washington

State.” ER 108. However, the record contains no

evidence whatsoever concerning how Richey’s

grievance actually affected Dahne, other prison staff,

or broader prison operations. Nowhere, for example,

does Dahne’s declaration describe how Richey’s

specific grievance supposedly hindered him in

performing his job duties. See ER 110-13. Nor does

the record contain any testimony from the first staff

member to review Richey’s grievance or the prison

guard whose conduct he challenged, who, as far as the

record reveals, may not have reviewed the grievance

at all. Presumably, if “threatening, abusive, and

irrelevant” language posed a serious enough threat to

prison

operations

to

justify

content-based

6

restrictions, such evidence would exist.

6

Amici’s concerns are equally devoid of support in the record.

In particular, there is no evidence whatsoever that Richey’s

grievance posed any meaningful risk of creating a hostile work

environment, or that it otherwise might expose the prison to

litigation by any of its staff members.

-17At any rate, those assertions are ripe for

development at trial. In particular, the claim that a

few bad words in an inmate’s grievance would

“undermine the safety of the prison system” and

“eventually destroy the credibility of the Grievance

Program” strains credulity, especially in light of the

fact that the grievance program apparently has

remained alive and well in the years since the court

of appeals announced the rule that Dahne challenges

here; Dahne admits that a majority of the more than

20,000 grievances that WSDOC processes each year

are resolved informally. ER 105. Similarly, Caldwell

asserted in his declaration that grievances “affect[]

the staff member responding to the grievance, as well

as the staff member being described, because the

latter will see the grievance as part of the

investigation into staff conduct . . . .” ER 107. In light

of Dahne’s own evidence, that statement deserves

skepticism: the OPGM says only that “[s]taff

members grieved for alleged misconduct or retaliation

may read the initial grievance during the interview

with the assigned investigator,” and offers no

practical reason why staff members must read such

grievances in every case. ER 136 (emphasis added).

If the Court is inclined to consider Dahne’s

proposed question, it should do so based on a record

that answers those and other important factual

questions, which the current record leaves

unresolved. The petition should be denied on that

independent basis.

-18C. The Court of Appeals’ Decision Is Neither

Contrary to This Court’s Precedent Nor an

Outlier Among the Circuits.

Dahne characterizes the court of appeals’ opinion

below as a jurisprudential outlier that is unique

among the circuits and contrary to this Court’s

precedent. Neither is true.

First, the court of appeals’ decision is consistent

with the distinction drawn by this Court between

restrictions on “outgoing” correspondence to

“noninmate[s]” and “incoming” correspondence to

inmates. See Thornburgh v. Abbott, 490 U.S. 401,

408, 411-13, n.10 (1989). “Incoming” messages pose

unique risks because they are directed at and will be

read by inmates. See id. at 412 (“Once in the prison,

material of this kind reasonably may be expected to

circulate among prisoners, with the concomitant

potential for coordinated disruptive conduct.”). Thus,

Thornburgh held that, as to those sorts of

communications, prison officials should “be given

broad discretion to prevent such disorder.” Id. at 413.

“Outgoing” messages, however, raise no such

concern. Thornburgh acknowledged that “outgoing

correspondence that magnifies grievances or contains

inflammatory racial views cannot reasonably be

expected to present a danger to the community inside

the prison.” Id. at 411-12 (citing Procunier v.

Martinez, 416 U.S. 396, 416 (1974)) (emphasis in

original).

