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

Supreme Court briefMar 18, 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 UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY TO BRIEF IN OPPOSITION

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

TABLE OF CONTENTS

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

ARGUMENT............................................................... 1

The Ninth Circuit Ruling is Final and

the Record is Fully Developed ......................... 1

The decision below is final, not

interlocutory .......................................... 1

The record is fully developed ................ 3

The Ninth Circuit Decision Reflects an

Intractable Conflict with Five Other

Courts of Appeals and with this Court ........... 5

The circuit split is real .......................... 5

This Court’s case law does not

support the ruling below ....................... 8

The Ninth Circuit’s Decision Denying

Qualified Immunity is Presented Here

and Warrants Review if the Court

Wishes to Reach it ........................................... 9

Whether Richey’s claimed right

is clearly established is fairly

included in the question

presented ............................................. 10

The Ninth Circuit denial of

qualified immunity warrants

review .................................................. 12

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

TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal

556 U.S. 662 (2009) ................................................11

Beard v. Banks

548 U.S. 521 (2006) ..................................................4

Brodheim v. Cry

584 F.3d 1262 (9th Cir. 2009)..............................2, 7

Cowans v. Warren

150 F.3d 910 (8th Cir. 1998)................................ 6-7

Hadden v. Howard

713 F.2d 1003 (3d Cir. 1983) ...................................6

Hale v. Scott

371 F.3d 917 (7th Cir. 2004)................................ 4-6

Johnson v. Jones

515 U.S. 304 (1995) ..................................................1

Lockett v. Suardini

526 F.3d 866 (6th Cir. 2008)....................................7

Loggins v. Delo

999 F.2d 364 (8th Cir. 1993)................................ 6-7

Overton v. Bazzetta

539 U.S. 126 (2003) ..................................................4

iii

Pearson v. Callahan

555 U.S. 223 (2009) ................................................10

Procunier v. Martinez

416 U.S. 396 (1974) ..............................................7, 9

Procunier v. Navarette

434 U.S. 555 (1978) ................................................11

Shaw v. Murphy

532 U.S. 223 (2001) ..............................................3, 6

Smith v. Campbell

250 F.3d 1032 (6th Cir. 2001)..................................7

Smith v. Mosley

532 F.3d 1270 (11th Cir. 2008)............................ 5-6

Thornburgh v. Abbott

490 U.S. 401 (1989) .............................................. 8-9

Turner v. Safley

482 U.S. 78 (1987) ............................................ 2-4, 9

Ustrak v. Fairman

781 F.2d 573 (7th Cir. 1986)................................ 5-6

Watkins v. Kasper

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

Yee v. City of Escondido

503 U.S. 519 (1992) .......................................... 10-11

Rules

Rule 14.1 ..............................................................10, 11

Statutes

42 U.S.C. § 1983 ........................................................10

INTRODUCTION

Seeking to distract from the importance of the

question presented here and the Ninth Circuit’s

profound conflict with decisions of other circuits and

this Court, Respondent Richey claims that this

petition is interlocutory and the record incomplete.

Neither claim withstands the slightest scrutiny. The

Court should grant certiorari and provide clarity to

prison administrators nationwide about their

authority to restrict abusive language in grievances.

ARGUMENT

The Ninth Circuit Ruling is Final and the

Record is Fully Developed

Richey’s primary arguments are that the

petition is interlocutory and that the question

presented requires a more developed factual record.

BIO 8-17. These arguments lack merit.

The decision below is final, not

interlocutory

There is nothing interlocutory about the Ninth

Circuit’s resolution of the question presented. The

Ninth Circuit affirmed summary judgment for Richey

on his claim that Dahne violated his First

Amendment rights. App. 3a (“We affirm the district

court’s grant of summary judgment to Richey on his

right to petition claim[.]”). The only thing left for the

trial court to resolve is damages.

In arguing to the contrary, Richey relies on

Johnson v. Jones, 515 U.S. 304 (1995), but that case

actually proves the State’s point. There, this Court

held that it would be inappropriate to review a lower

court ruling denying summary judgment when the

issue left for trial was a factual one. Johnson v. Jones,

515 U.S. at 313. But the Court emphasized that a

ruling granting summary judgment for the plaintiff

would obviously be a reviewable final order. Id. at 318

(“[I]f the District Court in this case had determined

that [the defendants] violated clearly established law,

petitioners could have sought review of that

determination.”).

Richey also suggests that before reaching the

question presented here, the Court would have to

resolve in the first instance whether his grievances

amounted to “true threats” or defamation. BIO at 9.

But Officer Dahne’s argument has never been that

Richey’s language falls into these categories of speech

that would be unprotected outside of prison. Rather,

Dahne’s argument is that prisons can restrict abusive

and disrespectful language—even language that

would be protected outside prison—because doing so

is “reasonably related to legitimate penological

interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).

