Petition for Writ of Certiorari — Beauclair v. Puente Gomez
Supreme Court brief2001
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supreme Court, U.S
4 FILED
Y
01 606 oct 0 92008
NO. eemoe or tHe CLERK
In The
Supreme Court of the United States
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RICHARD A. VERNON, DIRECTOR, IDAHO
DEPARTMENT OF CORRECTION; DAVE PASKETT,
WARDEN, IDAHO STATE CORRECTIONAL
INSTITUTION; JAMES C. SPALDING, DIRECTOR, IDOC;
JOE KLAUSER, WARDEN, ISCI,
Petitioners,
NOEL PUENTE GOMEZ; LEE MAZUR HAYS;
BOB JONES; ALFREDO ROMAN; PATRICK HALL;
MARQ BARTLETT; GREGORY JOSEPH NELSON,
Respondents.
¢
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
*
PETITION FOR A WRIT OF CERTIORARI
¢
ALAN G. LANCE
Attorney General
MICHAEL A. HENDERSON
Deputy Attorney General
Division Chief, Criminal Division
Paut R. PANTHER*
Deputy Attorney General
1299 North Orchard St., Suite 110
Boise, Idaho 83706-2266
(208) 658-2097
*Counsel of Record
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
CN
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QUESTIONS PRESENTED
I. A plaintiff invoking the jurisdiction of a federal
court must establish standing by demonstrating an actual
or threatened injury. This case presents the question of
whether a hypothetical, subjective “chili,” independent of
objective actual injury and without proof that a prisoner
was actually deterred from exercising his First Amend-
ment rights, is an injury sufficient to confer standing.
II. A prisoner claiming retaliation must show that
he was punished in reprisal for exercising protected First
Amendment rights. This case presents the issue of
whether a prison law clerk’s oral complaints about his
supervisor’s management of a prison law library is a
constitutionally protected right so that interference with
such an activity constitutes retaliation.
li
PARTIES
PETITIONERS
RICHARD A. VERNON, Director, Idaho Department of
Correction. Director Vernon served as director of the
Idaho Department of Correction in 1991 when this case
was filed in the United States District Court for the
District of Idaho.
JAMES C. SPALDING, Director, Idaho Department of
Correction. Director Spalding was substituted for Direc-
tor Vernon in his official capacity upon assuming the
directorship of the Idaho Department of Correction in
1992.
Dave Paskett, Warden
Joe Klauser, Warden
RESPONDENTS
NOEL PUENTE GOMEZ
LEE MAZUR HAYS
BOB JONES
ALFREDO ROMAN
PATRICK HALL
MARQ BARTLETT
GREGORY JOSEPH NELSON
Intervenors ALAN LEE BRANDT, EUGENE STARR,
RICHARD CARL, BOBBY ROWELL AND ALFREDO
ESPARZA were dismissed from the underlying case in
1996 and did not participate in the appeal below.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ............-¢-0c0eeeeee.
TABLE OF AUTHORITIES .............-.-0.0e0008. v
OPINIONS BELOW............0cecccccccceceeceeee 1
WIMMDUICTIONS 0. occ. ccs cecccccencecccscceonce. 1
CONSTITUTIONAL AND STATUTORY PROVI-
SIONS INVOLVED ........ 0020-0 cccccccecceceeee 1
STATEMENT OF THE CASE.................. ere 3
REASONS FOR GRANTING THE WRIT ........... 8
I. THE APPELLATE COURT’S HOLDING THAT
A PRISON RETALIATION CLAIM MAY BE
BASED ON A SUBJECTIVE “CHILL” WITH-
OUT ACTUAL INJURY CONFLICTS WITH
PRIOR HOLDINGS OF THIS COURT AND
OTHER FEDERAL CIRCUITS AND ACCORDS
PRISONERS GREATER RIGHTS THAN FREE
Se fe one ae ca badaa heise axeeeee se
A. The Ninth Circuit Requires No Actual Injury
In The Prison Retaliation Context .........
B. The Appellate Court’s Decision Ignored
Prior Rulings Of This Court Addressing
AR ERAS EEG rir se Seen any ear pe ape
C. The Appellate Court’s Decision Conflicts
With Other Circuits Which Have Applied
An Objective Test For Injury In The Prison
i ss ed ubbe nad ewanc «di
10
iv
TABLE OF CONTENTS - Continued
Page
D. The Ninth Circuit’s Decision Accords Pris-
oners Greater Rights Than Free Citizens... 17
Il. THE APPELLANT COURT’S DECISION THAT
A PRISONER HAS A PROTECTED CONSTI-
TUTIONAL RIGHT TO MAKE ORAL COM-
PLAINTS ABOUT THE MANAGEMENT OF A
PRISON LAW LIBRARY CONFLICTS WITH
PRIOR DECISIONS OF THIS COURT AND
OTHER CIRCUITS AND FAILS TO APPLY
pe 8s By ee 20
A. The Appellate Court’s Decision Conflicts
With Prior Decisions Of This Court And
Other Circuits, Under Which Jones’
Speech Was Not Protected............... 21
B. If Jones’ Speech Was Protected, The Appel-
late Court Erred In Not Applying The
Turner Standard To Evaluate The Alleged
HEU onus cbdey ese caaseybeteec. 24
PE 66 huh OU 0s be nneeG ks sree renee ein: 25
ea ia
Vv
TABLE OF AUTHORITIES
Page
Cases _
Adams v. Rice, 40 F.3d 72 (4th Cir. 1994), cert.
Gpeted, FIG US. TORS CIPO vn cc ckccedsccses 16, 22, 23
Agosto-de-Feliciano v. Aponte-Rogue, 889 F.2d 1209
GR Gi SD haa e ks cutee ce bho oekes er eeieereenl 18
Allah v. Seiverling, 229 F.3d 220 (3rd Cir. 2000) ...... 13
American Civil Liberties Union of Maryland v. Wico-
mico County, Maryland, 999 F.2d 780 (4th Cir.
SOMES cceabeduvescaveeded cksensevedineieieieere 16
Barnett v. Centoni, 31 F.3d 813 (9th Cir. 1994)......... 9
Bart v. Telford, 677 F.2d 622 (7th Cir. 1982) ....... 14, 18
Benson v. Cady, 761 F.2d 335 (7th Cir. 1985) ......... 22
Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998)........... 18
Bradley v. Hall, 64 F.3d 1276 (9th Cir. 1995)........... 9
Breaux v. City of Garland, 205 F.3d 150 (5th Cir.
MNO eeecngncnscusdsabenesdanncetinarie 18
Charvat v. Eastern Ohio Regional Wastewater Author-
sty, 206 F.G GO7 GO COE. BOE ie kc cccecrsvevczsds 18
Clarke v. Stadler, 121 F.3d 222 (5th Cir. 1997) ..... 16, 22
Coady v. Steil, 187 F.3d 727 (7th Cir. 1999)........... 18
Connell v. Signoraci, 153 F.3d 74 (2nd Cir. 1988)...... 18
Crawford-El v. Britton, 93 F.3d 813 (D.C. Cir. 1996)
reversed on other grounds, 523 U.S. 574
GEFGED is dcevecdanevediaversdsaveevusarernes 14, 16, 23
Davidson v. Chestnut, 193 F.3d 144 (2nd Cir. 1999) .... 13
vi
TABLE OF AUTHORITIES - Continued
Page
Dawes v. Walker, 239 F.3d 489 (2nd Cir. 2001)..... 13, 22
Denovellis v. Shalala, 135 F.3d 58 (1st Cir. 1998)...... 18
Dixon v. Brown, 38 F.3d 379 (8th Cir. 1994).......... 17
Dunham-Bey v. Holden, 198 F.3d 244 (6th Cir. 1999) .... 15
Flick v. Alba, 932 F.2d 728 (8th Cir. 1991)............ 23
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91
DNF 6.544.000 6an cesanedn bens buee eben aaaranerer 10
Goddard v. Kentucky Dept. of Corrections, 205 F.3d
SGD COGN GIG Fes ho cccesetacnisestueavariewiewe 15
Goss v. Myers, 208 F.3d 213 (6th Cir. 2000) .......... 15
Herron v. Campbell, 198 F.3d 245 (6th Cir. 1999)...... 15
Herron v. Harrison, 203 F.3d 410 (6th Cir. 2000)...14, 15
Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997) ........ 8,9
Huang v. Board of Governors of University of North
Carolina, 902 F.2d 1134 (4th Cir. 1990)............. 19
Johnson v. Rodriguez, 110 F.3d 299 (5th Cir. 1997), cert.
denied, Pearson v. Hines, 524 U.S. 936 (1998) ...... 16, 23
Jones v. Greninger, 188 F.3d 322 (5th Cir. 1999) .. 16, 22, 23
Bee @. Tatem, Ge Um. 0 CaS rad asec nwavanvccviseaes 11
Lewis v. Casey, 518 U.S. 343 (1996) ....... 10, 23, 24, 26
McDonald v. Hall, 610 F.2d 16 (1st Cir. 1979) ..... 17, 22
Mandela v. Campbell, 181 F.3d 102 (6th Cir. 1999) .... 15
Mendocino Environmental Ctr. v. Mendocino County,
Cae ae Saee Cree Ge Bees cv ka cevadenscccseuas 18
Vii
TABLE OF AUTHORITIES - Continued
Page
O’Shea v. Littleton, 414 U.S. 488 (1974)............... 10
Peterson v. Shanks, 149 F.3d 1140 (10th Cir. 1998)....22, 23
Pratt v. Rowland, 65 F.3d 802 (9th Cir. 1995)....... 9, 22
Rauser v. Horn, 241 F.3d 330 (3rd Cir. 2001) ...... 13, 22
Resnick v. Hayes, 213 F.3d 443 (9th Cir. 2000)......... 8
Rizzo v. Dawson, 778 F.2d 527 (9th Cir. 1985)......... 9
Ross v. Douglas County, Nebraska, 234 F.3d 391 (8th
Re EN dain ong Kea had nao week se We Cues et aren 19
Rouse v. Benson, 193 F.3d 936 (8th Cir. 1999)......... 22
Sandin v. Connor, 515 U.S. 472 (1995)............. 10, 26
Shaw v. Murphy, 532 U.S. 223, 121 S.Ct. 1475
a can ta wkd nwetedan an ek ees 19, 21, 22, 23, 25
Singer v. Fulton County Sheriff, 63 F.3d 110 (2nd
Rk: SEED cA 44 CUA eo Keubeeenereaneceaeneea Rua ay 18
Smith v. Campbell, 250 F.3d 1032 (6th Cir. 2001)
PE Era PPP NONI pay Perego N. 14, 22, 23
Smith v. Maschner, 899 F.2d 940 (10th Cir. 1990) ..... 23
Smith v. Plati, 258 F.3d 1167 (10th Cir. 2001)......... 18
Suarez-Corp. Industries v. McGraw, 202 F.3d 676 (4th
Ce cs sande nee rkpewe ves Reendwennakiakl 18
Suppan v. Dadonna, 203 F.3d. 228 (3rd Cir. 2000) cakwy 18
Thaddeus X v. Blatter, 175 F.3d 378 (6th Cir. 1999)
cic ca ee sobs ENSR aR A eat 4 a ces 14, 15, 16
Thomas v. Evans, 880 F.2d 1235 (11th Cir. 1989)...17, 23
Tighe v. Wall, 100 F.3d 41 (Sth Cir. 1996) ............ 23
Vili
TABLE OF AUTHORITIES - Continued
Page
Turner v. Safley, 482 U.S. 78 (1987) ....21, 22, 24, 25, 26
United States v. Ramsey, 431 U.S. 606 (1977) ...... 11, 26
Valley Forge Christian College v. Americans United
for Separation of Church and State, 454 U.S. 464
SON Hb 6es Sachakes 600 Ska bUhs Nites ca veresteveses 10
Ward v. Dyke, 58 F.3d 271 (6th Cir. 1995)............ 16
White v. Gregory, 87 F.3d 429 (10th Cir. 1996)........ 23
White v. Lee, 227 F.3d 1214 (9th Cir. PE ea 17
CONSTITUTIONS, STATUTES, AND RULES
United States Constitution, Amendment 1....... passim
United States Constitution, Article III § 1............ 1
United States Constitution, Article III § 2............ 1
ee ds ee PP atwhe ese eenc oakceh sodas ene eesesse. 1
a Pe oe ee 2
PETITION FOR A WRIT OF CERTIORARI
The Attorney General of the State of Idaho, on behalf
of the named defendants, petitions for a writ of certiorari
to review the judgment of the United States Court of
Appeals for the Ninth Circuit in this case.
¢
OPINIONS BELOW
The opinion of the Court of Appeals App. at 1 is
reported at 255 F.3d 1118 (9th Cir. 2001). The opinion of
the District Court, App. at 34, is unreported.
‘
JURISDICTION
The Court of Appeals entered its judgment on July
10, 2001. The jurisdiction of this Court is invoked under
28 U.S.C. § 1254.
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CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Article III of the United States Constitution provides,
in relevant part,
§ 1. The judicial power of the United States,
shall be vested in one Supreme Court, and in
such inferior courts as the congress may from
time to time ordain and establish... .
§ 2. [1.] The judicial power shall extend to all
cases, in law and equity, arising under this Con-
stitution, the laws of the United States and
treaties made, or which shall be made, under
their authority ....
The First Amendment of the United States Constitu-
tion provides:
Congress shall make no law respecting an estab-
lishment of religion, or prohibiting the free exer-
cise thereof; or abridging the freedom of speech,
or of the press; or of the right of the people
peaceably to assemble, and to petition the gov-
ernment for a redress of grievances.
42 United States Code § 1983 provides:
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, except
that in any action brought against a judicial
officer for an act or omission taken in such
officer’s official capacity, injunctive relief shall
not be granted unless a declaratory decree was
violated or declaratory relief was unavailable.
For the purposes of this section, any Act of
Congress applicable exclusively to the District
of Columbia shall be considered to be a statute
of the District of Columbia.
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STATEMENT OF THE CASE
This Petition arises out of a decision by a United
States Magistrate, affirmed by the Ninth Circuit Court of
Appeals. Those courts held that a prisoner alleging retal-
iation for exercising his First ‘.mendment rights is enti-
tled to relief even though he failed to show both that he
suffered an actual injury and that the retaliation was
motivated by the exercise of a protected First Amend-
ment right. This decision further widens an already deep
split between federal circuits on the subject of prison
retaliation. It accords prisoners more expansive rights
than free citizens, who must demonstrate actual injury if
they bring retaliation claims. If uncorrected, this decision
will impede prison officials undertaking the already com-
plex task of administering prisons and will involve fed-
eral courts in the minutia of state prison management.
This case merits review because it presents this Court
with the opportunity to reconcile conflicts between the
circuits and this Court over both the extent to which a
prisoner must demonstrate actual injury in order to
establish standing and the extent to which the First
Amendment rights of prisoners are protected. It offers the
Court the occasion to prevent the needless entanglement
of federal courts in the daily affairs of state prisons and
to avoid the waste of judicial resources that is likely to
result from this decision.
This case began in 1991 as a class action lawsuit by
prisoners in the custody of the Idaho Department of
Correction at the Idaho Maximum Security Institution
and the Idaho State Correctional Institution in Boise,
Idaho. The prisoners alleged that prison staff engaged in
a practice of retaliation against them for their exercise of
First Amendment rights. These claims were tried in 1998
before a United States Magistrate. After a nineteen-day
trial involving dozens of claims, the Magistrate held that
the prisoners failed to prove they were entitled to class-
wide relief. Instead, the Magistrate entered injunctive
relief for only six prisoners. App. at 81. Petitioners
appealed several issues to the Ninth Circuit, which
affirmed. App. at 84, 1.
For purposes of this Petition, the relevant issue
appealed was the Magistrate’s grant of injunctive relief to
prisoner Bob Jones (“Jones”). Jones worked in the Idaho
State Correctional Institution law library in 1997 under
the supervision of Correctional Library Supervisor Mic-
hele Nelson (“Nelson”). Jones confronted Nelson about
what he perceived as defects in her management of the
law library, such as absences, failure to keep appoint-
ments, rule changes, and policy violations. The Magis-
trate found that Nelson wanted Jones transferred because
she felt she was in a difficult position due to a Deputy
Attorney General’s request that Jones convince another
prisoner to accept a settlement offer. She was also afraid
of Jones and felt threatened by him because she had
previously fired him from another law clerk job. But, the
Magistrate also held that these reasons were “pretextual”
and concluded that Nelson wanted Jones transferred
because of his complaints about her. App. at 54-57. The
Magistrate identified instances in which Nelson sought to
“improperly influence” a transfer of Jones.
As to the first instance, the Magistrate found that
sometime before July 1997, Nelson asked Deputy Warden
Gary Barrier (“Barrier”) to transfer Jones to the Idaho
Correctional Institution —- Orofino (“Orofino”). Nelson
told Correctional Officer Al Race (“Race”) that she “knew
someone in the transfer department” and “could have
Jones transferred.” The Magistrate did not find that there
was ever an actual plan to transfer Jones to Orofino or
that Nelson actually influenced anyone to consider trans-
ferring him. Jones was not transferred and did not find
out about Nelson’s actions until Race told him about
them. App. at 55-56.
As to the second instance, the Magistrate found that
in July 1997, Jones was given short notice to prepare for a
transfer to Louisiana as part of a larger move of Idaho
prisoners to that state. While he was readied for trans-
port, Jones spoke to Barrier and threatened to sue him.
Jones’ transfer was cancelled. App. at 92-93. He con-
fronted Nelson the next day and demanded an explana-
tion from her, but she denied being involved in the
Louisiana transfer. App. at 89-90. The Magistrate identi-
fied no actions by which Nelson attempted to influence a
decision to transfer Jones to Louisiana.
The Magistrate found that Jones resigned as a law
clerk in August 1997 because he decided that working
under Nelson’s supervision was “detrimental.” App. at
57. Jones testified that he resigned because he did not like
being under Nelson’s supervision, and beeause he was
preparing to sue her and did not think it would be fair to
her if he continued working for her as that action was in
progress. Jones did sue Nelson in an action that was
pending at the time of trial. App. at 91-94.