Though it disapproved of Martinez’s

analytical approach, Thornburgh left in place its

central holding, which invalidated, on First

Amendment grounds, a prison regulation that

prohibited “statements that ‘magnify grievances’ or

-19‘unduly complain’” in “outgoing letters.” Martinez,

416 U.S. at 415-16; see also Thornburgh, 490 U.S. at

411 (“[A] careful reading of Martinez suggests that

our rejection of the regulation at issue resulted not

from a least restrictive means requirement, but from

our recognition that the regulated activity centrally

at

issue

in

that

case—outgoing

personal

correspondence from prisoners—did not, by its very

nature, pose a serious threat to prison order and

security.”). Thornburgh also noted that “Martinez has

been characterized in subsequent decisions of this

Court as a case concerning ‘written communication by

inmates’ to noninmate recipients.” Thornburgh, 490

U.S. at 412, n.10 (citing Pell, 417 U.S. at 826, and

Houchins v. KQED, Inc., 438 U.S. 1, 12, 31 (1978))

(emphasis added).

Inmate grievances are akin to “outgoing”

correspondence because they are directed to

“noninmates,” i.e., to prison staff. See id. In

Thornburgh’s language, nothing an inmate writes in

a grievance is “targeted to a general audience,” nor,

“[o]nce in the prison,” could statements in a written

grievance “reasonably . . . be expected to circulate

among prisoners. . . .”7 Id. at 412. The court of

appeals’ decision is thus consistent with the approach

of Thornburgh and Martinez.

7

As the court of appeals noted, if an inmate attempts to

distribute a copy of an inappropriate written grievance to fellow

prisoners, a prison can punish him for that separate offense.

App. 6a. However, the record is devoid of any suggestion that

Richey did or attempted to do so.

-20Second, if there exists a circuit split at all, it is not

as pronounced as Dahne claims.8 Several of the cases

on which Dahne relies did not involve Petition Clause

claims at all. Hadden v. Howard, 713 F.2d 1003 (3d

Cir. 1983), for example, was a Fourteenth

Amendment due process case. There, an inmate

alleged that a prison deprived him of a liberty interest

when it punished him for a “maliciously untrue”

statement in a grievance. See id. at 1006-08. The

inmate did not allege, and the Third Circuit did not

consider, whether a violation of the inmate’s right to

petition had occurred. Similarly, Hale v. Scott, 371

F.3d 917, 918 (7th Cir. 2004), concerned an inmate’s

free speech challenge based on a “libelous” statement

in a grievance.9 Unlike Richey, the inmate in Hale

did not allege a right to petition claim and did not

assert an injury based on the prison’s failure to

8

The various unpublished decisions that Dahne cites are not

precedent and are thus insufficient to demonstrate a circuit

split. See, e.g., Reyes Mata v. Lynch, 135 S. Ct. 2150, 2155 n.3

(2015) (“[W]e are not certain what the Fifth Circuit . . . thinks

about [a] question . . . [because it] has stated [its] position in only

a single sentence in a single unpublished opinion, which

(according to the Circuit) has no precedential force.”)

9

As this Court has recognized, “[c]ourts should not presume

there is always an essential equivalence in the [Speech and

Petition] Clauses or that Speech Clause precedents necessarily

and in every case resolve Petition Clause claims.” Borough of

Duryea v. Guarnieri, 564 U.S. 379, 388 (2011). There is

“extensive common ground in the definition and delineation of

these rights,” but “[t]here may arise cases where the special

concerns of the Petition Clause would provide a sound basis for

a distinct analysis; and if that is so, the rules and principles that

define the two rights might differ in emphasis and formulation.”

Id. at 389.

-21process the grievance; in fact, the Seventh Circuit’s

opinion suggested that the prison had done so. See id.

at 918 (noting that “the prison investigated the

[inappropriate statement in the grievance] and found

it to be baseless”).

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

likewise indicated that the inmate’s First

Amendment claim was grounded in the First

Amendment’s Speech Clause, not the Petition Clause.

See id. at 580 (referencing “free speech”). The same

was true in Smith v. Mosley, 532 F.3d 1270 (11th Cir.

2008). See id. at 1277 (noting that the court’s decision

“depends on whether [the applicable prison rules]

amounted to valid limitations on the exercise of

speech”).