That is the argument the Ninth Circuit and district

court rejected based on published Ninth Circuit

decisions holding “that no legitimate penological

interest is served by prison rules prohibiting

disrespectful language in grievances.” App. 4a (citing

Brodheim v. Cry, 584 F.3d 1262, 1273 (9th Cir. 2009));

App. 15a-16a (citing same case and holding that “the

issue is one of law, and . . . Richey has shown a

violation of his constitutional right to freedom of

speech”). There is nothing interlocutory about this

legal conclusion, which the Court could consider

without further factual development if it grants

certiorari.

The record is fully developed

There are no facts that need to be developed by

a lower court for this Court to decide whether “prison

inmates have a First Amendment right to include

threatening, abusive, and irrelevant language in

grievances.” Petition i.

Richey agrees that the relevant test for the

Court to apply comes from Turner, 482 U.S. 78, but he

argues that this test cannot be applied without

additional facts, specifically as to whether his

objectionable language actually harmed the prison.

BIO 16. This is clearly incorrect under this Court’s

precedent.

The Turner test asks whether prison rules

serve legitimate penological interests, not whether a

prison had a good reason to apply those rules in a

particular circumstance. See, e.g., Shaw v. Murphy,

532 U.S. 223, 230 (2001) (“[T]he Turner factors

concern only the relationship between the asserted

penological interests and the prison regulation.”).

Turner itself illustrates this point. The rule

issue

there

restricted

inmate-to-inmate

correspondence based on general concerns about the

risks posed by such correspondence, and without

“individual review of each piece of mail.” Turner, 482

U.S. at 82. The Court upheld the rule and specifically

held that individual review of inmate-to-inmate

correspondence was not constitutionally required. Id.

at 93. The dissent complained that the majority had

upheld the rule based on the “logical connection”

between that rule and penological interests, and

without finding that the prison’s interests would in

fact be harmed by any “particular correspondence.”

Turner, 482 U.S. at 103 (Stevens, J., dissenting). This

makes clear that “how Richey’s grievance actually

affected Dahne, other prison staff, or broader prison

operations” (BIO 16) is irrelevant under Turner.1

Richey also claims that the Court would need

more evidence in the record to judge the need for this

type of regulation. BIO 16. But it is Richey’s burden

to prove that Washington’s rules fail to serve

legitimate interests, not the other way around.

Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (“The

burden . . . is not on the State to prove the validity of

prison regulations but on the prisoner to disprove it.”).

In any event, in assessing whether prison regulations

serve legitimate penological interests, this Court has

looked to exactly the types of evidence available here:

declarations of prison officials, rules in other states,

and amicus briefs from other prison administrators.

Id. at 134 (citing amicus brief for proposition that

“numerous other States have implemented similar

restrictions”); Beard v. Banks, 548 U.S. 521, 530

(2006) (Breyer, J., plurality) (citing affidavit of prison

official and relying on “inferences [that] accord

deference to the views of prison authorities”); Turner,

482 U.S. at 91, 93, 93 n.* (citing testimony from prison

officials, rules of other prison systems, and amicus

brief of State of Texas and the United States).

1 See Hale v. Scott, 371 F.3d 917, 920 (7th Cir. 2004) (“But

merely to show that the needs of the prison did not require that

the regulation be enforced in the particular case against a

particular prisoner and by means of the particular sanction

chosen by the prison authorities does not justify federal judicial

intervention.”).

In short, there is nothing left for a lower court

to decide or investigate to determine whether prison

officials may restrict abusive language in prison

grievances. This Court can address the question

presented on the existing record, just as it was

addressed below.

The Ninth Circuit Decision Reflects an

Intractable Conflict with Five Other

Courts of Appeals and with this Court

Five circuits disagree with the Ninth Circuit on

whether prisons have legitimate penological interests

for restricting abusive language in grievances. The

Court should see through Richey’s attempt to

minimize that conflict based on the precise

constitutional lens at issue and immaterial factual

distinctions. And his attempt to defend the Ninth

Circuit’s unique rule based on this Court’s precedent

addressing outgoing prison mail also fails.

The circuit split is real

Richey argues that the circuit split “is not as

pronounced” as the Petition shows. BIO 20. That

argument relies on meaningless distinctions.

Richey points out that three of the decisions

from other circuits concern claims that prison

restrictions violated “free speech” rights, rather than

specifically claiming violation of a right to petition.

BIO 20-21 (citing Smith v. Mosley, 532 F.3d 1270

(11th Cir. 2008); Ustrak v. Fairman, 781 F.2d 573 (7th

Cir. 1986); Hale v. Scott, 371 F.3d 917 (7th Cir. 2004)).

Similarly, Richey points out that the inmate in

Hadden v. Howard, 713 F.2d 1003, 1009 (3d Cir.