Idaho State Correctional Institution Warden Joe
Klauser (“Klauser”) testified about the reasons for the
Louisiana transfer which, for Jones, was cancelled.
According to Klauser, his institution’s prisoner popula-
tion was capped by a court order. The Idaho Department
of Correction sought to have the court modify that cap,
but was unsuccessful. App. at 95-97, 99-100. As a result, it
was compelled to send prisoners out of state. App. at 102.
Idaho prisoners were moved to Texas, Minnesota and
Louisiana. The vast majority of prisoners sent to Louisi-
ana were not volunteers. App. at 106-107.
Pat Ogden coordinated the selection of prisoners for
the Louisiana move for the Idaho Department of Correc-
tion. She testified that the Department's initial criteria
called for prisoners who were medium or minimum cus-
tody, were at least 24 months away from a parole hearing
or full term release, had no medical or mental problems,
had no imminent court appearances in Idaho, and had no
detainer issues. As the transfers neared, officials had
difficulty finding sufficient numbers of qualified pris-
oners. The 24-month period was reduced to 18 months
and then to 12 months because there were not enough
qualified candidates. App. at 109-111, 115-117. No evi-
dence was introduced showing that Jones did not meet
these criteria.
The transfer plans called for moving 300 prisoners to
Louisiana. Prison officials attempted to find 350 qualified
prisoners to ensure there would be a number of alternates
in case some were removed from the list. App. at 111. The
transfer took place in two groups, the second of which
occurred in July 1997, when Jones’ transfer was cancelled,
and involved prisoners from the Idaho State Correctional
Institution where he was housed. App. at 113-114. By that
time, there were fewer than five alternates total, App. at
111, and only one alternate at the Idaho State Correc-
tional Institution. App. at 118.
The Idaho Department of Correction had a formal
grievance process, used at Jones’ prison, by which pris-
oners could submit written grievances to the staff person
involved. If they failed to get a satisfactory result, pris-
oners could submit the same grievance to a unit sergeant
and eventually to the Warden. App. at 103-105. Jones
admitted that he never used this grievance procedure to
communicate with Nelson or to others about her actions.
App. at 94.
The Magistrate entered injunctive relief for Jones and
several other inmates. Despite the lack of evidence that
Nelson ever actually influenced any decision regarding a
possible transfer of Jones, the injunction prohibited Peti-
tioners from allowing individual officers to influence
transfer decisions involving Jones based on his exercise of
federally guaranteed rights. Despite the lack of evidence
that the attempted transfers related to Jones actually
accessing the courts, the injunction further prohibited any
consideration of his activities in accessing the courts as a
factor in his transfer. Although Warden Klauser testified
that subjective criteria sometimes form the basis of a
transfer decision, the injunction required that any trans-
fer of Jones be based upon a transfer list that “has_inde-
pendently been created based upon purely objective
criteria” and prohibited the use of any “subjective crite-
ria” in deciding to add him to a transfer list he did not
otherwise qualify for based on objective criteria. App. at
81-82.
When the Appellate Court examined Jones’ claim, it
found, in contrast to the Magistrate and the record, that
Jones quit his law library job “in the face of repeated
threats of transfer because of his complaint” and that “It
is the chilling effect that forced Jones to quit hisjob....”
App. at 15. The Appellate Court held that “a retaliation
claim may assert an injury no more tangible than a chill-
ing effect on First Amendment rights.” 255 F.3d at 1127,
citing Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997), cert.
denied, Pearson v. Hines, 524 U.S. 936 (1998) and Resnick v.
Hayes, 213 F.3d 443, 449 (9th Cir. 2000). App. at 15.
¢
REASONS FOR GRANTING THE WRIT
I. THE APPELLATE COURT’S HOLDING THAT A
PRISON RETALIATION CLAIM MAY BE BASED
ON A SUBJECTIVE “CHILL” WITHOUT ACTUAL
INJURY CONFLICTS WITH PRIOR HOLDINGS OF
THIS COURT AND OTHER FEDERAL CIRCUITS
AND ACCORDS PRISONERS GREATER RIGHTS
THAN FREE CITIZENS.
Standing is a bedrock requirement of federal jurisdic-
tion, yet the Appellate Court ignored that principle and
this Court’s long standing precedent. It also widened an
existing split between the various Federal Circuits.
A. THE NINTH CIRCUIT REQUIRES NO
ACTUAL INJURY IN THE PRISON RETALIA-
TION CONTEXT.
The Appellate Court relied on Hines v. Gomez, supra, a
Ninth Circuit case in which a prisoner claimed he
9
received a retaliatory disciplinary accusation. Hines held
that the prisoner’s failure to allege more than only a chill
of his First Amendment rights did not defeat his claim.
The court did not require Hines to prove he actually was
chilled and it specifically rejected the suggestion that he
be required to show a more substantial injury. Instead, it
found that the retaliatory accusation and an inferred
chilling effect on Hines’ First Amendment rights was,
without more, sufficient injury. Id., 108 F.3d at 269.
Hines followed other Ninth Circuit retaliation cases
requiring no actual injury. Since Rizzo v. Dawson, 778 F.2d
527 (9th Cir. 1985), a retaliation plaintiff has borne a two-
pronged burden of proof in the Ninth Circuit. He must
prove (1) that he was engaged in activity protected by the
First Amendment and (2) that the state took action in
response that did not advance legitimate penologicai
goals. Rizzo, 778 F.2d at 532. See Barnett v. Centoni, 31 F.3d
813, 815-16 (9th Cir. 1994); Bradley v. Hall, 64 F.3d 1276,
1279 (9th Cir. 1995); Pratt v. Rowland, 65 F.3d 802, 806 (9th
Cir. 1995).
Rizzo and its successors require no injury; the action
of the defendant, without more than a hypothetical, sub-
jective chill is sufficient. In the instant case, the Appellate
Court went even further, finding retaliation where a low
level prison employee merely intended to retaliate but was
overruled by her superior. The Appellate Court found the
intended retaliation a sufficient injury in itself, even
though Jones suftered no actual injury. This case merits
review because the Appellate Court’s decision conflicts
with prior decisions of this Court and other federal cir-
cuits holding that an actual injury is a necessary prerequi-
site for standing.
10
B. THE APPELLATE COURT’S DECISION
IGNORED PRIOR RULINGS OF THIS COURT
ADDRESSING STANDING.
There is no legal principle more foundational than
standing. Time and again, this Court has required that a
plaintiff seeking to invoke the jurisdiction of federal
courts under Article III of the United States Constitution
establish standing by showing that he “ ‘has sustained
or is in immediate danger of sustaining some direct
injury’ as the result of the challenged statute or official
conduct” which is “both ‘real and immediate,’ not ‘con-
jectural’ or ‘hypothetical.’ ” O’Shea v. Littleton, 414 U.S.
488, 494 (1974). This requirement of “actual injury” is not
satisfied by an “ ‘abstract injury in nonobservance of the
constitution asserted by ... citizens,’ ” Valley Forge Chris-
tian College v. Americans United for Separation of Church and
State, 454 U.S. 464, 482 (1982), nor by a “ ‘generalized
grievance’ shared in substantially equal measure by all or
a large class of citizens.” Gladstone Realtors v. Village of
Bellwood, 441 U.S. 91, 100 (1979). The principle that a
plaintiff must suffer some recognizable actual injury
means that he must have suffered an actual detriment or
loss. .
The Appellate Court’s decision is inconsistent with
this precedent and two recent cases in which this Court
addressed the type of injury necessary to state a constitu-
tional claim in the prison context. In Sandin v. Conner, 515
U.S. 472 (1995), this Court held that a prisoner cannot
state a due process claim arising from a prison disciplin-
ary proceeding unless he suffers a sufficient injury in the
form of a deprivation that is atypical and significant in
the context of ordinary prison life. In Lewis v. Casey, 518
11
U.S. 343, 349-350 (1996), this Court held that hypothetical
inadequacies in a prison’s legal access system are insuffi-
cient to confer standing. Instead, a prisoner must show
that he personally suffered an actual injury in the form of
loss or interference with a non-frivolous claim involving
his conviction, sentence or conditions of confinement.
Both decisions reversed the Ninth Circuit, both required
some actual, concrete injury and both rejected claims
based on hypothetical or de minimis injury.
This Court has rejected the notion that a “chill” is a
sufficient injury to support standing. In United States v.
Ramsey, 431 U.S. 606 (1977), the defendants argued that
the opening of incoming international mail by customs
officers violated the First Amendment and impermissibly
chilled the exercise of free speech. This Court held that it
did not have to decide this constitutional issue because
the plaintiffs failed to show a sufficient injury, finding
that “Any ‘chill’ that might exist under these circum-
stances may fairly be considered not only ‘mini-
mal’... but also wholly subjective.” 431 U.S. at 624.
Similarly, in Laird v. Tatum, 408 U.S. 1 (1972), this
Court held that:
Allegations of a subjective ‘chill’ are not an ade-
quate substitute for a claim of specific present
objective harm or a threat of specific future
harm; the federal courts established pursuant to
Article III of the Constitution do not render
advisory opinions.
408 U.S. at 13-14.
In contrast, the Appellate Court affirmed injunctive
relief for Jones based on a subjective, hypothetical chill
12
supported by no evidence that he suffered any adversity
or that he curtailed his First Amendment activity. His
conduct received the tacit approval of the prison adminis-
tration when Deputy Warden Barrier overruled Nelson's
attempts to transfer him. He resigned his job only
because he didn’t like being supervised by Nelson and he
planned to sue her. Jones’ lawsuit against Nelson was
pending during trial. The Appellate Court’s decision can-
not be reconciled with this Court’s requirement that a
plaintiff must suffer an actual, rather than subjective,
hypothetical or de minimis injury in order to establish
standing.
C. THE APPELLATE COURT’S DECISION CON-
FLICTS WITH OTHER CIRCUITS WHICH
HAVE APPLIED AN OBJECTIVE TEST FOR
INJURY IN THE PRISON RETALIATION CON-
TEXT.
The Appellate Court’s decision illuminates a conflict
between the Ninth Circuit and those federal circuits
requiring an objective, actual injury. The Second, Third,
Sixth, and D.C. Circuits have applied an objective test to
determine whether a prisoner alleging retaliation has suf-
fered an injury that rises to a constitutional level. This
test requires that a court examine the facts of the case
before it and determine whether, under those facts, the
retaliatory action would deter a similarly situated person
of ordinary firmness from exercising his constitutional
rights. If the injury fails to rise to that level, a plaintiff
cannot state a retaliation claim.
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13
The Second Circuit applied this “ordinary firmness”
test in Dawes v. Walker, 239 F.3d 489 (2nd Cir. 2001).
Recognizing that prison life involves a degree of adver-
sity that ordinary citizens are not expected to endure and
which is “an ever-present concomitant of prison life,”
Dawes held that in prison, “Only retaliatory conduct that
would deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights
constitutes an adverse action for a claim of retaliation
.... Otherwise, the retaliatory act is simply de minimis
and therefore outside the ambit of constitutional protec-
tion... ” (citations omitted). Id. at 491, 493. See also,
Davidson v. Chestnut, 193 F.3d 144, 150-51 (2nd Cir. 1999)
(whether deterrent effect of claimed retaliation reaches
threshold of actionability is a question of fact).
The Third Circuit has ruled that a prisoner claiming
retaliation must show that he suffered an adverse action
“sufficient to deter a person of ordinary firmness from
exercising his [constitutional rights].” Rauser v. Horn, 241
F.3d 330, 333 (3rd Cir. 2001), citing Allah v. Seiverling, 229
F.3d 220, 225 (3rd Cir. 2000). Allah illustrates the objective
nature of the ordinary firmness inquiry. There, a prisoner
alleged retaliatory placement in administrative segrega-
tion. The court found that segregation alone is insuffi-
cient to establish the necessary injury since “it is possible
in some cases placement in administrative segregation
would not deter a prisoner of ordinary firmness from
exercising his or her First Amendment rights,” and
“whether a prisoner-plaintiff has met that prong of his or
her retaliation claim will depend on the facts of the
particular case.” 229 F.3d at 222, 225.
14
The Sixth Circuit has required that a plaintiff claim-
ing retaliation prove that the defendant took an adverse
action that would deter a person of ordinary firmness
from continuing to engage in constitutionally-protected
conduct. Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir.
2001); Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000);
Thaddeus X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999).
Thaddeus X deserves attention because it is widely cited
and includes a valuable discussion of the ordinary firm-
ness standard.
The Thaddeus X court found that the “adverse action”
element of a retaliation claim originated in employment
law. 175 F.3d at 396. To determine whether the actions of
prison officials were sufficiently adverse to rise to a con-
stitutional level, the Thaddeus X court adopted the stan-
dard set forth in an employment case, Bart v. Telford, 677
F.2d 622 (7th Cir. 1982). In Bart, a retaliation suit by a
public employee, the court held that an adverse action
was one which would “deter a person of ordinary firm-
ness” from exercising a right at stake. Bart, 677 F.2d at
625, cited at 175 F.3d 396. According to Bart, “ ‘[i]Jt would
trivialize the First Amendment to hold that harassment
for exercising the right of free speech was always action-
able no matter how unlikely to deter a person of ordinary
firmness from that exercise....’” Bart, 677 F.2d at 625,
cited at 175 F.3d 397. Thaddeus X noted that the same
standard was approved in Crawford-El v. Britton, 93 F.3d
813, 826 (D.C. Cir. 1996), reversed on other grounds, 523 U.S.
574 (1998), and left undisturbed by the Supreme Court
upon appeal of that case. 175 F.3d at 397.
15
The Thaddeus X court observed that the definition of
an adverse action is not ste*’:. Recalling Bart and recog-
nizing the uniqueness of prison life, the court held that
“Prisoners may be required to tolerate more than public
employees, who may be required to tolerate more than
average citizens, before an action taken against them is
considered adverse” and that the ordinary firmness test
was “an objective inquiry, capable of being tailored to the
different circumstances in which retaliation claims arise,
and capable of screening the most trivial of actions from
constitutional cognizance.” Id. at 398. The court con-
cluded that “Retaliation against a prisoner is actionable if
it is capable of deterring a person of ordinary firmness
from exercising his or her right to access the courts.” Id.
Since Thaddeus X, the Sixth Circuit has applied the
ordinary firmness test in a number of cases directly in
conflict with the Appellate Court’s decision here. The
Sixth Circuit has held that the transfer of a prisoner from
the general population of one prison to that of another is
“one of the ordinary incidents of prison life” which
“would not deter a person of ordinary firmness from
exercising his First Amendment rights.” Herron v. Camp-
bell, 198 F.3d 245, p. 1 (6th Cir. 1999) (unpublished). See
Mandela v. Campbell, 181 F.3d 102, p. 3 (6th Cir. 1999)
(unpublished), Dunham-Bey v. Holden, 198 F.3d 244 (6th
Cir. 1999) (unpublished), Goss v. Myers, 208 F.3d 213, p. 2
(6th Cir. 2000) (unpublished), and Goddard v. Kentucky
Dept. of Corrections, 205 F.3d 1340, p. 3 (6th Cir. 2000)
(unpublished). The Sixth Circuit has also held that a
prison may transfer a prisoner in order to gain a respite
from his grievances and litigat on, where the transfer is
16
supported by the legitimate purposes of reducing pris-
oner-staff tensions while allowing the prisoner to pursue
redress of grievances. Ward v. Dyke, 58 F.3d 271, 274-75
(6th Cir. 1995).
As noted in Thaddeus X, the District of Columbia
Circuit approved the ordinary firmness test, holding that
“some non-de minimis showing of injury is necessary”
and that a “sensible standard” for measuring such claims
is “whether an official’s acts would chill or silence a
‘person of ordinary firmness’ from further First Amend-
ment Activities.” Crawford-El v. Britton, supra, 93 F.3d at
826.
While not applying the ordinary firmness test, the
Fourth Circuit has required that a prisoner show an
“adverse impact” resulting from her exercise of protected
rights. American Civil Liberties Union of Maryland v. Wico-
mico County, Maryland, 999 F.2d 780, 785 (4th Cir. 1993);
Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994), cert. denied,
514 U.S. 1022 (1995).
The Fifth Circuit has required that a prisoner show
an “adverse act” by a defendant. Jones v. Greninger, 188
F.3d 322, 324-25 (5th Cir. 1999); Clarke v. Stadler, 121 F.3d
222, 231 (Sth Cir. 1997); Johnson v. Rodriguez, 110 F.3d 299,
310, 313-314 (5th Cir. 1997) (prisoner’s subjective assess-
ment that a chill took place was insufficient absent evi-
dence that he was deterred from writ-writing activity).
The Seventh and Tenth Circuits have not addressed
the injury issue extensively.
On the other hand, the First, Eighth, and Eleventh
Circuits largely agree with the Ninth Circuit that no
17
actual injury is required. McDonald v. Hall, 610 F.2d 16
(1st Cir. 1979) (transfer to nearby prison of similar condi-
tions was sufficient injury); Dixon v. Brown, 38 F.3d 379
(8th Cir. 1994) (no independent injury required); Thomas
v. Evans, 880 F.2d 1235, 1242 (11th Cir. 1989) (retaliatory
act need not constitute separate constitutional violation).
This case merits review because it offers this Court
the opportunity to end the conflict illustrated above and
to provide a uniform rule for lower federal courts dealing
with prison retaliation cases. Defendants urge the Court
to grant certiorari and end that conflict by adopting the
ordinary firmness test.
D. THE NINTH CIRCUIT’S DECISION
ACCORDS PRISONERS GREATER RIGHTS
THAN FREE CITIZENS.
In contrast to established law and common sense, the
Appellate Court’s decision accords greater rights to pris-
oners, who need suffer no injury in order to obtain relief,
than to free citizens who must establish standing by
demonstrating an actual injury. And, the Appellate
Court’s decision is inconsistent with non-prison retalia-
tion law in other circuits and even with non-prison retal-
iation law in the Ninth Circuit itself.