Other of Dahne’s cases turned on facts that are

materially different from those in this case. In Smith

v. Campbell, 250 F.3d 1032, 1035 (6th Cir. 2001), an

inmate who worked as a “legal advisor” to fellow

prisoners “threatened” a staff member during an inperson witness interview on behalf of another inmate.

As a result of the threat, the inmate lost his position

as a legal advisor, following which he filed several

grievances. Id. The Sixth Circuit rejected the

inmate’s First Amendment claim not because of the

content of any written grievance, but rather “because

of his aggressive attitudes in the discharge of his job

duties and his attempts to intimidate staff members.”

Id. at 1037.

Similarly, Watkins v. Kasper, 599 F.3d 791, 797798 (7th Cir. 2010), held that an inmate’s “oral

complaint[s]” lost First Amendment protection

because the inmate raised one of them “public[ly]” and

-22voiced another in a “confrontational, disorderly

manner.” In both cases, the court noted that the

inmate could instead have raised his concerns in a

written grievance. Id. at 797 (“Instead of openly

criticizing Kasper’s directives during a meeting with

other law clerks, Watkins could have taken the less

disruptive approach of filing a written complaint.”);

id. at 798 (“Watkins did not confine himself to a

formal, written grievance or a courteous, oral

conversation with Kasper about the placement of his

legal materials. Instead, he confronted Kasper faceto-face in the library, presumably within earshot of

other prisoners . . . .”); see also Lockett v. Suardini,

526 F.3d 866, 869 (6th Cir. 2008) (an inmate who

called a hearing officer a “foul and corrupted bitch”

during an in-person hearing could be disciplined).

Here, the panel’s decision itself acknowledged that

prison administrators may punish offenses like the

one in Watkins. App. 6a.

In Cowans v. Warren, 150 F.3d 910, 911 (8th Cir.

1998), the Eighth Circuit did not meaningfully

analyze the application of the Petition Clause to an

inmate’s disrespectful language in a grievance.

Rather, it affirmed the district court’s decision to

grant qualified immunity on an inmate’s right to

petition claim only “[t]o the extent [the claim was]

alleged” and without meaningful discussion. Id.

Given the vagueness of that holding, the state of the

Eighth Circuit’s law on this subject is uncertain given

another case decided shortly before Cowans. See

Loggins v. Delo, 999 F.2d 364, 365, 365-67 (8th Cir.

1993) (holding “as a matter of law . . . [that] the

language in [an inmate’s similar] letter to his brother

did not implicate security concerns,” despite the

-23letter’s characterization of the prison mail censor as

“a beetled eye’d bit—” who “enjoys reading people’s

mail”).

Finally, none of the state court cases on which

Dahne relies are “decision[s] by a state court of last

resort.” Sup. Ct. R. 10(a). For that reason, those cases

are insufficient to demonstrate a split of authority

warranting this Court’s review. Cf. Davis v. Jacobs,

454 U.S. 911, 914 n.4 (1981) (noting that the Court

may deny a petition because the opinion below “may

not be the judgment of a State court of last resort”

(quoting Maryland v. Baltimore Radio Show, Inc., 338

U.S. 912, 917-918 (1950) (Frankfurter, J.)) (internal

quotation marks omitted)).

To the extent there exists a split of authority

regarding Dahne’s proposed question, that split has

not developed to the point of warranting review by

this Court. The petition should be denied on that

separate basis.

D. The Court of Appeals’ Decision Regarding

Qualified Immunity Does Not Warrant This

Court’s Review.

The Court should decline to review the court of

appeals’ decision regarding qualified immunity for at

least two reasons.

First, Dahne’s formulation of the question

presented asks the Court to review only the

substantive First Amendment issue underlying the

parties’ dispute. It does not clearly ask the Court to

consider whether the court of appeals correctly

applied the doctrine of qualified immunity. Sup. Ct.