1983), relied on due process, not the right to petition.

BIO 20. But the Turner standard applies to all

constitutional claims, whether free speech, due

process, or anything else related to prison rules.

Shaw, 532 U.S. at 229 (“[I]n Turner we adopted a

unitary, deferential standard for reviewing prisoners’

constitutional claims[.]”). Each of these cases thus

assessed the same fundamental question and held

that prisons have legitimate penological interests in

restricting disrespectful language in grievances. See

Mosley, 532 F.3d at 1277 (holding that prisons have

legitimate penological interests for prohibiting

“insubordinate remarks” in grievance letters); Ustrak,

781 F.2d at 580 (regulation of insolence serves

interest in prison discipline); Hale, 371 F.3d at 919

(following Ustrak); Hadden, 713 F.2d at 1006-07

(upholding discipline based on disrespect in a

grievance to avoid “serious problems of staff morale

and prison discipline”). In contrast, the Ninth Circuit

has repeatedly held “that no legitimate penological

interest is served by prison rules prohibiting

disrespectful language in grievances.” App. 4a. This

shows a real conflict that goes to the crux of the

question presented.

Richey next claims that the Eighth Circuit’s

position is unclear because the case petitioner Dahne

cited considers this issue quickly and another case

supposedly reaches a different conclusion. BIO 22

(citing Cowans v. Warren, 150 F.3d 910 (8th Cir. 1998)

(per curiam); Loggins v. Delo, 999 F.2d 364 (8th Cir.

1993)). But Cowans upheld discipline against an

inmate for including “insulting” language in a

grievance, finding that because the rule prohibiting

such language was valid, the inmate could not claim

retaliation when he was punished for violating it.

Cowans, 150 F.3d at 912.2 And the Loggins

case Richey cites demonstrates no different rule,

as it addressed the use of insulting language in

outgoing mail, which this Court had already

specifically addressed in Procunier v. Martinez, 416

U.S. 396 (1974).

Richey also claims that factual differences

among cases dispel the conflict. He observes that the

inmate in Smith v. Campbell, 250 F.3d 1032 (6th Cir.

2001), threatened staff and displayed aggressive

behavior. BIO 21. But the plaintiff’s legal claim was

“that he was retaliated against because of the

grievances that he filed[.]” Campbell, 250 F.3d at

1037 (emphasis added). And the Sixth Circuit’s

holding was that “although Smith may have had a

right to file grievances against prison officials . . . he

did so in a manner that violated legitimate prison

regulations[.]” Id.

Similarly, Richey argues that two circuit

decisions concern oral insults or “disorderly”

complaints, not written grievances. BIO 22 (citing

Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008)

(inmates have no First Amendment right to insult

prison employee during a hearing); Watkins v. Kasper,

599 F.3d 791, 798 (7th Cir. 2010) (First Amendment

does not protect “confrontational, disorderly manner

in which [inmate] complained about the treatment of

2 Richey’s purported distinction of Cowans based on its

retaliation claim context is further undermined because the

Ninth Circuit decision on Richey’s petition claim squarely relies

on Brodheim, 584 F.3d at 1269-72, a retaliation case. App. 5a.

his personal property”)). But regardless of whether

the grievances were oral or written, these cases

recognize prisons’ legitimate interests in restricting

disrespectful language.

In short, the Petition accurately shows that five

circuits recognize legitimate penological interests that

justify restricting or punishing disrespectful language

in grievances. The Ninth Circuit has repeatedly

rejected that view. The Court should accept review to

resolve this intractable conflict.

This Court’s case law does not

support the ruling below

Richey also questions the conflict by arguing

that the Ninth Circuit decision is consistent with this

Court’s precedent. He relies on a strained theory that

a prison’s interest in regulating inmate grievances is

analogous to a prison’s interest in regulating outgoing

mail. BIO 18-19. The cases that address prison

authority over outgoing and incoming mail, however,

actually support Petitioner Dahne’s arguments and do

not alleviate the conflict.

Richey relies on Thornburgh v. Abbott, 490 U.S.

401 (1989). But Thornburgh held that the “security

implications” of materials sent outside the prison are

“of a categorically lesser magnitude” than materials

within or coming into the prison, where prisons have

strong interests in control. Thornburgh, 490 U.S.

at 413. Richey’s reliance on these cases ignores

how prison grievances occur within the prison.

Inmates retain copies at each level of the system

(ER 72, 74, 76), and grievances are shared with staff

(ER 68, 107). Thus, Thornburgh supports upholding

the restrictions here because “the impact of the

correspondence on the internal environment of the

prison was of great concern,” and prison officials

should “be given broad discretion” to deal with “inside

communications.” Thornburgh, 490 U.S. at 413.