In the non-prison context, the Ninth Circuit has, in
two recent cases, applied the ordinary firmness test to
hold that threats of legal sanctions or other means of
coercion, persuasion, and intimidation violate the First
Amendment only where they “would chill or silence a
person of ordinary firmness from future First Amend-
ment activities.” White v. Lee, 227 F.3d 1214 (9th Cir. 2000),
18
citing Mendocino Environmental Ctr. v. Mendocino County,
192 F.3d 1283, 1300 (9th Cir. 1999). By applying the ordi-
nary firmness test in White and Mendocino, the Ninth
Circuit required that free citizens endure more adversity
than prisoners, who need only allege a subjective chill to
support a retaliation claim. This ignores the long-stand-
ing recognition that prison life necessarily entails the
constriction of a prisoner’s rights and conveniences.
The First, Third, Fifth, Sixth, Seventh, and Tenth Cir-
cuits have also applied the ordinary firmness standard in
retaliation cases brought by free citizens. See Agosto-de-
Feliciano v. Aponte-Roque, 889 F.2d 1209, 1217-18 (1st Cir.
1989) (employment); Denovellis v. Shalala, 135 F.3d 58, 64
(1st Cir. 1998) (employment) (holding that a free citizen
cannot rely on a hypothetical chilling effect, which is
“plainly inadequate”); Suppan v. Dadonna, 203 F.3d 228,
234-235 (3rd Cir. 2000) (employment); Breaux v. City of
Garland, 205 F.3d 150, 157 (5th Cir. 2000) (employment);
Charvat v. Eastern Ohio Regional Wastewater Authority, 246
F.3d 607, 616 (6th Cir. 2001) (employment); Bloch v. Ribar,
156 F.3d 673, 678 (6th Cir. 1998) (suit against sheriff by
crime victims); Bart v. Telford, supra (employment); Coady
v. Steil, 187 F.3d 727, 734 (7th Cir. 1999) (employment);
Smith v. Plati, 258 F.3d 1167 (10th Cir. 2001) (publishing).
Circuits which have not applied the ordinary firm-
ness test in non-prison cases have required more injury
than a mere “chill.” See Connell v. Signoraci, 153 F.3d 74, 79
(2nd Cir. 1988) (plaintiff stated claim where alleged retal-
iation hurt her business); Singer v. Fulton County Sheriff,
63 F.3d 110 (2nd Cir. 1995) (no chill where plaintiff pub-
lisher kept publishing despite retaliation); Suarez Corp.
Industries v. McGraw, 202 F.3d 676 (4th Cir. 2000) (plaintiff
Fe a a Re ay
So FE SRT Le SAE Ms Hee NER abn > DALE recite
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19
must show defendant's acts had an adverse impact on his
constitutional rights which is “more than de minimis or
trivial;” whether that impact is sufficient is a “fact inten-
sive inquiry”); Huang v. Board of Governors of University of
North Carolina, 902 F.2d 1134, 1140 (4th Cir. 1990) (plain-
tiff must be deprivecl of a “valuable benefit”); Ross v.
Douglas County, Nebraska. 234 F.3d 391, 395 (8th Cir. 2000)
(employer’s adverse action must cause employee a
“materially significant disadvantage” instead of mere
inconvenience).
The Appellate Court has it backwards. Prison
restricts the rights of prisoners; it does not accord them
greater rights than free citizens. Shaw v. Murphy, 532 U.S.
223 (2001). Yet, according to the Appellate Court, pris-
oners like Jones, who suffered an unproven, subjective,
hypothetical chill bear a lesser burden than free citizens,
who must prove that they suffered an actual injury which
would chill a person of ordinary firmness or deter a
“reasonably hardy” person, or have an “adverse impact”
that was more than de minimis or trivial, or create a
materially significant disadvantage. This case presents
the Court with the opportunity to remedy this anomaly
and to provide consistency and reason to the law of
retaliation as applied between the prison and non-prison
contexts.
20
Il. THE APPELLATE COURT’S DECISION THAT A
PRISONER HAS A PROTECTED CONSTITU-
TIONAL RIGHT TO MAKE ORAL COMPLAINTS
ABOUT THE MANAGEMENT OF A PRISON LAW
LIBRARY CONFLICTS WITH PRIOR DECISIONS
OF THIS COURT AND OTHER CIRCUITS AND
FAILS TO APPLY THE APPROPRIATE TEST.
The Magistrate and Appellate Court held that Jones
was exercising a protected First Amendment right that
prompted retaliation against him. The Magistrate held
that
. complaints regarding the operation of a
prison law library are unique in the prison con-
text for purposes of this instant action. The com-
plaints comprise speech which is designed to
orally grieve potential impermissible intrusions
upon the right to access the court system held
by the individual inmates . .. . Inasmuch as
Plaintiff Jones was attempting to raise concerns
regarding Nelson’s operation of the law library
and how it was affecting the inmates’ right to
access the courts, his speech was protected ....
App. at 57. In agreement, the Appellate Court held that
Jones’ “complaints — protected by the First Amendment -
related to ‘how [the law library] was affecting the
inmates’ right to access the courts.’ ” App. at 15. In fact,
Jones suffered no retaliation because retaliation requires
the exercise of a protected First Amendment right. Jones
was not exercising such a right. The Appellate Court's
decision is contrary to prior decisions of this Court and it
highlights a conflict between federal circuits on this issue.
However, even if his speech was protected, the Appellate
Pimelie PPG AS Sole cere
PAAR ES
Pious Ore
AEDES CERI LA EEE MT EVP
21
Court erred in not applying the deferential Turner v. Safley
test to it.
A. THE APPELLATE COURT’S DECISION CON-
FLICTS WITH PRIOR DECISIONS OF THIS
COURT AND OTHER CIRCUITS, UNDER
WHICH JONES’ SPEECH WAS NOT PRO-
TECTED.
After this case-was tried and the appeal briefed, this
Court decided Shaw v. Murphy, supra. Shaw clarified that
prison speech regarding legal issues is not entitled to
greater protection than other types of speech by pris-
oners. Because Shaw was not decided until after the
appeal briefs in this action were filed, it could not have
been raised below. However, Shaw was decided before
entry of the Appellate Court’s decision and was available
to that court.
In Shaw, this Court faced the question of whether an
inmate possesses a right to provide legal assistance to
other inmates that affords him greater protections than
those attached to other forms of prison speech. The Court
recognized that federal circuits have taken differing posi-
tions on the issue of whether a prisoner’s right to provide
legal assistance to another prisoner was constitutionally
protected. The Court ended this conflict, holding that
“there is no such special right” to provide legal assistance
that enhances the protection offered to prisoners other-
wise available under Turner v. Safley, 482 U.S. 78 (1987).
Shaw, 121 S.Ct at 1478-79.
The Shaw decision was based on a recognition of the
realities of prison life and management. The Court
22
observed that the rights of prisoners are “more limited in
scope than the constitutional rights held by individuals in
society at large,” and that in the First Amendment con-
text “some rights are simply inconsistent with the status
of a prisoner or ‘with the legitimate penological objec-
tives of the corrections system,’ ” and reiterated its prac-
tice of deference to the judgments of prison officials. 121
S.Ct. at 1479. The Court then reaffirmed that it had
adopted “a unitary, deferential standard for reviewing
prisoners’ constitutional claims” in Turner, under which
there is no “special protection granted to particular kinds
of speech based upon its content.” Id. at 1479-80. Such
protection for legal advice would “undermine prison offi-
cials’ ability to address the ‘complex and intractable’
problems of prison administration.” Id. at 1480, citing
Turner, supra at 84. This Court held that “the proper
constitutional test” for inmate speech involving legal
assistance is “the one we set forth in Turner.” Shaw at
1480.
The circuits are unanimous in requiring that a pris-
oner bringing a retaliation claim show that the retaliation
came in response to the exercise of a protected constitu-
tional right. McDonald v. Hall, 610 F.2d 16, 18, 19 (1st Cir.
1979); Dawes v. Walker, supra, 239 F.3d at 491-492 (2nd
Cir.); Rauser v. Horn, supra, 241 F.3d at 333 (3rd Cir.);
Adams v. Rice, supra, 40 F.3d at 75 (4th Cir.); Jones v.
Greninger, supra, 188 F.3d at 324-325 (5th Cir.); Clarke v.
Stadler, supra, 121 F.3d at 231 (5th Cir.); Smith v. Campbell,
supra, 250 F.3d at 1037 (6th Cir.); Benson v. Cady, 761 F.2d
335, 342 (7th Cir. 1985); Rouse v. Benson, 193 F.3d 936, 940
(8th Cir. 1999); Pratt v. Rowland, supra, 65 F.3d at 805 (9th
Cir.); Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.
\
23
1998); Thomas v. Evans, supra, 880 F.2d at 1342 (11th Cir.);
Crawford-El v. Britton, supra, 93 F.3d at 825. However, they
are not unanimous in their views of which types of activ-
ities are constitutionally protected.
A number of circuits, in agreement with Shaw, have
held that a provision of legal assistance to other prisoners
is not a protected right for retaliation purposes. Johnson v.
Rodriquez, supra, 110 F.3d at 311 (5th Cir.); Tighe v. Wall,
100 F.3d 41, 42-43 (5th Cir. 1996); Peterson v. Shanks, supra,
149 F.3d at 1144 (10th Cir.); Smith v. Maschner, 899 F.2d
940, 950 (10th Cir. 1990). Some circuits have held that
prisoners have no constitutional right to participate in a
prison grievance procedure. Adams v. Rice, supra, 40 F.3d,
at 75 (4th Cir.); Smith v. Campbell, supra, 250 F.3d at 1037
(6th Cir.); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)
(per curiam). Others, in agreement with this court in
Lewis v. Casey, supra, have held that there is no right to an
unlimited use of a prison law library. Jones v. Greninger,
supra, 188 F.3d at 325 (5th Cir.); White v. Gregory, 87 F.3d
429 (10th Cir. 1996).
In the instant case, Jones did not testify, nor did the
Magistrate find, that his personal verbal criticism of
Nelson, his: supervisor in the law library, involved his
own cases or any cases of individual prisoners. Rather,
Jones’ speech dealt with Nelson’s management style and
her perceived shortcomings. There is no evidence that
Jones’ speech was prompted by any danger of a loss of
access to courts by any particular prisoner or that his
speech had any effect at all on anyone. Jones’ speech was
entitled to no constitutional protection. The Appellate
Court’s decision conflicts with Shaw and other cases hold-
ing that a prisoner has no right to give legal assistance to
24
other prisoners. If there is no right to give legal assistance
to other prisoners, then Jones had no protected right to
make verbal complaints to Nelson about how she man-
aged the law library where no direct assistance to any
inmate is at stake. And if, as the Fourth, Sixth, and Eighth
Circuits have held, there is no right to participate in a
grievance process, there is even less right to make infor-
mal oral complaints such as those made by Jones to
Nelson. If, as Lewis affirmed, there is no right to a law
library to begin with, there can hardly be a protected
right for a prisoner law clerk to complain to his super-
visor about the way she managed the law library, absent
evidence that a specific inmate was suffering actual
injury because of the actions Jones complained about.
B. IF JONES’ SPEECH WAS PROTECTED, THE
APPELLATE COURT ERRED IN NOT APPLY-
ING THE TURNER STANDARD TO EVALU-
ATE THE ALLEGED RETALIATORY ACT.
Jones was not exercising a protected right when he
complained to Nelson about her job performance. How-
ever, even if he was, under Shaw both the Magistrate and
Appellate Court erred by failing to apply the deferential
Turner test.
Nelson testified that she feared Jones, felt threatened
by him and was uncomfortable with his being an agent of
the Attorney General’s Office while employed as a law
clerk. Prison officials testified about the reasons for the
Louisiana transfer of which Jones was to have been a part
and the criteria for selecting prisoners to be transferred.
Applying Turner would have required the Magistrate and
ee ae eT Ss ‘
25
Appellate Court to determine (1) whether Nelson’s
efforts, if any, served a legitimate penological purpose
and whether the Louisiana transfer and the selection
process for that transfer served such a purpose, (2)
whether there were alternate means for Jones to exercise
his First Amendment rights, (3) the impact of accom-
modation of his rights on guards, other inmates and
prison resources generally, and (4) the absence of ready
alternatives available to Nelson or the Department for
achieving their objectives. Shaw, 121 S.Ct. at 1479, citing
Turner, 482 U.S. at 89-90.
Instead of applying Turner, the Magistrate and
Appellate Court simply concluded that Jones’ speech was
entitled to special protections that outweighed the evi-
dence in the record that a transfer was justified. The
Magistrate and Appellate Court failed to exercise appro-
priate deference and chose instead to substitute their own
judgment for prison officials, ignoring the evidence to the
contrary. They erred in doing so. This case merits review
because the Appellate Court’s failure to defer to prison
authorities and to recognize their unique expertise to
conduct the business of their institutions, invites micro-
management and second-guessing by federal courts that
will emesh federal courts in state prison systems.
¢
CONCLUSION
The decision of the Appellate Court is in conflict with
prior decisions of both this Court and of courts in other
federal circuits. This case presents the opportunity for the
Court to clarify the law, make it uniform and give much-
26
needed guidance to lower courts likely to face similar
issues again and again.
Jones lacked standing. Although he demonstrated no
adversity at all and never halted his First Amendment
activity, the Appellate Court held that he had suffered a
chill that even the Magistrate declined to find and that
Jones himself never recognized. In contrast to the Ninth
Circuit, the Second, Third, Sixth, and D.C. Circuits have
applied an objective firmness test which requires a prison
retaliation plaintiff to demonstrate a demonstrable actual
injury. Like this Court in Sandin, the objective firmness
test focuses on the result of the action and how it impacts
the prisoner in the prison context. Like this Court in
Lewis, the objective firmness test requires that a prisoner
suffer an actual, rather than hypothetical, injury before
prison officials must defend their actions in court. Like
this Court in Ramsey, the objective firmness test requires
more than a de minimis, “wholly subjective” chill. Defen-
dants urge this Court to grant a writ of certiorari to
consider adopting the ordinary firmness test as an objec-
tive measure of injury, and thus standing, in prison retal-
lation cases.
Jones’ oral complaints to Nelson about her perceived
shortcomings as a law librarian were not constitutionally
protected speech. The Magistrate and Appellate Court
erred in holding that his speech was protected, and the
Appellate Court’s decision is in conflict with this Court's
Shaw decision and decisions of other federal circuits.
Even if the speech was protected, the Appellate Court
should have applied the deferential four-part test set
forth in Turner v. Safley to evaluate the reasons offered for
Jones’ transfers which, in any event, never took place.
27
According to that test, and in light of the record, the
Appellate Court should have deferred to the judgment of
prison officials rather than substituting their own judg-
ment.
This case also merits review because of what it is
likely to lead to if uncorrected.
This case offers the Court the opportunity to prevent
the unnecessary entanglement of federal courts in the
affairs of state prisons, as exemplified by Jones’ cancelled
Louisiana transfer. It is the job of prison officials, and not
courts, to run prisons. The Appellate Court’s second-
guessing of the reasons offered for an everyday decision
such as a prisoner transfer in the face of legitimate
penological reasons for that transfer is an example of
what happens when a court steps into the shoes of prison
manager.
This case also offers the Court the opportunity to
prevent prisoners who have suffered no injury from
bringing baseless retaliation claims which are no more
than “reverse retaliation” against prison officials. Under
the Appellate Court’s reasoning, a prisoner may sue
prison officials for simply thinking about transferring
him. A prisoner who is given a disciplinary citation has
standing to sue the officer who issued the citation, even if
he is not punished. Similarly, prisoners could bring retal-
iation claims against officials who did no more than
consider upgrading their custody status, think about
placing them in administrative segregation even if they
were never actually segregated, or recommend that their
parole be denied even if they were actually paroled.
28
Because of the threat of such suits, prison manage-
ment will become an even more difficult proposition than
it already is. The phrase “Don’t even think about it” will
acquire an entirely new meaning when prisoners realize
how to apply the Ninth Circuit’s new expansion of their
rights. Prisoners will seek to protect against transfer,
termination or discipline merely by complaining about
the way a prison employee does his job and claiming to
be threatened with retaliation
Finally, this case has furthered an already anomalous
application of retaliation law. As noted above, in the
Ninth Circuit it is more difficult for a free citizen to bring
a retaliation claim than it is for a prisoner to bring the
same claim. The free citizen must have suffered an injury;
the prisoner need not have done so.
The great irony of this case is that it is one in which
the system worked. Nothing happened to Jones, and his
actions received the tacit endorsement of the deputy war-
den who overruled Nelson’s attempts to transfer him.
Nothing needed to be corrected. Yet Jones obtained an
injunction that constrains the way prison officials must
treat him in the future.
29
For all of the above reasons, Petitioners respectfully
urge the Court to grant certiorari in order to review this
case.
——
Respectfully submitted,
ALAN G. LANCE
Attorney General
MIcHAEL A. HENDERSON
Deputy Attorney General
Division Chief, Criminal Division
. Paut R. PANTHER*
Deputy Attorney General
1299 North Orchard St., Suite 110
Boise, Idaho 83706-2266
(208) 658-2097
*Counsel of Record
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App. 1
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Noe. Puente Gomez; LEE MAzur
Hays; Bos Jones; ALFREDO ROMAN;
Patrick Hatt; MarQ BARTLETT;
GreGory JOsEPH NELSON,
Plaintiffs-Appellees,
V.
A.V , Director, .
RICHARD ERNON, Virector, No. 99-35930
IDAHO DEPARTMENT OF CORRECTIONS;
Dave Paskett, WARDEN, IDAHO D.C. No.
STATE CORRECTIONAL INSTITUTION; CV-91-00299-LMB
James C. SPALDING, D1RECTOR,
IDOC; Jot Kiauser, Warden, ISCi; OF
(Filed
Defendants-Appellants, July 10, 2001)
ALAN Lee BRANDT,
Defendant-Intervenor-
Appellant,
V.