-24R. 14.1(a) (“Only the questions set out in the petition,

or fairly included therein, will be considered by the

Court.”); see also Ruhrgas Ag v. Marathon Oil Co., 526

U.S. 574, 588 n.8 (1999) (declining to consider an

issue because the “issue is not within the question

presented”). The issue of qualified immunity turns on

a materially different set of considerations and thus

is not “fairly included” within the merits question.

See Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (noting

that “a district-court order denying qualified

immunity . . . is conceptually distinct from the merits

of the plaintiff’s claim” (internal quotation marks and

citation omitted)).

Second, Dahne’s argument regarding qualified

immunity amounts to a contention that the court of

appeals merely “misappli[ed] . . . a properly stated

rule of law.”

Sup. Ct. R. 10. Even if true, that

argument does not warrant this Court’s review. And,

at any rate, the court of appeals appropriately

considered and rejected Dahne’s argument regarding

whether the right at issue was clearly established.

The applicable precedent, it noted, was Brodheim v.

Cry, 584 F.3d 1262, 1269, 1271 (9th Cir. 2009), which

held starkly that “[i]t is well-established that . . .

prisoners have a First Amendment right to file prison

grievances” and that “disrespectful language in a

prisoner’s grievance is itself protected activity under

the First Amendment.” Based on that holding, the

court of appeals concluded that clearly established

law prohibited Dahne from refusing to process

Richey’s grievance because its language did not

“satisf[y] Dahne’s sense of propriety.” App. 5a-6a.

-25That conclusion correctly applied the doctrine of

qualified immunity. In particular, Dahne cites no

case holding that a court of appeals’ decision cannot

itself clearly establish a particular rule of law within

that circuit. In fact, several other circuits follow the

Ninth Circuit’s approach, in that they look to their

own cases in determining which rules of law are

clearly established. See Burgess v. Fischer, 735 F.3d

462, 473 (6th Cir. 2013) (noting that a particular right

“was not clearly established until our decision in

Aldini v. Johnson, 609 F.3d 858 (6th Cir. 2010)”));

Lankford v. City of Hobart, 27 F.3d 477, 480 (10th Cir.

1994) (“[W]ith this court’s opinion in Starrett v.

Wadley, 876 F.2d 808, 814 (10th Cir. 1989), it became

clearly established that sexual harassment can

constitute a violation of equal protection and give rise

to an action under 42 U.S.C. § 1983.”).

E. Amici’s Additional Concerns Do Not Warrant

This Court’s Review.

Amici’s contention that this Court should

intervene simply because Richey’s claim seems to

them “insubstantial” or “trivial” is meritless. That

argument fundamentally misinterprets Richey’s

claim. Richey did not initiate this lawsuit on grounds

that the guard’s denial of his right to use the prison

yard, to shower, and to obtain clean clothes itself

amounted to a constitutional violation. Rather, the

injury that Richey alleged, which the court of appeals

correctly recognized, was the denial of an opportunity

to seek redress (through the prison’s grievance

program) for those indignities. To Richey, the guard’s

decision to punish him unfairly was far from a

“trivial” matter, but even if it were, the Petition

-26Clause still would not permit Dahne to refuse to

process the grievance merely because the issue it

raised was, in his view, unimportant. See Stevens,

559 U.S. at 470-71.

Nor is this case an appropriate vehicle in which to

address amici’s arguments regarding the exhaustion

requirements of the Prison Litigation Reform Act.

Dahne withdrew his argument that Richey had failed

to exhaust his administrative remedies at the district

court level and has not re-raised it since then. App.

74a. That issue is not properly before this Court.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully Submitted,

EDWARD A. PIPER

Counsel of Record

ed@edpiperlaw.com

P.O. Box 5606

Portland, OR 97228

(503) 913-2623

SARAH J. CROOKS

PERKINS COIE LLP

1120 NW Couch St.

Tenth Floor

Portland, OR 97209

(503) 727-2209

Attorneys for Respondent

Thomas Richey