Finally, there is no merit to Richey’s claim that

inmate mail cases creates a rule protecting inmate

speech to all “non-inmates.” BIO 18-19. He cites no

case where the Court applies Thornburgh or other

cases to limit a prison’s ability to restrict inmate

communications to staff or communications retained

in the prison by inmates. Moreover, Turner describes

the outgoing mail cases as applying to correspondence

from inmates to the “general public” and “outsider[s],”

not any “non-inmate” as argued by Richey. Turner,

482 U.S. at 85.

In short, the panel decision cannot be

reconciled with Turner by application of the rulings in

Thornburgh or Martinez. Instead, those cases support

the circuits that recognize that there are legitimate

penological interests at stake when prisons restrict

abusive, disrespectful, or threatening language in

prison grievances.

The Ninth Circuit’s Decision Denying

Qualified Immunity is Presented Here

and Warrants Review if the Court Wishes

to Reach it

Richey incorrectly claims that the Ninth

Circuit’s ruling denying Dahne qualified immunity is

not presented here and does not warrant this Court’s

review. Again, these arguments fail.

Whether Richey’s claimed right is

clearly established is fairly included

in the question presented

The propriety of the Ninth Circuit’s ruling that

Dahne violated Richey’s clearly established First

Amendment rights is “fairly included” in the question

presented under Rule 14.1(a).

Under this Court’s precedent, courts may

resolve cases in a defendant’s favor under 42 U.S.C.

§ 1983 either by concluding that there was no

constitutional violation or by concluding that the right

at issue was not clearly established. Pearson v.

Callahan, 555 U.S. 223, 236 (2009). The Ninth

Circuit’s ruling in this case addressed both topics, and

the State’s question presented emphasized both

aspects of the Ninth Circuit’s ruling, Pet. i (explaining

that the Ninth Circuit found a violation of “an

inmate’s clearly established First Amendment

rights”). The petition then addresses both topics at

length. Nonetheless, Richey claims that the precise

phrasing of the question presented does not allow the

Court to address whether the First Amendment right

found by the Ninth Circuit was clearly established.

Richey cites no decision of this Court taking such a

narrow view, which elevates form over substance.

Rule 14.1 has two purposes. Yee v. City of

Escondido, 503 U.S. 519, 535 (1992). First, it ensures

that the party opposing certiorari knows what issues

it must argue, so that it is not forced to defend against

certiorari on grounds not presented. Yee, 503 U.S. at

536. Second, it assists the Court in identifying

important questions. Id. Neither purpose would be

served by accepting Richey’s argument here.

Richey clearly understands that the State is

asking the Court to review the Ninth Circuit’s

qualified immunity ruling. He simply claims that the

precise phrasing of the State’s question presented

omits that topic. But the Court’s “power to decide is

not limited by the precise terms of the question

presented.” Procunier v. Navarette, 434 U.S. 555, 559

n.6 (1978).

Similarly, the State’s petition makes very clear

to the Court that the State seeks review of “The Ninth

Circuit’s Analysis of Inmate First Amendment Rights”

and “The Ninth Circuit’s Cursory Denial of Qualified

Immunity.” Pet. iv. The State’s brief devotes five

pages of argument to explaining why the Ninth

Circuit’s qualified immunity analysis conflicts with

decisions of this Court. Pet. 26-31.

Richey’s contrary argument relies on Ashcroft

v. Iqbal, 556 U.S. 662 (2009), a case that does not

speak to the concerns of Rule 14.1(a). Iqbal includes a

passage explaining that denial of qualified immunity

is conceptually distinct from the merits of the

plaintiff’s claim for purposes of appellate jurisdiction.

But that does not help evaluate the question

presented here, where deciding that the First

Amendment right was clearly established was a

necessary predicate to the Ninth Circuit’s ruling.

The Ninth Circuit denial of qualified

immunity warrants review

Whether inmates have the First Amendment

right recognized by the Ninth Circuit warrants

review, even if the Court does not reach the “clearly

established” law issue, because that Ninth Circuit

ruling hobbles grievance programs across the circuit.

Pet. 6-7, 31-36. The Ninth Circuit’s conclusion that its

cases clearly establish Richey’s legal rights when

other circuits and states reject the Ninth Circuit view

provides a further reason for granting the petition, or

a reason to summarily reverse.

The Ninth Circuit ruling contradicts this

Court’s repeated admonition that rights are not

clearly established when judges and circuits are

divided. Pet. 29-30 (citing cases). Richey’s rebuttal to

this showing fails. He relies on circuit cases, but none

involve a circuit claiming that a constitutional right

can be clearly established when the circuit’s ruling

stands in opposition to multiple circuits and states.

BIO 25. Nor do these cases address the conflict

between the Ninth Circuit’s clearly established law

ruling and this Court’s rulings, set forth in the

Petition at pages 29-31.

CONCLUSION

The Petition should be granted and the Ninth

Circuit reversed.

RESPECTFULLY SUBMITTED.