EuGENE STARR; RICHARD CARL;
Bossy Rowe.t; ALREDO EsPARZA,
Plaintiffs-Intervenors-
Appellees.
meee eee eee ee ee ee ee”
Appeal from the United States District Court
for the District of Idaho
Larry M. Boyle, Magistrate, Presiding
Argued and Submitted
February 14, 2001 - Seattle, Washington
App. 2
Before: M. Margaret McKeown, Kim McLane Wardlaw,
and Ronald M. Gould, Circuit Judges.
Opinion by Judge McKeown;
Concurrence by Judge Gould
COUNSEL
Timothy D. Wilson, Office of Attorney General, State of
Idaho, Boise, Idaho for the defendants-appellants.
Stephen L. Pevar (argued), American Civil Liberties
Union, Denver, Colorado; Margaret Winter, Donna H.
Lee, and Eric Balaban, National Prison Project of the
ACLU Foundation Inc., Washington, D.C.; Howard
Belodoff, Boise, Idaho, for the plaintiffs-appellees.
OPINION
McKEOWN, Circuit Judge:
This case exemplifies antagonism toward prisoner
litigation at the cost of constitutional rights and legal
ethics. While all may be fair in war, such is not the case
in the judicial arena - the courtroom is not a battlefield.
After a nineteen-day trial, the district court, Magistrate
Judge Boyle presiding, found that the Idaho Department
of Corrections, two of its penal institutions, and several
officials (collectively the “Department”) retaliated against
inmates who filed lawsuits or availed themselves of
1 “All’s fair in love and war.” Francis Smedly, Frank
Fairleigh (1850); “The rules of fair play do not apply in love and
war.” John Lyly, Euphues (1578).
App. 3
grievance procedures. The conclusion that the Depart-
ment violated the inmates’ constitutional rights is not
challenged on appeal. Rather, we are called upon to
address whether, for purposes of jurisdiction, the parties
consented to appear before the magistrate judge; whether
the grant of injunctive relief was an appropriate remedy
for the retaliation; and whether a court may impose sanc-
tions under its inherent power and 28 U.S.C. § 1927 when
counsel? for the state improperly acquired and used priv-
ileged and confidential litigation materials belonging to
inmate litigants. We answer these questions in the affir-
mative, and we affirm.
BACKGROUND
Factual Background.*
The Department, like many prison systems, employs
inmates as law clerks in its prison libraries to help other
inmates file legal papers, such as habeas corpus petitions
or civil rights claims, and to prepare grievances or other
administrative complaints. Inmates enjoy access to the
law libraries, and the assistance of the inmate law clerks,
as a guarantee of their due process right to access to the
courts. See Bounds v, Smith, 430 U.S. 817, 828 (1977) (hold-
ing that “ ‘the fundamental constitutional right of access
2 Counsel representing the Department on appeal was not
involved in the misconduct or sanctions at issue in this appeal.
3 This factual summary is drawn from the district court's
extensive findings of fact, which are not challenged on appeal,
and which accompany the Memorandum Decision and Order
and the Memorandum Decision and Order Relating to Plaintiffs’
Motion for Sanctions,
App. 4
to the courts requires prison authorities to assist inmates
in the preparation and filing of meaningful legal papers
by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law’ ”).
In the Idaho prison system, however, access to the
assistance of law clerks and the libraries was not neces-
sarily a risk-free proposition. For example, inmate prepa-
ration of legal documents and prosecution of legal
activities became a basis for retaliation against inmate
clerks. In 1985, Lee Hays worked as an inmate law clerk
at the Idaho Correctional Institute-Orofino (ICI-O). In
that role, he assisted fellow male inmates in filing habeas
corpus petitions and civil rights claims against the prison
and various prison personnel. This attracted the attention
of the prison staff, who, in the presence of the warden,
instructed Hays to stop. After Hays filed more suits, the
warden arranged for him to be transferred to the Idaho
State Correctional Institution (ISCI) in Boise. Although
Hays was supposedly transferred for a rule infraction —
interacting with female inmates - that reason was pretex-
tual. He trained female law clerks as part of his law clerk
duties and did so only on instructions and under supervi-
sion of a corrections lieutenant.
Similar consequences befell other inmates who took
legal action. In 1987, inmate Patrick Hall filed multiple
civil rights claims against the Department on behalf of
other inmates. Hall subsequently lost his job in the ISCI
law library, purportedly because he only offered legal
help in exchange for a share of any damages award - a
charge that was unsubstantiated. In 1993, an ISCI Disci-
plinary Hearing Officer threatened to confine and disci-
pline another inmate, Wayne Olds, if in line with his
App. 5
standard duties as a law clerk, he helped an inmate
prepare for a disciplinary hearing. Olds was later trans-
ferred from ISCI to ICI-O in retaliation for the number of
“concern forms” and grievances he filed, together with
his persistence in prosecuting a federal civil rights case.
Two years later, inmates Thomas Sanger and Carl Shively
were fired from their janitorial jobs in retaliation for
signing affidavits used in litigation against the Depart-
ment. And Idaho Maximum Security Institution (IMSI)
officials intimidated inmate Michael McDonald for filing
a grievance against an officer, forcing him to withdraw
his grievance and to plead guilty to a disciplinary infrac-
tion. This series of retaliatory acts all stemmed from the
inmates’ constitutionally protected efforts to access the
courts and the grievance process.
The operation and condition of the inmate law
libraries and related complaints also became an issue in
the Idaho prison system. Inmate Alfredo Roman, who
worked as a law clerk in the IMSI library, kept a logbook
documenting what he perceived as operational problems.
One such problem was a corrections officer’s habit of
reading the inmates’ legal documents. Roman took his
concerns and his logbook to the law library supervisor,
Corrections Officer Michelle Nelson. Ms. Nelson
responded by removing Roman from his library job and
placing him under investigation for keeping his logbook
(which she considered “non-legal materials”) in the law
library. He eventually received two disciplinary citations.
Similarly, in 1997, inmate Bob Jones, a law clerk at the
ISCI iaw library, confronted Nelson with his concerns
about management of the law library. As a result, Nelson
repeatedly attempted to have Jones transferred, first to
App. 6
ICI-O, and then to a prison facility in Louisiana. Finally,
Jones resigned his job at the law library to avoid a trans-
fer.
Deputy Warden George Miller took over supervision
of the ISCI law library in November 1998. Although he
was aware that the library needed at least six inmate law
clerks to facilitate minimal access to the court system, he
reduced the staff to four and at times allowed it to drop
to two. Miller knew that the number of law clerks work-
ing in the library fell below what was minimally ade-
quate. The district court found that the reduction in law
clerks “was substantially motivated by a desire to prevent
inmates’ access to the court system.”
No officer or employee of the Department was ever
investigated or disciplined for retaliatory action, despite
the wardens’ knowledge of the complaints.
Plaintiff-appellees, inmates in the Idaho corrections
system, brought this suit for damages and injunctive
relief as a class action on behalf of themselves and other
inmates. They worked on the case themselves, and were
represented by outside counsel, with whom they corre-
sponded in writing. As it turned out, the confidentiality
of that correspondence was somewhat illusory. The
inmates kept their written materials, including notes,
research, and correspondence with their attorney, in two
three-ring binders marked “Gomez” - the name of this
lawsuit. In order to protect those materials and to main-
tain their confidentiality, the inmates stored the binders
in a restricted-access section of the ISCI law library. If an
inmate who worked on the case needed to read or use the
file, a request would be made to the librarian, who would
App. 7
retrieve the file and check it out to that individual. The
district court found that “the inmates could not have
done anything more to secure the confidentiality of these
documents because there are no areas in the prison that
are accessible only to inmates.”
The clearly-marked file, at some point, attracted the
attention of a prison employee, who in February 1997
made a copy of a letter from the inmates’ counsel to nine
inmates. The employee, who found the letter lying face-
up on the law library desk of an inmate law librarian,
gave the copy to the Department’s lead counsel in this
case, a Deputy Attorney General for the State of Idaho.
The letter contained a summary of the strengths of the
inmates’ claims. Department’s lead counsel kept the let-
ter, and did not notify opposing counsel, the court, or her
superiors that it was in her possession. It remained in her
desk “in-box” for the next eight months.
That was only the beginning of the trail of documents
from the prison library to Department’s lead counsel's
office. Four months later, another ISCI employee who
worked in the law library noticed, as he checked the
Gomez binders out to an inmate, that the binders con-
tained documents related to this litigation. He under-
stood the significance of the case because he had
previously worked on this very lawsuit as a paralegal for
the Department, and recognized documents in the binder
he had worked on in that capacity. The official contacted
the Department’s lead counsel and told her that some
documents indicated that the inmates’ outside counsel
may have misled the magistrate judge during an earlier
hearing with regard to whether inmates had suffered
App. 8
physical injury in retaliation for litigation. The Depart-
ment’s lead counsel told the prison official to copy the
documents and deliver them to her, which he did. Coun-
sel did not inform the court, the inmates, or their attorney
about the document disclosure.
The Department's lead counsel reviewed the mate-
rials, dividing them into four categories, one of which
consisted of documents she suspected were privileged.4
The next day she contacted her co-counsel, who was also
her supervisor, and they read several of the documents.
In their view, some of the letters demonstrated that the
inmates’ lawyer was defrauding the court. Believing that
they had come across evidence of fraud or contempt of
court, lead counsel continued to acquire other documents
from the inmates’ Gomez file. Neither she nor her co-
counsel informed opposing counsel that they had seen
the correspondence or other documents. Over the course
of the next five months, Department counsel received ten
additional copies of documents from prison employees.
Some four months after speaking to lead counsel
about the letters, and eight months after lead counsel had
first acquired documents, co-counsel decided to seek
advice. He consulted with his supervisor, who in turn
approached an official at the Idaho State Bar. The bar
official and the supervisor advised co-counsel not to read
any more documents and to turn over to the court those
documents that were in his possession. Nonetheless, both
* Despite her recognition that privilege might apply, she
reasoned that any privilege was waived by virtue of the
documents’ location - a section of the law library easily
accessible to prison employees.
App. 9
the lead counsel and her co-counsel, Idaho Deputy Attor-
neys General, continued to receive and read case-related
documents given to them by the prison employee, justify-
ing the continued receipt of documents on the ground
that the materials were “similar to what had already been
given to [them].”
Subsequently, the Department filed a motion for an
order to show cause why inmates’ counsel should not be
held in contempt of court, based on copies of the corre-
spondence between the inmates and their lawyer. The
documents purportedly showed that physical injury to
inmates was not as extensive as inmates’ counsel had
represented to the court in an earlier hearing. The court
denied that motion, concluding that the representations
of inmates’ counsel were well within the realm of accept-
able argument and did not constitute a fraud.
Trial and Findings.
After a nineteen-day bench trial, followed by a
lengthy series of evidentiary rulings, hearings, and var-
ious motions over the next several months, the district
court issued findings of fact and conclusions of law in the
underlying case. The court found the facts summarized
above, including repeated instances of retaliatory con-
duct. Significantly, the court found that
an investigation to determine whether illegal
retaliation had occurred was not conducted
even though prison administrators were faced
with allegations clearly indicating that correc-
tional officers had violated IDOC [Idaho Depart-
ment of Corrections] policy and conducted
App. 10
reprisals against an inmate who attempted to
seek relief through established . . . procedures.
The court granted a declaratory judgment that the
inmates were subjected to instances of unlawful retalia-
tion but denied class-wide prospective injunctive relief.
The court granted individual injunctive relief to six speci-
fied inmates.
Sanctions Order.
The inmates moved for an order to show cause why
Department counsel should not be sanctioned for their
conduct in reading, using, and failing to disclose their
access to the Gomez files. After a three-day hearing, the
court awarded sanctions of $4,500 ($3,500 in attorneys’
fees and $1,000 for costs and expenses) under the court’s
inherent power and 28 U.S.C. § 1927. The court found
that Department counsel had acquired materials that are
confidential and protected by the attorney-client privi-
lege. In addition, the court found that counsel had implic-
itly authorized and encouraged prison employees “to
secretly search for, inspect, examine, read, copy and then
deliver .. . confidential attorney-client correspondence or
documents” over a nine-month period. The court held
that Department counsel completely disregarded the
attorney-client privilege and ignored their individual eth-
ical duty to submit the materials to the court. The court
found, as a factual matter, that counsel’s actions in
acquiring and using the materials and in moving for
contempt created unnecessary litigation. Finally, the court
concluded that the state attorneys’ “breach|[ J[of] the
attorney-client privilege, as well as compromising the
App. 11
confidential communications flowing from the legal rep-
resentatives . . . constituted bad faith conduct and war-
rants the imposition of sanctions.”
ANALYSIS
I. Consent to Appear Before the Magistrate Judge
We first address the threshold jurisdictional question
of whether all parties consented to trial before the magis-
trate judge. Specifically, the Department argues that the
magistrate judge was without authority to order judg-
ment because IMSI Warden Dave Paskett had not con-
sented, in his official capacity, to appear before the
magistrate.
A magistrate judge may conduct civil proceedings
and order the entry of judgment only if the magistrate
judge has been “specially designated to exercise such
jurisdiction by the district court,” 28 U.S.C. § 636(c)(1),
and all parties clearly and unambiguously consent, Fed.
R. Civ. P. 73(b); Hajek v. Burlington N. R.R., 186 F.3d 1105,
1108 (9th Cir. 1999). Because the district court designated
the magistrate judge to hear this case, the issue we must
resolve is whether Warden Paskett consented. The con-
sent of the other parties is not at issue.
Section 636(c) “does not specify the precise form or
timing of the parties’ consent.” Kofoed v. Int'l Bhd. of Elec.
Workers, Local 48, 237 F.3d 1001, 1004 (9th Cir. 2001). It is
well settled that written consent authorizes a magistrate
judge to enter judgment. See Binder v. Gillespie, 184 F.3d
1059, 1063 (9th Cir. 1999). Absent such consent, however,
the magistrate judge lacks jurisdiction, and any judgment
App. 12
entered is a nullity, which we have no jurisdiction to
review. See Aldrich v. Bowen, 130 F.3d 1364, 1365 (9th Cir.
1997) (noting that the “record contain[ed] no written evi-
dence”); Estate of Conners v. O’Connor, 6 F.3d 656, 658 (9th
Cir. 1993) (holding that a magistrate judge’s judgment
without consent is a nullity).
Review of the record before us leaves little doubt that
all parties consented to proceed before the magistrate
judge. The original complaint named not only the Depart-
ment but Paskett in his capacity as warden of ISCI. Ail
counsel filed a written “Consent to Proceed Before a
United States Magistrate.” During the course of the litiga-
tion, Paskett became warden of IMSI and Joe Klauser
succeeded him as warden of ISCI. Before trial, the
inmates’ counsel sought to amend their complaint to,
among other things, substitute the appropriate defen-
dants. In a pretrial statement, counsel for the Department
declared that the Department did not object to the substi-
tution: “Defendants do stipulate to charging [sic] the
named Defendants.” In that same document, the Depart-
ment stated: “[the] parties have already agreed to trial of
this case before United States Magistrate Judge Larry M.
Boyle.” Read together, these clear and unambiguous stip-
ulations in the pretrial statement constitute consent to
proceed before the magistrate judge. See, e.g., General
Trading Inc. v. Yale Materials Handling Corp., 119 F.3d 1485,
1495 (11th Cir. 1997) (consent to trial before magistrate
was clearly expressed, even though the stipulation did
not list all defendants, but all defendants were present at
the status conference and their attorney signed the stipu-
lation). Accordingly, the magistrate judge had jurisdiction
App. 13
to enter judgment, and we have jurisdiction to entertain
this appeal.
Il. Retaliation
A. Causal Nexus
The district court’s 36-page order, which includes
extensive findings of fact, is a model of clarity and detail.
The Department does not challenge the factual findings;
nor, with the exception of Jones, infra section II.B, does it
dispute the district court’s legal conclusion that the
inmates suffered retaliation for the exercise of their First
Amendment rights. Rather, the Department argues, as a
matter of law, that the findings do not establish a causal
link between the official policy or custom of the prison
administrators and the retaliatory acts of the individual
prison officials.
A suit, like this one, against a governmental officer in
his official capacity is equivalent to a suit against the
governmental entity itself. McRorie v. Shimoda, 795 F.2d
780, 783 (9th Cir. 1986). Thus, the Department administra-
tors are liable in their official capacities only if policy or
custom played a part in the violation of federal law. Larez
v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991);
McRorie, 795 F.2d at 783.
A policy or custom may be found either in an affir-
mative proclamation of policy or in the failure of an
official “to take any remedial steps after the violations.”
Larez, 946 F.2d at 647; see also McRorie, 795 F.2d at 784
(custom inferred from failure to reprimand or discharge);
Grandstaff v. City of Borger, Texas, 767 F.2d 161, 171 (5th
App. 14
Cir. 1985) (“[S]ubsequent acceptance of dangerous reck-
lessness by policymaker tends to prove his preexisting
disposition and policy.”). For example, in Larez, we held
that the Chief of Police would be liable if “it was almost
impossible for a police officer to suffer discipline as a
result of a complaint lodged by a citizen.” Larez, 946 F.2d
at 647 (internal citation omitted).
The Department argues that the policy-making offi-
cial is liable only if he directly ordered the retaliation in
question. Where the retaliatory acts are traceable to a
custom or policy, however, it is unnecessary to demon-
strate that the decision-making official directly ordered
each act carried out under his edict. A custom or policy
establishes a general rule of behavior, which is to be
followed in a variety of circumstances, and even in the
absence of the policy-maker. See Larez, 946 F.2d at 647.
Moreover, a policy-maker’s pronouncement that he has
not or will not discipline officers that retaliated against
prison litigators is sufficient evidence of a policy or cus-
tom: those statements can “be[ ] considered to represent
[the prison’s] policy or custom of condonation of, and
acquiescence in, [retaliation] by its offic[ials].” Id.
The findings of fact detail the top administrators’
failure to investigate the retaliation complaints, the lack
of reprimand or discipline for the officers involved even
when their supervisors were aware of the complaints,
and the delegation of investigation to officers involved in
the grievances. This turn a-blind-eye approach does not
insulate the Department. On the contrary, the findings are
more than sufficient to support the conclusion that the
retaliatory acts were condoned by the officials, sufficient
to “ma[kl]e clear to officers that . . . they could get away
App. 15
with anything.” Id. The Department's failure to investi-
gate or correct constitutional violations supports the dis-
trict court’s finding that there was a policy or custom that
led to violation of the inmates’ rights.
B. Harm to Bob Jones
The Department also contends that the repeated but
ultimately unsuccessful attempts to transfer inmate Jones
are not retaliatory as a matter of law because the transfers
never took place. The reality is that in the face of repeated
threats of transfer because of his complaints about the
administration of the library, Jones eventually quit his
law library job. ‘According to the findings, Jones’ com-
plaints - protected by the First Amendment - related to
“how [the law library] was affecting the inmates’ right to
access the courts.” As we observed in Hines v. Gomez, 108
F.3d 265 (9th Cir. 1997), a retaliation claim may assert an
injury no more tangible than a chilling effect on First
Amendment rights. Id. at 269 (noting that “this court has
reaffirmed that prisoners may still base retaliation claims
on harms that would not raise due process concerns”); cf.
Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000) (without
alleging a chilling effect, a retaliation claim without alle-
gation of other harm is not actionable). It is the chilling
effect that forced Jones to quit his job, not a generalized
harassment claim. Therefore, the district court did not err
in finding, as a matter of law, that the Department retali-
ated against Jones, in violation of his First Amendment
rights.
App. 16
III. Injunctive Relief
The injunctive relief entered in this case was very
narrow and targeted at six specific individuals. Class-
wide prospective injunctive relief was denied. The dis-
trict court went to great lengths to discuss the legal
parameters for injunctive relief, the constitutional limita-
tions on court decrees directed to prison administrators,
the requirements of the Prison Litigation Reform Act, and
the importance of remedying unconstitutional conduct.
As the court explained,
in determining the appropriateness of relief in
the instant action, the Court has considered
when relief is appropriate, how relief must be
tailored when conditions of prison confinement
are challenged and the Court’s role in protecting
and preserving federally guaranteed rights.
Despite this careful tailoring, the Department argues that
‘the injunctive relief was granted in error because the
district court misapplied the standard for irreparable
injury and failed to properly limit the injunction’s scope.
In general, injunctive relief is “to be used sparingly,
and only in a clear and plain case.” See Rizzo v. Goode, 423
U.S. 362, 378 (1976) (internal quotation omitted). “A dis-
trict court’s grant of permanent injunctive relief is
reviewed for an abuse of discretion or application of
erroneous legal standards.” Planned Parenthood of S. Ariz.
v. Lawall, 180 F.3d 1022, 1027 (9th Cir. 1999) (citing Easy-
riders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1493
(9th Cir. 1996)). When a government agency is involved,
we must, in addition, observe the requirement that the
government be granted the “widest latitude in the dis-
patch of its own internal affairs.” Rizzo, 423 U.S. at 378-79
App. 17
(citations omitted); see also Lewis v. Casey, 518 U.S. 343,
349 (1996) (“[I]t is not the role of courts, but that of the
political branches, to shape the institutions of govern-
ment in such fashion as to comply with the laws and the
Constitution.”). When a state agency is involved, these
considerations are, if anything, strengthened because of
federalism concerns. See O'Shea v. Littleton, 414 U.S. 488,
499 (1974) (“proper balance in the concurrent operation of
federal and state courts counsels restraint against the
issuance of injunctions against state officers”). Accord-
ingly, injunctive relief is appropriate only when “irrepar-
able injury” is threatened, City of Los Angeles v. Lyons, 461
U.S. 95, 111 (1983), and any injunctive relief awarded
must avoid unnecessary disruption to the state agency's
“normal course of proceeding,” O'Shea, 414 U.S. at 501.
This well-established standard for injunctive relief
must also be viewed in conjunction with the requirements
of the Prison Litigation Reform Act, 18 U.S.C. § 3626
(“PLRA”).5 Under the PLRA, the court must find that the
5 The PLRA provides, in relevant part:
Prospective relief in any civil action with respect to
prison conditions shall extend no further than
necessary to correct the violation of the Federal right
of a particular plaintiff or plaintiffs. The court shall
not grant or approve any prospective relief unless the
court finds that such relief is narrowly drawn,
extends no further than necessary to correct the
violation of the Federal right, and is the least
intrusive means necessary to correct the violation of
the Federal right. The court shall give substantial
weight to any adverse impact on public safety or the
operation of a criminal justice system caused by the
relief.
App. 18
prospective relief is “narrowly drawn, extends no further
than necessary to correct the violation of the Federal
right, and is the least intrusive means necessary to correct
the violation of the Federal right,” before granting injunc-
tive relief. 18 U.S.C. § 3626(a)(1). Accordingly, “before
granting prospective injunctive relief, the trial court must
make the findings mandated by the PLRA [and must]
give ‘substantial weight to any adverse impact on public
safety or the operation of a criminal justice system caused
by the relief.’ ” See Oluwa v. Gomez, 133 F.3d 1237, 1239
(9th Cir. 1997) (quoting 18 U.S.C. § 3626(a)(1)) (holding
that Congress explicitly prescribed section 3626’s reach to
include pending cases).
Although the PLRA significantly affects the type of
prospective injunctive relief that may be awarded, it has
not substantially changed the threshold findings and
standards required to justify an injunction. To this extent,
we agree with the Sixth Circuit that “the [PLRA] merely
codifies existing law and does not change the standards
for determining whether to grant an injunction.” Smith v.
Ark. Dep't of Corr., 103 F.3d 637, 647 (6th Cir. 1996).
A. Irreparable Injury
To satisfy the requirement of irreparable injury, a
plaintiff must demonstrate a “real or immediate threat
18 U.S.C. § 3626(a)(1)(A). Because this is a “civil proceeding
arising under Federal law with respect to . . . the effects of
actions by government officials on the lives of persons confined
in prison,” it is a prison conditions case for purposes of the
PLRA. 18 U.S.C. § 3626(g)(2).
App. 19
that the[y] will be wronged again - a ‘likelihood of sub-
stantial and immediate irreparable injury.’ ” Lyons, 461
U.S. at 111 (quoting O’Shea, 414 U.S. at 502); see also Lewis,
518 U.S. at 349 (courts limited to “provid[ing] relief to
claimants, in individual or class actions, who have suf-
fered, or will imminently suffer, actual harm”). “A state
law enforcement agency may be enjoined from commit-
ting constitutional violations where there is proof that
officers within the agency have engaged in a persistent
pattern of misconduct.” Thomas v. County of Los Angeles,
978 F.2d 504, 508 (9th Cir. 1992). See also Walters v. Reno,
145 F.3d 1032, 1048 (9th Cir. 1998) ( “Injunctive relief is
appropriate in cases involving challenges to government
policies resulting in a pattern of constitutional viola-
tions.”).
The record demonstrates that continued retaliation
for inmates’ exercise of their constitutional rights is a real
threat. As found by the district court, the inmates have
proven that the Department retaliated against them for
exercising their right to access the courts on a number of
occasions spanning a decade, and that the retaliation was
pursuant to a custom or policy. Despite supervisors’
knowledge of this pattern, no investigation, no discipline,
and no corrective action followed. Now the Department
claims that its employees will not retaliate again. The
district court, however, found little comfort in that proc-
lamation because no policy or mechanism is in place to
back up that promise.® Cf. United States v. Odessa Union
6 The district court noted “that [Department] officials
testified at trial that they have not created a rule which prohibits
individual officers from improperly asserting influence upon a
App. 20
Warehouse Co-op, 833 F.2d 172, 176 (9th Cir. 1987) (“Courts
must beware of attempts to forestall injunctions through
remedial efforts and promises of reform that seem timed
to anticipate legal action, especially when there is the
likelihood of recurrence.”). The court concluded that
some relief is necessary to prevent future retaliatory
transfers and to expunge the records of references based
on retaliatory action. Implicit in these rulings is a deter-
mination that, absent the injunction, the likely harm
would be irreparable.
B. Scope of Injunction
Having concluded that the circumstances justify
injunctive relief, we must next determine whether the
relief granted was properly tailored. See Lewis, 518 U.S. at
360 (“The scope of injunctive relief is dictated by the
extent of the violation established”) (internal quotation
omitted). Accordingly, we must consider whether the
court’s “exercise of equitable discretion . . . heel[s] close
to the identified violation and respect[s] the interests of
state and local authorities in managing their own affairs,
consistent with the Constitution,” Gilmore v. People of the
State of California, 220 F.3d 987, 1005 (9th Cir. 2000) (cita-
tion and internal quotation marks omitted), and, in the
language of the PLRA, whether it “extends no further
than necessary to correct the violation of the Federal
right, and is the least intrusive means necessary to correct
the violation of the Federal right.” 18 U.S.C. § 3626(a)(1).
transfer coordinator in order to include a burdensome and
litigious inmate on the list of inmates that are to be transferred.”
App. 21
We hold that the relief was appropriately tailored, and is
the least intrusive means to correct the violation. Thus,
the district court did not abuse its discretion.
The district court properly limited its injunction to a
combination of prospective and retrospective relief
granted to just six inmates, denying class-wide injunctive
relief. Three inmates received retrospective relief — cer-
tain references were expunged from Roman's Disciplin-
ary Offense Report; and Sanger and Shively were
restored to janitorial employment at their pre-retaliation
pay level, and all retaliatory disciplinary references were
cleared from their institutional files. Because the retro-
spective relief does not raise the same federalism con-
cerns as a court’s ongoing supervision in a prison’s
affairs, and because it was limited to remedying the
prison’s retaliatory acts, such relief passes constitutional
muster. See Lewis, 518 U.S. at 357.
Five inmates received prospective relief. The district
court enjoined the Department from adversely affecting
Sanger’s and Shively’s pay level and employment
because of this lawsuit. The judge also required the
Department to ensure that any decision to transfer
inmates Hays, Jones, and Olds satisfied objective criteria,
was not influenced by individual officers who might be
the subject of a lawsuit or grievance, and was not taken
as a result of the inmates’ exercise of their federally
guaranteed rights. None of these remedies requires the
continuous supervision of the court, nor do they require
judicial interference in the running of the prison system.
Cf. Rizzo, 423 U.S. at 369; O’Shea, 414 U.S. at 493 (revers-
ing injunction requiring district court to scrutinize
county’s criminal justice system to ensure state court
App. 22
officials did not deprive the plaintiff class of their consti-
tutional rights); Lyons, 461 U.S. at 100 (reversing city-
wide injunction preventing police use of choke-holds,
and requiring regular officer training and record keep-
ing). Indeed, the magistrate judge declared that he had
“no intention of overseeing prison inmate transfer opera-
tions to the extent requested by Plaintiffs.” And, as
required by the PLRA, the prospective relief focused
specifically on those few actions necessary to correct
violations of individual inmates’ rights.
In sum, the relief granted addressed only the harm
caused each individual inmate. It did not apply to the
prison system as a whole, or even to classes of prisoners.
At most, the injunction affects a few isolated decisions
over the course of these inmates’ sentences. In the face of
page after page of findings with regard to violation of the
inmates’ constitutional rights, the narrow injunction can
only be characterized as minimal and virtually non-intru-
sive. Accordingly, the court did not abuse its discretion in
granting such narrowly drawn injunctive relief.
IV. Sanctions
This case presents the remarkable circumstance
where counsel for the state received, read, and used
bootlegged copies of legal correspondence between
inmates and their lawyer. The district court imposed
sanctions against defense counsel — under both its inher-
ent power and its statutory authority pursuant to 28
U.S.C. § 1927 — for this misconduct. At issue are, as the
court put it, sanctions for counsel’s “secretly acquiring,
reading, retaining, sharing [privileged] information
App. 23
. and using information for potential tactical advan-
tage....” Although this is strong language, the record
amply supports the court’s findings and conclusions that
the documents were privileged, that counsel violated the
privilege and their ethical duty, and that sanctions were
justified.
We address first the question of privilege, and next
whether sanctions were warranted under the court's
inherent power and 28 U.S.C. § 1927.
A. Attorney-Client Privilege
Federal common law recognizes a privilege for com-
munications between client and attorney for the purpose
of obtaining legal advice, provided such communications
were intended to be confidential. See generally WEIN-
STEIN’S FEDERAL EVIDENCE, Chp. 503. The attorney-
client privilege has been recognized as “the oldest of the
privileges for confidential communications known to the
common law.” Upjohn Co. v. United States, 449 U.S. 383,
389 (1981). Practicing attorneys recognize the importance
of the privilege and the safe harbor that it provides to
encourage “full and frank communication between attor-
neys and their clients and thereby promote broader pub-
lic interest in the observance of law and administration of
justice.” Id.
App. 24
Both the Supreme Court and this court have under-
scored the importance of the privilege, even where an
attorney seeks to invoke the crime-fraud exception:7
[U]nder United States v. Zolin, 491 U.S. 554
(1989), the district court could not consider the
contents of a privileged letter in assessing the
government's prima facie case until the govern-
ment had, as a threshold matter, presented non-
privileged evidence “sufficient to support a
reasonable belief that in camera review may
yield evidence that establishes the exception’s
applicability.”
United States v. de la Jara, 973 F.2d 746, 748 (9th Cir. 1992).
The privilege, however, is not absolute. The privilege
may be waived by the client either implicitly, by placing
privileged matters in controversy, or explicitly, by turning
over privileged documents. Inadvertent disclosure can
also result in a waiver of the privilege. See Weil v. Invest-
ment/Indicators, 647 F.2d 18, 24 n. 11 (9th Cir. 1981). But, as
we have held, when there has been an involuntary dis-
closure, the privilege will be “preserved if the privilege
holder has made efforts ‘reasonably designed’ to protect
the privilege. . . . Conversely . . . the privilege [will be
deemed] to be waived if the privilege holder fails to
7 The attorney-client privilege does not extend to
communications in furtherance of a crime or fraud. See United
States v. Zolin, 491 U.S. 554, 562-63 (1989). The district court
explicitly rejected the argument and the Department does not
argue before this court, as it did before the district court, that
the materials fall under this exception. Rather, they rely on their
argument that the privilege was waived.
App. 25
pursue all reasonable means of preserving the confiden-
tiality of the privileged matter.” de la Jara, 973 F.2d at 750
(internal citation omitted). See also Moore’s Federal Prac-
tice 3d § 26.47[5].
The pitfalls of inadvertent disclosure and the
dilemma posed for counsel who are in receipt of such
materials has prompted the American Bar Association
Standing Committee on Ethics and Professional Respon-
sibility to issue two formal opinions on the subject. These
opinions reflect some of the same principles articulated in
Zolin. In November 1992, the Committee issued an opin-
ion, based upon the Model Rules of Professional Conduct,
relating to the inadvertent disclosure of confidential
materials. The opinion provides:
A lawyer who receives materials that on their
face appear to be subject to the attorney-client
privilege or otherwise confidential, under cir-
cumstances where it is clear that they were not
intended for the receiving lawyer, should refrain
from examining the materials, notify the send-
ing lawyer and abide the instructions of the
lawyer who sent them.
ABA Comm. on Ethics and Prof’l Responsibility, Formal
Op. 368 (1992). Two years later, the Committee issued
another formal opinion, this one regarding the
unsolicited receipt of privileged or confidential materials.
The committee stated:
A lawyer who receives on an unauthorized basis
materials of an adverse party that she knows to
be privileged or confidential should, upon rec-
ognizing the privileged or confidential nature of
the materials, either refrain from reviewing such
materials or review them only to the extent
App. 26
required to determine how appropriately to pro-
ceed; she should notify her adversary’s lawyer
that she has such materials and should either
follow instructions of the adversary’s lawyer
with respect to the disposition of the materials,
or refrain from using the materials until a
definitive resolution of the proper disposition of
the materials is obtained from a court.
ABA Comm. on Ethics and Prof’l Responsibility, Formal
Op. 382 (1994).
In the present case, the district court found that
counsel implicitly authorized and encouraged depart-
ment employees to search for and photocopy letters from
opposing counsel that were kept in the inmates’ legal
files related to this case. This happened not once, or
twice, but several times over the course of over nine
months. The confidential status of the letters was facially
evident — they were on legal letterhead easily identifiable
as that of opposing counsel. One letter to an inmate ever”
specified that it was “for your eyes only.” But if that was
not enough, the contents of the letters remove all doubt.
They contained, in the words of the district court, a
“summary of [plaintiffs’ counsel’s] analysis of the
strengths of some of Plaintiffs’ claims, settlement pros-
pects and prospects for recovery at trial” — this at the
same time that the parties were conducting settlement
negotiations. The letters reviewed litigation strategy, the-
ories of the case, and other sensitive issues. Further corre-
spondence discussed the evidence available regarding
“actual injuries resulting from [the Department's] alleged
failure to provide constitutionally required access to the
courts.” In short, these documents were of the most sensi-
tive kind — the kind that any trial lawyer would recognize
% PENNER RE ELC I TEN
App. 27
as privileged, highly valuable, very confidential, and
potentially devastating in the wrong hands.
Thus, there can be no serious question that the mate-
rial in the present case was privileged. See In re Grand
Jury Investigation, 974 F.2d 1068, 1070-71 (9th Cir. 1992). In
sorting the materials into categories, including docu-
ments that might be privileged, the Department's counsel
demonstrated that they understood the legal import of
this treasure trove of documents. In fact, the significance
was explained to them more directly by an official from
the Idaho State Bar. Eight months after the first docu-
ments were acquired, co-counsel went to his superior,
who sought advice from the state bar. The bar official and
the supervisor advised co-counsel not to read any more
documents and to turn over to the court those already in
their possession. But, even with the advice of the Bar,
counsel for the State plowed ahead, receiving and read-
ing more documents. Finally, in a remarkable display of
chutzpah, counsel did go to the court - but with a motion
for contempt, premised on the inmates’ privileged docu-
ments.
Counsel for the state reasoned at the time, and the
Department continues to argue to this court, that the
inmates waived any applicable privilege by storing the
“Gomez” binders in a section of the library accessible to
prison employees. The Department’s argument that the
privilege was waived is without merit. Given the signifi-
cance of the documents, the inmates of course took steps
to maintain their confidentiality. As the district court
found, by marking the binders with the name of the case,
placing it on a restricted-access shelf, and requiring a
sign-out procedure for use of the file, “the inmates could
App. 28
not have done anything more to secure the confidentiality
of these documents because there are no areas in the
prison that are accessible only to inmates.”
Thus, the inmates’ actions to preserve the confiden-
tiality of the materials were not only reasonable, but were
found, as a question of fact, to be the best possible in the
prison context. The prison setting poses unique chal-
lenges to the privilege issue because of security and
physical layout considerations. And the prison, of course,
has a penological interest in curtailing ‘the prisoner’s
privacy rights. See Hudson v. Palmer, 468 U.S. 517, 530
(1984) (inmates have no expectation of privacy in their
living quarters); Bell v. Wolfish, 441 U.S. 520, 537 (1979)
(prisoner’s privacy rights curtailed by prison’s security
interests). The Department, however, does not urge us to
conclude that the reduced privacy required by penologi-
cal necessity renders it impossible for inmates to keep
privileged documents confidential. To so conclude would
undermine a critical component of the right of access to
the courts, namely, the opportunity to receive privileged
communications from counsel. As the Supreme Court has
held, the inmates’ First Amendment and other rights
pertaining to privileged correspondence are “not incon-
sistent with [their] status as . . . prisoners or with the
legitimate penological objectives of the correctional sys-
tem.” Pell v. Procunier, 417 U.S. 817, 822 (1974).
The district court found that the Department had in
place reasonable policies providing precautions that were
intended to protect and preserve the confidential nature
of attorney-client correspondence. We conclude that the
district court did not clearly err when it found that the
App. 29
inmates did all they could to secure the documents’ confi-
dentiality and that they did not waive the privilege.
B. Inherent Power
A court has the inherent power to sanction a party or
its lawyers if it acts in “willful disobedience of a court
order .. . or when the losing party has acted in bad faith,
vexatiously, wantonly, or for oppressive reasons,” as well
as for “willful[ ] abuse [of the] judicial processes.” Road-
way Express, Inc. v. Piper, 447 U.S. 752, 766 (1980) (internal
citations and quotations omitted); see also Chambers v.
NASCO, Inc., 501 U.S. 32, 46-47 (1991) (where litigant
“engaged in bad faith or willful disobedience of a court’s
order,” inherent power “extends to a full range of litiga-
tion abuses”). We review a court’s imposition of sanctions
for abuse of discretion. See Chambers, 501 U.S. at 55
(inherent power).
We recently addressed the appropriate basis for an
award of sanctions under a court’s inherent authority in
Fink v. Gomez, 239 F.3d 989 (9th Cir. 2001). We held that
Roadway and Chambers require that inherent-power sanc-
tions be preceded by a finding of bad faith, or conduct
tantamount to bad faith. Id. at 993. Under this standard,
although recklessness, of itself, does not justify the impo-
sition of sanctions, sanctions are available when reckless-
ness is “combined with an additional factor such as
frivolousness, harassment, or an improper purpose.” Id.
at 994. Sanctions, then, are justified “when a party acts for
an improper purpose — even if the act consists of making a
truthful statement or a non-frivolous argument or objec-
tion.” Id. at 992 (emphasis in original).
App. 30
We conclude that the district court did not clearly err
in finding conduct tantamount to bad faith here. See
Pacific Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210
F.3d 1112, 1117 (9th Cir. 2000) (district court’s finding as
to bad faith is reviewed for clear error). The notion that
receipt of privileged communications imposes a duty on
counsel to take some reasonable remedial action is hardly
a novel concept. It stems from common sense, ethical
rules and the origins of the privilege. Of course, had
Department counsel entertained any doubt that they pos-
sessed the materials improperly, the opinion of the Idaho
State Bar representative should have dispelled it. Yet -
and this is particularly troubling for us, as it was for the
trial court - the attorneys continued to collect and read
documents after being advised by the state bar to send
the documents to the court. As the district court con-
cluded, counsel “each had an individual ethical and pro-
fessional duty to immediately seal and submit to the
Court both the initial correspondence and the correspon-
dence subsequently received from [Department] person-
nel as soon as they became aware that the
correspondence involved confidential communications
between [inmates’ counsel] and the inmate plaintiffs.”
Department counsel’s actions in this case do not pass
even the most lenient ethical “smell test.” They know-
ingly disregarded advice from the bar counsel and
bypassed questions of ethics in an effort to gain advan-
tage in this litigation. Despite their roles as officers of the
court, they failed to inform the court of their possession
of the privileged materials until eight months after the
first acquisition. In view of the circumstances surround-
ing the acquisition and use of the privileged documents,
Pa I RT PT) ele at elie e nel SE Ri
r= ica tone bP Ent lit aS SA I. “it A ANP ad iam tat sib LE snl AI a PLB
App. 31
we conclude that the district court did not abuse its
discretion in finding that the attorneys acted in bad faith
and in imposing sanctions under the court’s inherent
power.
C. Section 1927
The court also based its sanctions decision on § 1927,
which authorizes sanctions against an attorney who
“multiplies the proceedings in any case unreasonably and
vexatiously. ...” 28 U.S.C. § 1927. Section 1927 requires a
finding of recklessness or bad faith. In re Keegan Mgmt.
Co., 78 F.3d 431, 436 (9th Cir. 1996). Sanctions are avail-
able'under § 1927, however, only if the attorney “unrea-
sonably and vexatiously” multiplies proceedings. 28
U.S.C. § 1927. In the present case, the Department's con-
tempt motion resulted in a hearing on that motion plus a
three-day evidentiary hearing on the follow-on sanctions
motion, in effect adding an extra “trial” to the declaratory
and injunctive relief action. The court found, as a ques-
tion of fact, that “[uJnnecessary litigation was created by
the series of events of secretly acquiring, reading, retain-
ing, sharing information with representatives of [the
Department], and using the information for potential tac-
tical advantage instead of promptly notifying opposing
counsel and/or submitting the documents to the
Court....” In the face of this finding, the court did not
abuse its discretion in awarding sanctions under § 1927.
In closing, the district court noted that the sanctions
were no more than necessary “in order to preserve the
time-honored principles involved or to maintain public
trust in the legal profession.” We agree. The result here
App. 32
does not set up an impractical or insurmountable hurdle
for counsel facing an ethical dilemma concerning privi-
leged documents. The path to ethical resolution is simple:
when in doubt, ask the court.
AFFIRMED.
GOULD, Circuit Judge, concurring in the judgment:
I concur in parts I, Il, Ill, IV.A, and IV.C of the
majority opinion and in the judgment affirming the dis-
trict court. The sanctions properly can be affirmed pur-
suant to 28 U.S.C. § 1927 because the conduct of counsel
for the state was so unjustified as to be in reckless disre-
gard of the inmates’ rights. United States v. Blodgett, 709
F.2d 608, 610 (9th Cir. 1983) ( “imposition of sanctions
under section 1927 requires a finding that counsel acted-
recklessly or in bad faith, while those imposed under the
court’s inherent power require a finding that counsel's
conduct constituted or was tantamount to bad faith”)
(internal quotation marks and citations omitted). I would,
however, stop short of holding that counsel for the state
acted in bad faith and I do not concur in part IV.B of the
majority opinion.
Counsel for the state made serious errors of judg-
ment. The record does not establish intentional acts of
subjective bad faith, however, because the record as a
whole supports that counsel proceeded under the mis-
taken assumption that the attorney-client privilege was
waived and advanced a mistaken theory that inmates’
counsel was committing a fraud on the court. I conclude
that counsel for the state were seriously wrong in their
PND a arn chen ce BE
App. 33
assessment on both these issues, but I do not conclude
that counsel acted with any intentional ill motive. Nor
would I sustain a finding of fact that government counsel
acted in bad faith; this determination rests on an issue of
degree affecting the possible waiver of privilege that was
debatable before the district court’s finding that inmates
took reasonable steps to protect confidential materials. In
any event, bad judgment is not tantamount to bad faith.
It is unfortunate that the important issues of inmates’
rights and legitimate penological concerns of the govern-
ment to a degree were obscured by distracting disputes
between counsel about their professional ethics. Initially,
counsel for the state challenged inmates’ counsel assert-
ing fraud on the court and asking for a contempt deter-
mination. Later, inmates’ counsel accused counsel for the
state of acting in bad faith, asking for a sanctions deter-
mination. The ethics dispute necessarily focused attention
on the lawyers and off the issues at stake between
inmates and corrections officials.
Based on the district court's findings, I would affirm
the imposition of sanctions without finding subjective
bad faith on the part of counsel for the state.
App. 34
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
NOEL PUENTE GOMEZ, ) Case No.
et al., ) CIV 91-0299-S-LMB
Plaintiffs, FINDINGS OF FACTS,
CONCLUSIONS OF LAW,
MEMORANDUM
DECISION AND ORDER
(Filed Mar. 16, 1999)
V.
JAMES C. SPALDING,
et al.,
Defendants.
eee eee eee ee
I.
INTRODUCTION
Plaintiffs represent a class consisting of all persons
who are now, or in the future may be, incarcerated at the
Idaho State Correctional Institution (ISCI) or at the Idaho
Maximum Security Institution (IMSI) operated by the
Idaho Department of Correction (IDOC). On June 21,
1991, Plaintiffs filed their original complaint pursuant to
42 U.S.C. § 1983 of the Civil Rights Act of 1871, alleging
that they had been denied meaningful access to the courts
as well as being subjected to unlawful retaliation for
exercising their rights guaranteed by the First Amend-
ment to the United States Constitution. Pursuant to the
complaint, Plaintiffs seek an injunction against Defen-
dants prohibiting them from denying inmates meaningful
access to the courts and from engaging in retaliatory
conduct.
The named Defendants consist of official capacity
administrators of IDOC, ISCI and IMSI. At the time the
App. 35
original complaint was filed, these administrative posi-
tions were held by IDOC Director Richard Vernon and
ISCI Warden Dave Paskett. At the time of trial, Defendant
James Spalding was the Director of IDOC, Defendant Joe
Klauser was the Warden at ISCI and Defendant Dave
Paskett was the Warden at IMSI.
On January 7, 1998, Defendants adopted a new access
to courts system and on January 16, 1998, the Court
bifurcated the trial to allow the retaliation allegations of
the instant action to proceed and continued the portion of
the trial with respect to the access to courts claims.
The trial on the retaliation claims commenced at the
courtroom in the Idaho Maximum Security Institution on
February 2, 1998 and concluded on March 20, 1998. After
the submission of post-trial memoranda, and proposed
findings of facts and conclusions of law, counsel for the
respective parties presented oral argument to the Court
on August 5, 1998. The retaliation aspect of this action is
fully submitted and is ready for final determination by
the Court.
Il.
STANDARDS APPLICABLE TO PLAINTIFFS’
RETALIATION CLAIMS
The Supreme Court of the United States has clearly
held that “lawful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our
penal system.” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct.
App. 36
2800, 2804, 41 L.Ed.2d 495 (1974) (quoting Price v. John-
ston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356
(1948)). In Pell, the Supreme Court went on to state:
In the First Amendment context a corollary of
this principle is that a prison inmate retains
those First Amendment rights that are not
inconsistent with his status as a prisoner or with
the legitimate penological objectives of the cor-
rections system. Thus, challenges to prison
restrictions that are asserted to inhibit First
Amendment interests must be analyzed in terms
of the legitimate policies and goals of the correc-
tions system, to whose custody and care the
prisoner has been committed in accordance with
due process of law.
Id. Plaintiffs allege that First Amendment rights, consis-
tent with both their status as prisoners as well as legiti-
mate penological objectives of the State, have been
deprived and thus they brought this instant action pur-
suant to 42 U.S.C. § 1983. Section 1983 provides:
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... .
“Section 1983 imposes two essential proof requirements
upon a claimant: (1) that a person acting under color of
state law committed the conduct at issue, and (2) that the
conduct deprived the claimant of some right, privilege, or
App. 37
immunity protected by the Constitution or laws of the
United States.” Leer v. Murphy, 844 F.2d 628, 632-33 (9th
Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101
S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other
grounds, Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct.
662, 663, 88 L.Ed.2d 662 (1986)).
Defendants take the position in this action that any
alleged conduct or acts were to fulfill valid penological
goals of the Department of Correction and not in retalia-
tion for the prisoners’ exercise of First Amendment pro-
tected activities.
The United States Court of Appeals for the Ninth
Circuit has held that prisoner retaliation claims, like
those alleged in the instant action, “state a valid cause of
action under § 1983.” Pratt v. Rowland, 65 F.3d 802, 806
(9th Cir. 1995). In 1995, the Ninth Circuit determined that
it was necessary to review those retaliation cases which
followed its earlier decision in Rizzo v. Dawson, 778 F.2d
527 (9th Cir. 1985), due to a subsequent decision issued
by the United States Supreme Court, Sandin v. Conner, 515
U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Although
the issue before the Supreme Court in Sandin did not
involve the proper elements of a § 1983 prisoner retalia-
tion claim, the Supreme Court used strong language
which indicated its desire to avoid “involvement of fed-
eral courts in the day-to-day management of prisons,
often squandering judicial resources with little offsetting
benefit to anyone.” 515 U.S. at 482, 115 S.Ct. at 2299. In
Sandin, the Supreme Court noted that when federal
courts become involved in such management they fail to
“afford appropriate deference and flexibility to state offi-
cials trying to manage a volatile environment” and that
App. 38
“Is]uch flexibility is especially warranted in the fine-
tuning of the ordinary incidents of prison life, a common
subject of prisoner claims” filed under § 1983. 515 U.S. at
482-83, 115 S.Ct. at 2299. After reviewing Sandin, the
Ninth Circuit upheld the contours of a retaliation claim as
pronounced in Rizzo and its progeny, but indicated that
they should be applied in light of the deferential attitude
articulated by the Supreme Court in Sandin. Pratt, 65 F.3at
806.
For a prisoner to properly state a claim under § 1983
for unlawful retaliation for a prisoner's attempts to exer-
cise First Amendment rights, the prisoner:
[MJust do more than allege retaliation because
of the exercise of his first amendment rights in
bringing and assisting in civil rights litigation;
he must also allege that the prison authorities’
retaliatory action did not advance legitimate
goals of the correctional institution or was not
tailored narrowly enough to achieve such goals.
Rizzo, 778 F.2d at 532. Thus, the prisoner, in an action
such as this currently before this Court, must submit
evidence establishing a link between the exercise of a
constitutional right and the alleged retaliatory action. See
Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir.
1989). Accordingly, the prisoner plaintiff bears the burden
of pleading and proving the absence of legitimate correc-
tional goals for the alleged retaliatory conduct at issue.
Pratt, 65 F.3d at 806. Further, the plaintiff must also
demonstrate that “the protected conduct was a ‘substan-
tial’ or ‘motivating’ factor in the defendant's decision” to
engage in the retaliatory conduct. Soranno’s Gasco Inc. v.
Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) (citing Mt.
App. 39
Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977)).
The Ninth Circuit has made it clear that it is “estab-
lished beyond doubt that prisoners have a constitutional
right of access to the courts” and that “{a] prisoner’s right
to meaningful access to the courts, along with his broader
right to petition the government for a redress of his
grievances under the First Amendment, precludes prison
authorities form [sic] penalizing a prisoner for exercising
those rights.” Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir.
1995) (internal quotations and citations omitted). “The
right of meaningful access to the courts extends to estab-
lished prison grievance procedures.” Id. (quoting Valand-
ingham, 866 F.2d at 1138). Further, the Ninth Circuit has
held that not only is a prisoner’s own pursuit of legal
relief constitutionally protected, but the First Amendment
also provides protection to a prisoner who assists fellow
inmates’ access to the court system. Rizzo, 778 F.2d at 531
(citing Owens v. Rush, 654 F.2d 1370 (10th Cir. 1981)).
Additionally, while a prisoner does not have a constitu-
tionally protected right to government provided benefits
such as prison employment or being housed at a certain
facility or cell assignment, those benefits may not be
withheld or withdrawn in such a manner that infringes
upon rights protected by the First Amendment. Vignolo v.
Miller, 120 F.3d 1075, 1077 (9th Cir. 1997) (“a State may
not use its control over discretionary government benefits
in a manner that places excessive burdens on certain
constitutional rights”) (citing Perry v. Sindermann, 408
U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972));
Pratt, 65 F.3d at 806 (a prisoner may not be moved to a
new prison in retaliation for exercising First Amendment
App. 40
rights, “despite the fact that prisoners generally have no
constitutionally-protected liberty interest in being held at,
or remaining at, a given facility”).
A plaintiff alleging retaliation must establish that the
challenged actions of correctional authorities did not
advance valid penological goals or were not narrowly
tailored to achieve such goals. The Supreme Court has
held that “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reason-
ably related to legitimate penological interest.” Turner v.
Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64
(1987). In Turner, the Supreme Court:
{I]dentified four factors to consider when deter-
mining the reasonableness of a prison rule: 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 exer-
cising 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.”
Bradley v. Hall, 64 F.3d 1276, 1279-80 (9th Cir. 1995) (quot-
ing Turner, 482 U.S. at 89-90, 107 S.Ct. at 2261-62 (internal
quotations omitted)). While the issue before the Supreme
Court in Turner implicated the Due Process clause and not
a retaliation claim, the Supreme Court has stated that the
reasonableness standard for prison rules “applies to all
App. 41
circumstances in which the needs of prison administra-
tion implicate constitutional rights.” Washington v. Harper,
494 US. 210, 224, 110 S.Ct. 1028, 1038 (1990); see also Ward
v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993) (“the Supreme
Court has held that Turner applies to all constitutional
claims arising in prison with the exception of Eighth
Amendment claims”). “The burden is on the inmates to
show that the challenged regulation is unreasonable
under Turner.” Casey v. Lewis, 4 F.3d 1516, 1520 (9th Cir.
1993). Accordingly, in determining whether Defendants’
conduct in this instant action, challenged as retaliatory,
served legitimate penological concerns, the Court will
look to Turner for guidance.
Once a prisoner satisfies his burden to establish that
he suffered retaliation for engaging in a protected activity
and that such retaliation did not advance legitimate
penological concerns, the burden shifts to the defendant
to establish that the correctional activity would have been
undertaken even in the absence of the prisoner's pro-
tected conduct or “that the retaliatory action was nar-
rowly tailored to serve a legitimate penological purpose.”
Morgan, 874 F.2d at 1314 (citing Mt. Healthy, 429 U.S. at
287, 97 S.Ct. at 576); Guthrie v. Darosa, 1998 WL 227151, at
4 (N.D.Cal. 1998) (citing Schroeder v. McDonald, 55 F.3d
454, 461-62 (9th Cir. 1995)). The Ninth Circuit has indi-
cated:
Prison authorities cannot rely on general or con-
clusory assertions to support their policies.
Rather, they must first identify the specific
penological interests involved and then demon-
strate both that those specific interests are the
App. 42
actual bases for their policies and that the poli-
cies are reasonably related to the furtherance of
the identified interests. An evidentiary showing
is required as to each point.
Walker v. Sumner, 917 F.2d 382, 386 (9th Cir. 1990).
The Ninth Circuit has indicated that the proper role
for the courts in this type of action is not to second guess
prison administration and that “for a prison regulation to
pass muster ‘prison officials need merely put forward a
legitimate government interest, and provide some evi-
dence that the interest put forward is the actual reason
for the regulation.’” Bradley, 64 F.3d at 1280 (quoting
Casey v. Lewis, 4 F.3d at 1520-21 (internal quotations and
citations omitted)). Even when a regulation is determined
to be rationally related to a legitimate penological inter-
est, a reviewing court, “[w]here appropriate, . . . must
also look to see if the prison rule is an ‘exaggerated
response to prison concerns.’ ” Id. (quoting Turner, 482
U.S. at 89-90, 107 S.Ct. at 2261-62).
“In order to determine whether a rule, even if ratio-
nally related to a legitimate interest, is an exaggerated
response, [a court] must balance the importance of the
prisoner’s infringed right against the importance of the
penological interest served by the rule. [The court] must
also examine the strength of the logical nexus between
the penological purpose served and restriction of the
prisoner’s rights. . . . Thus, [the] analysis does not neces-
sarily end at the recognition that the prison rule was
adopted to serve, and actually does serve, a legitimate
penological interest. ‘Deference does not mean abdica-
tion.’ ” Id. (quoting Walker, 917 F.2d at 385). However, in
considering whether prison rules are an exaggerated
\
PA aint RRR cod RS TR BRR ee en RR te
App. 43
response to prison concerns, the reviewing court must
reach its decision in light of the principle that a “prison is
not required to adopt the least restrictive alternative.”
O'Keefe v. Van Boening, WSP, 82 F.3d 322, 327 (9th Cir.
1996) (citing Thornburgh v. Abbott, 490 U.S. 401, 410-11,
109 S.Ct. 1874, 1880 (1989); Turner, 482 U.S. at 90, 107 S.Ct.
at 2262).
In this instant action, Plaintiffs seek an injunction
which would prohibit Defendants from engaging in retal-
iatory conduct. In order to establish that such relief is
appropriate, Plaintiffs must establish a causal connection
between the named official-capacity Defendants and the
deprivation of their constitutional rights. Inasmuch as
Plaintiffs seek only injunctive relief, the causal connection
they are required to establish is broader and more gener-
alized than when a prisoner seeks to hold a prison
employee personally liable for damages. Leer v. Murphy,
844 F.2d 628, 633 (9th Cir. 1988). Therefore, the Court
must “focus on whether the combined acts or omissions
of the state officials responsible for operating the state’s
penal system created conditions that violate[d]” Plain-
tiffs’ right to engage in constitutionally protected activ-
ities without being subjected to retaliatory conduct. Id.
The Ninth Circuit has indicated that § 1983 liability
may be established against anyone who personally partic-
ipated in the deprivation, but also:
Anyone who “causes” any citizen to be sub-
jected to a constitutional deprivation is also lia-
ble. The requisite causal connection can be
established not only by some kind of direct per-
sonal participation in the deprivation, but also
by setting in motion a series of acts by others
App. 44
which the actor knows or reasonably should
know would cause others to inflict the constitu-
tional injury.
McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986)
(quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir.
1978)). Thus, in the prison context, liability may be estab-
lished against an official-capacity defendant by showing
that a pattern of misconduct by correctional officers
became so prevalent as to become a “policy or custom” of
which the supervisory officials were aware of, but failed
to eliminate. 795 F.2d at 783-84 (inferring actionable pol-
icy or custom after retaliatory assaults by prison officers
because supervisors failed to take appropriate steps to
discipline the officers or otherwise failed to admit that
the officers’ conduct was in error).
Thus, an official-capacity defendant's acquiescence in
staff misconduct may provide the required causal connec-
tion between such conduct and the constitutional depri-
vation. Such acquiescence may be established by showing
that the official-capacity defendants had knowledge of
the constitutional violations. The Supreme Court has
indicated:
Whether a prison official had the requisite
knowledge of a substantial risk is a question of
fact subject to demonstration in the usual ways,
including inference from circumstantial evi-
dence ..., and a factfinder may conclude that a
prison official knew of a substantial risk from
the very fact that the risk was obvious. .. . For
example, if an Eighth Amendment plaintiff pre-
sents evidence showing that a substantial risk of
inmate attacks was “longstanding, pervasive,
well-documented, or expressly noted by prison
Re eee ee eee
App. 45
officials in the past, and the circumstances sug-
gest that the defendant-official being sued had
been exposed to information about it, then such
evidence could be sufficient to permit a trier of
fact to find that the defendant-official had actual
knowledge of the risk.
Farmer v. Brennan, 511 U.S. 825, 842-43, 114 S.Ct. 1970,
1981-82 (1994). While the obviousness of a risk of retalia-
tion may be overcome by a showing that the risk escaped
detection, § 1983 liability may attach if the evidence
establishes that the official-capacity defendant merely
refused to investigate the underlying facts that strongly
suggested the existence of retaliatory conduct. 511 U.S. at
843 n.8, 114 S.Ct. at 1982 n.8. Accordingly, the named
official-capacity Defendants in the instant action “will be
liable in their official capacities if ‘policy or custom’
played a part in the violation of federal law.” McKRorie,
795 F.2d at 783 (quoting Kentucky v. Graham, 473 U.S. 159,
105 S.Ct. 3099, 3105-06, 87 L.Ed.2d 114 (1985)).
To the extent that liability for retaliation against
prison inmates is established, the Court must determine
the extent to which injunctive relief would be appropri-
ate. In order to properly award injunctive relief in a class
action, at least one of the named plaintiffs “must allege
and show that they personally have been injured, not that
injury has been suffered by other, unidentified members
of the class to which they belong and which they purport
to represent.” Lewis v. Casey, 518 U.S. 343, 357, 116 S.Ct.
2174, 2183 (1996) (quoting Simon v. Eastern Ky. Welfare
Rights Org., 426 U.S. 26, 40 n.20, 96 S.CT. 1917, 1925 n.20,
48 L.Ed.2d 450 (1976) (quotation omitted)). Further, “[t]he
remedy must . . . be limited to the inadequacy that
App. 46
produced the injury-in-fact that the plaintiff has estab-
lished.” Id. (citation omitted).
Additionally, in fashioning any prospective relief, the
Court must follow the requirements of the Prison Litiga-
tion Reform Act (PLRA), 18 U.S.C. § 3626. Oluwa v.
Gomez, 133 F.3d 1237, 1239 (9th Cir. 1998). Pursuant to the
PLRA, a “court shall not grant or approve any prospec-
tive relief unless the court finds that such relief is nar-
rowly drawn, extends no further than necessary to
correct the violation of the Federal right, and is the least
intrusive means necessary to correct the violation of the
Federal right.” Id. (quoting 18 U.S.C. § 3626(a)(1)). In
making the findings required by the PLRA, “the court is
also required to give ‘substantial weight to any adverse
impact on public safety or the operation of a criminal
justice system caused by the relief.’” Id. (quoting 18
U.S.C. § 3626(a)(1)).
In resolving the issues raised in this instant action,
the Court must not only “take cognizance of the valid
constitutional claims of prison inmates,” but also recog-
nize that “courts are ill equipped to deal with the increas-
ingly urgent problems of prison administration and
reform,” and that “the problems of prisons in America
are complex and intractable, and, more to the point, they
are not readily susceptible of resolution by decree.” Pro-
cunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807
(1974), rev'd on other grounds, 490 U.S. 401, 411, 109 S.Ct.
1874, 1880 (1989).
The factual situation presented to the Court in resolv-
ing the issues raised in the instant action has been high-
lighted by the Supreme Court when it stated:
App. 47 ©
Running a prison is an inordinately difficult
undertaking that requires expertise, planning,
and the commitment of resources, all of which
are peculiarly within the province of the legisla-
tive and executive branches of government.
Prison administration is, moreover, a task that
has been committed to the responsibility of
those branches, and separation of powers con-
cerns counsel a policy of judicial restraint.
Where a state penal system is involved, federal
courts have . . . additional reason to accord
deference to the appropriate prison authorities.
Turner, 482 U.S. at 84-85, 107 S.Ct. at 2259. As a result, the
Court will address and attempt to resolve the instant
action in light of the tension existing between “policy of
judicial restraint regarding prisoner complaints and the
need to protect constitutional rights.” Martinez, 416 US.
at 406, 94 S.Ct. at 1808, rev’d on other grounds, 490 U.S. 401,
411, 109 S.Ct. 1874 1880 (1989).
With the foregoing legal standards in mind, the Court
will address the facts established in the retaliation aspect
of this action.
Il. =
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Having carefully considered the testimony of all the
witnesses called at trial, having thoroughly reviewed ail
of the exhibits admitted into evidence, and considered
controlling lega! authority and arguments of counsel, the
Court makes the following Findings of Fact and Conclu-
sions of Law pursuant to Federal Rule of Civil Procedure
52(a).
App. 48
At the outset it must be pointed out that to the extent
the Court has concluded that the evidence in the record
does not support certain instances of retaliation alleged
by Plaintiffs to have occurred, they will not be included
in the court’s Findings of Fact or otherwise referenced
herein. In the event an incident or series of actions are not
contained in these Findings of Fact, it is not an oversight
or unintentional omission. Rather, the failure to mention
an event or series of events in these Findings is an indica-
tion that the evidence does not support a finding of
retaliation or other violation of Plaintiffs’ protected
rights. Likewise, while there were instances where correc-
tional officers’ conduct toward inmates was inconsider-
ate, rude and lacking in social courtesy, those incidents
did not rise to the level of retaliatory conduct in the
context of this action.
1. The number of inmates housed at ISCI is approxi-
mately 785 while the number of inmates housed at IMSI
is approximately 358.
A. Retaliatory Transfers
i) Lee Hays
2. Plaintiff Lee Hays was incarcerated at ISCI in
1984. Shortly after his incarceration, he began working in
the ISCI law library. Trial Transcript (Tr.) Vol. 1, p. 208, ll.
11-12, 22-23; p. 209, Il. 21-25. In late 1985, Plaintiff Hays
was transferred to ICI-O where he began to work in the
ICI-O law library under the supervision of Lieutenant
Charles Miller. Tr. Vol. 18, p. 129, Il. 8-11. At the time
Plaintiff Hays was incarcerated at ICI-O, both male and
female inmates were housed there. Tr. Vol. 15, p. 156, ll.
App. 49
14-17. Under the direction of Lieutenant Miller, Plaintiff
Hays began to train an unexperienced female law clerk.
Tr. Vol. 18, p. 104, ll. 1-4. Such training occurred during
training meetings to which Hays was escorted by correc-
tional officers as well as during disciplinary hearings
before a Disciplinary Hearing Officer (DHO) and during
the hours they worked together in the ICI-O law library.
Tr. Vol. 18, p. 104, 1. 5 — p. 105, 1. 7.
3. Plaintiff Hays was instructed not to assist male
inmates housed at ICI-O with their lawsuits or other legal
activities. Tr. Vol. 18, p. 158, ll. 3-7; p. 160, ll. 13-20.
Gaylen Bodily, Warden at ICI-O in the fall of 1985, was
present when Plaintiff Hays was instructed not to file
lawsuits. Tr. Vol. 18, p. 149, 1. 5 - p. 151, 1. 19. On October
11, 1985, Plaintiff Hays filed a personal complaint in
which a § 1983 claim was commenced against Warden
Bodily, IDOC Director Al Murphy, the Idaho Department
of Correction and J. Mendenhall. Defs. Ex. 4757. Also,
while at ICI-O, Plaintiff Hays filed a § 1983 civil rights
complaint on behalf of another prisoner alleging that
IDOC failed to provide the prisoner adequate medical
care, and filed two habeas corpus petitions on behalf of
two male prisoners who claimed that they had been
arbitrarily placed in detention. Tr. Vol. 1, p. 217, 1. 20 - p.
21, |. 3; p. 218, Il. 4-6.
4. Within one or two weeks after filing the § 1983
claim and two habeas corpus actions, Plaintiff Hays was
transferred from ICI-O to ISCI in Boise, Idaho. Tr. Vol. 1,
p. 220, 1. 1 - p. 221, 1. 24. Warden Bodily was responsible
for transferring Plaintiff Hays from ICI-O to ISCI. Tr. Vol.
15, p. 152, ll. 3-5. According to Warden Bodily, a prison
rule existed which prohibited interaction between male
App. 50
and female inmates. Tr. Vol. 15, p. 156, Il. 11-13; p. 159, Il.
14-15. Warden Bodily testified that the reason Plaintiff
Hays was transferred was because he was attempting to
assist female inmates with their legal issues as well as by
demanding to work with and train the female law clerk.
Tr. Vol. 15, p. 155, 1. 11 - p. 156, 1. 1; p. 165, ll. 8-13; p. 171,
]. 25 - p. 172, 1. 3.
5. While there may have been a prison rule prohib-
iting male and female inmate interaction, a review of the
record indicates that Plaintiff Hays worked extensively
and openly, under the direction of his supervisor Lieuten-
ant Miller, with the ICI-O female law clerk. Further, the
record indicates that Warden Bodily was present when
Hays was directed not to file lawsuits on behalf of ICI-O
inmates and that soon after filing complaints on behalf of
such inmates, Plaintiff Hays was transferred.
Conclusion of law: The Court concludes that Plain-
tiff Hays was transferred from ICI-O to ISCI in retaliation
for assisting fellow inmates in filing lawsuits against
prison authorities and that while there may have been a
valid prison rule prohibiting female and male inmate
interaction, Plaintiff Hays’ transfer was not based upon
his attempts to work with and train the female law clerk
or otherwise assist female inmates, but due to his assis-
tance rendered to fellow male inmates in filing com-
plaints on their behalf.
As a result, the Court concludes that a substantial
motivating factor in Plaintiff Hays’ transfer was his
efforts in gaining access to the court system on behalf of
fellow inmates and that such transfer on that basis is a
4
App. 51
pretext and is not supported by a valid penological pur-
pose.
ii) Wayne Olds
6. In 1993, inmate Wayne Olds filed a civil rights
action against Correctional Officer Jay Green, Mail Room
Officer at ISCI, asserting that Officer Green was illegally
interfering with his mail. Pls. Exs. 212, 217. Further,
inmate Olds challenged Warden Joe Klauser’s and Direc-
tor Richard Vernon’s decision to close the ISCI law library
as an unconstitutional denial of inmates’ right to access
the court system. Pls. Ex. 218. In addition to filing a civil
rights action in federal court, inmate Olds sent Officer
Green numerous inmate concern forms. Tr. Vol. 13, p. 248,
ll. 1-11.
7. Officer Green became upset when he received an
inmate concern form. Tr. Vol. 13, p. 248, ll. 10-11. While
inmate Olds’ concern forms did not upset him any more
than when he received a concern from any other inmate,
he received more concern forms from inmate Olds than
from anyone else. Tr. Vol. 13, p. 248, ll. 10-18. Each con-
cern form created more work for Officer Green which
required him to either stay late or take work home. Tr.
Vol. 13, p. 248, Il. 18-20. ;
8. Correctional Officer Connie McPherson! worked
as a property room officer at ISCI from September 1989 to
1 The Court has carefully scrutinized the testimony
provided by Officer McPherson as a result of her marriage to an
inmate which occurred after the events she testified to.
However, this relationship, standing alone, has not created a
justification to find her testimony incredible in its entirety
App. 52
December 1994. Tr. Vol. 10, p. 56, Il. 18-22. Because the
property room was located next to the mail room and
Officer McPherson worked as relief mail room officer, she
interacted with Officer Green daily. Tr. Vol. 10, p. 57, ll.
607; p. 58, ll. 107; p. 59, 1. 25. Officer McPherson observed
that Officer Green would become upset when inmate
Olds filed a concern form or grievance with him. Tr. Vol.
10, p. 59, 12-14. Officer McPherson observed Officer
Green confiscating inmate Olds’ mail and discussed
inmate Olds’ complaints about the mail with Deputy
Warden George Miller, who she normally interacted with
on a daily basis because Deputy Warden Miller super-
vised both the property and mail rooms. Tr. Vol. 10, p. 60,
ll. 3-21.
9. Officer McPherson indicated that Deputy Warden
Miller had grown tired of the many concern forms and
grievances filed by inmate Olds. Tr. Vol. 10, p. 60, Il.
24-25. After inmate Olds continued to file concern forms
and grievances, Deputy Warden Miller made the com-
ment that he had to get rid of him. Tr. Vol. 10, p. 61, Il.
4-5. Correctional officers, and especially a deputy war-
den, have the power to influence the transfer process by
recommending that certain inmates be transferred. Tr.
Vol. 10, p. 19, ll. 6-17. There is no institutional rule pro-
hibiting correctional officers from approaching a trans-
port coordinator and recommending that certain inmates
without independent evidence which provides grounds to
discount her recollection of the events testified to. After
reviewing the testimony offered in the instant action, the Court
concludes that such that such independent evidence has not
been produced which would entirely discredit McPherson's
testimony.
App. 53
be transferred. Tr. Vol. 10, p. 15, 1. 17 - p. 19, 1. 17. The
more authority the correctional officer holds who
attempts to influence the transport coordinator, the more
likely it becomes that the request will be honored and the
particular inmate transferred. Tr. Vol. 5, ll. 19-23. At
times, the decision to transfer or re-assign inmates is
entirely subjective. Tr. Vol. 9, p. 160, Il. 13-14.
10. On June 23, 1994, while inmate Olds was pursu-
ing federal civil rights litigation, he was transferred from
ISCI to ICI-O. Tr. Vol. 1, p. 89, ll. 5-6; Pls. Ex. 654C, at 3.
Inmate Olds did not request a transfer and ultimately
found that his transfer to ICI-O decreased his ability to
pursue his civil rights action because all of his potential
witnesses were housed at either ISCI or IMSI and he
could not seek help from more senior and experienced
inmate law clerks housed at ISCI. Tr. Vol. 1, p. 90, 1. 22 -
p. 91, 1.2; p. 93, Il. 9-13. When inmate Olds requested
information regarding the reason for his transfer, he was
told that it was based on institutional need. Tr. Vol. 1, p.
92, ll. 11-13.
11. Officer McPherson discussed inmate Olds’
transfer to ICI-O with Officer Green, who expressed ela-
tion. Tr. Vol. 10, p. 61, 1. 24 - p. 62, 1. 3. Officer McPherson
also discussed inmate Olds’ transfer with Deputy Warden
Miller who told her that he had finally gotten rid of him.
Tr. Vol. 10, p. 62, ll. 11-13.
12. In June 1994, many inmates from ISCI were
transferred to ICI-O in order to fill bed space that had
been created at ICI-O due to the opening of the Pocatello
Women’s Correctional Facility three months earlier. Tr.
Vol. 9, p. 133, 1. 20 - p. 134, 1. 5; Vol. 15, p. 168, 1. 25 - p.
App. 54
169, 1. 7. Inmate Olds was transferred to ICI-O in a group
of approximately thirty-three people, which included two
other plaintiffs in civil rights suits filed against IDOC. Tr.
Vol. 1, p. 92, I. 23 - p. 93, 1. 8.
Conclusion of Law: The Court concludes that inmate
Olds’ transfer to ICI-O was substantially motivated by his
actions in pursuing civil rights litigation as well as acces-
sing the institutional grievance procedure without any
supporting penological purpose. While a legitimate
penological purpose existed to transfer medium custody
inmates, such as inmate Olds, to fill bed space at ICI-O
due to vacancies created by the opening of the Pocatello
Women’s Correctional Facility, the Court concludes that
Defendants simply fulfilled this institutional need by
selecting a litigious inmate. Accordingly, the Court con-
cludes that inmate Olds was subjected to retaliatory con-
duct due to exercising rights protected by the First
Amendment.
iii) Bob Jones
13. In March 1996, Plaintiff Bob Jones was trans-
ferred from IMSI to ISCI and in February 1997 became a
law clerk at the ISCI law library. In March or April of
1997, Officer Michelle Nelson became the Correctional
Law Library Supervisor (CLLS) of the ISCIlaw library. Tr.
Vol. 9, p. 32, Il. 19-24. Plaintiff Jones confronted CLLS
Nelson regarding her supervision of the library, her fre-
quent absences, new rules that she instituted, violations
of IDOC policy, and her failure to appear at scheduled
appointments with inmates. Tr. Vol. 9, p. 33, 1. 5 - p. 34, 1.
1.
aa Ab a Raa a ls a EEA
sais Ds Sith SK RRS BENET a REE FEE A a re EN tend
< =
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App. 55
14. CLLS Nelson wanted Plaintiff Jones transferred
to ICI-O because she felt she was being placed in a
difficult position because Plaintiff Jones had been asked
by a Deputy Attorney General to convince another
inmate to accept a settlement offer from IDOC. Tr. Vol. 6,
p. 182, ll. 9-16; p. 191, Il. 2-10; p. 198, Il. 13-21. CLLS
Nelson wanted Plaintiff Jones transferred to ICI-O
because she was afraid and felt threatened by him after
she fired him from his position as a law clerk while at
IMSI. Tr. Vol. 7, p. 96, 1. 19 - p. 97, 1. 12. CLLS Nelson had
never known Plaintiff Jones to be anything other than a
gentleman and indicated that he always made complaints
to her in a diplomatic manner. Tr. Vol. 7, p. 98, Il. 8-15.
Further, after Nelson fired Plaintiff Jones, although he
became angry, he did not yell or threaten her in any way.
Tr. Vol. 7, p. 98, ll. 16-25.
15. Deputy Warden Gary Barrier was Nelson's
direct supervisor and met with her on a weekly basis. Tr.
Vol. 7, p. 73, ll. 1-12. CLLS Nelson asked Deputy Warden
Barrier to transfer Plaintiff Jones to ICI-O and she made
some effort to have him moved. Tr. Vol. 6, p. 191, Il. 2-10;
p. 198, ll. 1-8. IDOC did not have a rule prohibiting a
correctional officer from influencing the transfer process
by recommending that certain inmates be moved. Tr. Vol.
10, p. 19, ll. 6-17. CLLS Nelson acknowledged she may
have told Correctional Officer Alvin Race that she was
planning on asking Deputy Warden Barrier to transfer
Jones to ICI-O. Tr. Vol. 6, p. 181, 1. 12 - p. 182, 1. 8.
16. CLLS Nelson told Officer Race that she knew
someone in the transfer department and that she could
have Plaintiff Jones transferred to ICI-O. Tr. Vol. 5, p. 43,
ll. 12-15. Officer Race informed Nelson that having Jones
App. 56
transferred was improper because he believed that Jones
had a state habeas corpus action pending, however,
Nelson was not willing to relent in her pursuit to effectu-
ate the transfer. Tr. Vol. 5, p. 44, 1. 21 - p. 45, 1. 6. Officer
Race also thought Jones should remain at ISCI because he
was the most experienced law clerk and was an asset to
the law library. Tr. Vol. 5, p. 50, Il. 11-16. Officer Race
interceded on Plaintiff Jones’ behalf by discussing the
problem with Deputy Warden Barrier and, although Offi-
cer Race did not remember what Barrier told him about
the transfer, Plaintiff Jones was not ultimately transferred
to ICI-O. Tr. Vol. 5, p. 47, ll. 13-22. After CLLS Nelson
learned that Jones would not be transferred, she became
angry and very disappointed. Tr. Vol. 5, p. 52, 1. 11 - p. 53,
1. 14.
17. CLLS Nelson was disappointed that Plaintiff
Jones was not transferred to ICI-O and she continued to
try to have him transferred. Tr. Vol. 5, p. 45, ll. 6-7; p. 51,
ll. 3-6. In June 1997, Officer Race informed Plaintiff Jones
that CLLS Nelson had attempted to transfer him to ICI-O
and that Nelson believed that it would be construed as a
coincidence. Tr. Vol. 9, p. 34, 1. 14 - p. 35, 1. 3. In July 1997,
a large number of inmates were scheduled to be trans-
ferred to a prison facility in Louisiana. Plaintiff Jones was
not scheduled to be transferred. However, on the day of
the group transfer, the dayshift corporal of Plaintiff Jones’
unit, Corporal Williams, told Jones to pack his property
because he would be transferred to Louisiana. Corporal
Williams told Jones that he knew that he was not sched-
uled to be transferred but that he had just received an
oral transfer order. Tr. Vol. 9, p. 35, 1. 18 — p. 36, 1. 3; p. 84,
ll. 20-22.
App. 57
18. On the way to the location where the inmates
being transferred to Louisiana were ordered to report,
Plaintiff Jones talked with Deputy Warden Barrier Jones,
frustrated with the transfer order, told Barrier that he
would have to explain the transfer toa judge. Tr. Vol. 9, p.
36, ll. 4-13. After all of Plaintiff Jones’ property had been
moved onto a truck for transport, Deputy Warden Barrier
returned and informed Plaintiff Jones that he would not
be transferred to Louisiana. Tr. Vol. 9, p. 37, Il. 5-12.
19. After the second attempted transfer, Plaintiff
Jones determined that his work in the law library, espe-
cially being under CLLS Nelson's supervision, was detri-
mental so on August 1, 1997 he tendered his resignation
effective August 15, 1997. Tr. Vol. 9, p. 39, Il. 2-7; p. 85, ll.
16-25.
Conclusion of law: The Court concludes that CLLS
Nelson was substantially motivated in her attempts to
improperly influence Plaintiff Jones’ transfers to ICI-O
and Louisiana by the complaints that he made regarding
her supervision of the operations of the law library. The
justifications offered by CLLS Nelson for her attempts to
transfer Plaintiff Jones are pretextual. The court is of the
opinion that complaints regarding the operation of a
prison law library are unique in the prison context for
purposes of this instant action. The complaints comprise
speech which is designed to orally grieve potential
impermissible intrusions upon the right to access the
court system held by the individual inmates. Prison
inmates thus should not be retaliated against by transfers
for engaging in speech designed to orally grieve potential
intrusions upon their right to access the court system.
App. 58
Inasmuch as Plaintiff Jones was attempting to raise con-
cerns regarding Nelson’s operation of the law library and
how it was affecting the inmates’ right to access the
courts, his speech was protected. The Court concludes
that Officer Nelson’s actions in attempting to transfer
Plaintiff Jones as a result of those complaints are not
substantially justified by any discernable penological
purpose.
B. Reduction of Number of Law Clerks
20. Deputy Warden George Miller was assigned to
supervise the ISCI law library in November 1988. Tr. Vol.
5, p. 152, ll. 11-15. He was aware that law clerks who
worked in the law library routinely filed civil rights
cases. Tr. Vol. 5, p. 182, ll. 10-15. When he assumed his
responsibilities over the law library there were seven law
clerks. Tr. Vol. 6, p. 12, Il. 13-14. Deputy Warden Miller
testified that the number of law clerks that could proba-
bly handle the workload was six. Tr. Vol. 5, p. 178, Il.
23-24. It was understood by Deputy Warden Miller that
an insufficient number of law clerks working in the law
library created a risk that inmates would not be able to
access the court system by filing lawsuits or pursuing
pending cases. Tr. Vol. 5, p. 181, ll. 19-21. Despite the
number of law clerks needed for the law library to func-
tion properly, Deputy Warden Miller decided to reduce
the number of law clerks to four due to budgetary con-
straints. Tr. Vol. 8, p. 161, ll. 12-16.
21. Law clerks routinely left their employment at
the law library for various reasons. Tr. Vol. 6, p. 13, 1. 24 -
p. 14, 1. 19. After reducing the number of law clerks, the
App. 59
number declined further to the extent that as few as two
law clerk inmates were employed in the ISCI law library.
Tr. Vol. 5, p. 179, 1. 3 - p. 180, 1. 19; see also Pls. Ex. 294.
Deputy Warden Miller knew that the number of law
clerks working in the law library fell below what was
minimally adequate. Tr. Vol. 6, p. 13, Il. 11-19. Correc-
tional Officer Tony Campa, ISCI Law Library Supervisor
who worked under Deputy Warden Miller, indicated that
although there was a high degree of turnover in the
employees working as law clerks in the law library, there
was no real problem in filling the vacancies and such
vacancies could have been filled much faster. Tr. Vol. 12,
p. 110, I. 19-22; p. 112, Il. 8-11.
22. The Court finds that the number of law clerks
decreasing to a number well below the minimum level
was substantially motivated by a desire to prevent
inmates’ access to the court system. According to Defen-
dants, the number of law clerks dropped to four due to
budget constraints. The number of law clerks was
allowed to decrease further because of an inability to
promptly fill the vacancies, and due to the transfer of
approximately 200 inmates to IMSI after its opening in
November of 1989. Tr. Vol. 8, p. 93, Il. 1-8. While the
primary reduction from six to four law clerk positions
may have been due to financial constraints, the evidence
of record does not support Defendants’ justification for
the further decreases.
Conclusion of law: The Court concludes that a sub-
stanfial motivating factor in causing the decreased
number of inmate law clerks at ISCI while Deputy War-
den Miller was in charge of the library was to retaliate
against the inmate law clerks, without a valid penological
purpose, for their efforts directed at assisting inmates
Ai, Mbit ek ees CI.
App. 60
accessing the courts. Further, the Court concludes that the
reason provided for the decrease in law clerks below the
necessary minimum number was not supported by evi- .
dence in the record.
C. Terminating Prison Employment
i) Patrick Hall
23. Plaintiff Patrick Hall began working as an
inmate law clerk at the ISCI law library in 1987. Tr. Vol. 4,
p. 147, ll. 13-16. Plaintiff Hall waited to file his first § 1983
civil rights claim against the state until the inmates on
whose behalf the claims would be raised were able to
proceed without his help because he feared that once he
initiated a law suit against the Department of Correction
he would be fired from his position as a law clerk or his
parole date would be jeopardized. Tr. Vol. 4, p. 148, Il.
10-20; p. 149, 1. 18 - p. 150, 1. 14. Plaintiff Hall eventually
filed three or four civil rights cases for other prisoners
within approximately two weeks. F. Vol. 4, p. 150, Il.
15-18. Two or three weeks after filing these civil rights
actions, Plaintiff Hall was fired from the law library. Tr.
Vol. 4, p. 151, ll. 7-11.
24. Plaintiff Hall was fired by Stan Burris, a correc-
tional officer assigned to the ISCI law library. Correc-
tional Officer Burris told Plaintiff Hall that the decision to
fire him was made by George Miller, Deputy Warden. of
Operations. Tr. Vol. 4, p. 152, ll. 6-16. The reason underly-
ing Hall’s firing was that a correctional officer had
received a note written to Plaintiff Hall from another
inmate offering to split the potential recovery in a case
with Hall if he agreed to work on the matter. Tr. Vol. 4, p.
151, ll. 13. The identity of the correctional officer who
App. 61
intercepted the note, the actual note soliciting legal repre-
sentation, and the identity of the inmate who authored
the note are not included among the evidence contained
in the record before the Court. In sum, Defendants did
not submit evidence to support their claim on the settle-
ment sharing allegation.
25. Plaintiff Hall was not shown the alleged note,
was not accused of soliciting the unidentified inmate’s
offer and was not issued a Disciplinary Offense Report
(DOR) or warning regarding the incident. Tr. Vol. 4, p.-
151, 1. 13 - p. 152, 1. 13. Deputy Warden Miller did not
recall firing Plaintiff Hall, but indicated that he would
have fired Hall under the circumstances testified to even
if Hall did not know it would be illegal to share in any
potential settlement. Tr. Vol. 8, p. 80, 1. 25; p. 81, ll. 1-10.
26. Deputy Miller testified that the firing was justi-
fied because the information about a note offering a share
in potential settlement would have come through security
channels and they would have felt certain that the matter
was significant. Tr. Vol. 8, p. 82, ll. 12-17. The record does
not indicate whether Deputy Warden Milier ordered an
investigation to be conducted.
Conclusion of law: The Court concludes that Plain-
tiff Hall’s firing in such close proximity to the filing of at
least three civil rights actions, together with the circum-
stances surrounding the proffered reason for the firing,
create an inference that the firing was substantially moti-
vated by Plaintiff Hall’s attempts to access the court
system on’ behalf of fellow inmates and is thus unsup-
ported by legitimate penological goals. Further, the Court
finds that credible evidence has not been produced which
App. 62
supports the justification for the firing on the basis of an
alleged settlement sharing arrangement and therefore
concludes that Plaintiff Hall was wrongfully terminated
as a law clerk in retaliation for the exercise of federally
guaranteed rights under the First Amendment.
ii) Thomas Sanger and Carl Shively
27. In the summer of 1993, inmate Thomas Sanger
began working as a janitor in the recreation department
at ISCI. Inmate Carl Shively began working as a janitor in
the ISCI recreation department in August of 1994.
Inmates Sanger and Shively were supervised by Officer
Frank Meo, who had been the recreation department
coordinator since February of 1994. Tr. Vol. 12, p. 167, i. Zo
— p. 168, 1. 18. In February of 1995, inmates Sanger and
Shively were on a work break when Officer Meo walked
by. After inquiring into certain rumors that were circulat-
ing about the inmate welfare and recreation fund, Officer
Meo indicated that he had concerns about the possibility
of misappropriation and embezzlement of funds. Tr. Vol.
7, p. 151, Il. 7-19; p. 175, 1. 25 - p. 176, l. 6. Inmates Sanger
and Shively relayed their conversation with Officer Meo
to inmate law clerks and each eventually signed affi-
davits documenting the contents of the conversation to be
used in ongoing litigation. Tr. Vol: 7, p. 151, 1. 22 - p. 152,
1. 22; p. 176, 1. 16 - p. 177, 1. 2.
28. On February 27, 1996, the day after a hearing in
the ongoing litigation involving allegations of embezzle-
ment of the inmate welfare fund, Officer Meo informed
inmates Sanger and Shively that they were suspended
from their jobs at the recreation department and later told
App. 63
them that they were fired for the statements they made in
their respective affidavits. Tr. Vol. 7, p. 152, 1. 19 - p. 155,
|. 18; p. 178, 1. 13 - p. 179, I. 10.
Conclusion of law: The Court concludes that inmates
Sanger and Shively were fired from their positions as
recreation department janitors in retaliation for submit-
ting affidavits. The Court concludes that, although
inmates Sanger and Shively did not have a protectable
interest in maintaining their prison employment, their
employment was terminated in such a manner as to
infringe upon their right to participate in litigation
designed to challenge alleged inappropriate IDOC con-
duct. Because the Court concludes that they were termi-
nated as a result of their participation in ongoing
litigation, and that there is no valid penological purpose
justifying that employment determination, inmates San-
ger and Shively were impermissibly retaliated against.
D. Interference/Disassembling of Legal Files
i) Lee Hays
29. Plaintiff Lee Hays had a greater quantity of legal
material stored in his cell than IDOC policy allowed and
he had discussions with correctional officers assigned to
his living unit regarding his ability to keep the excessive
amount of records. Tr. Vol. 2, p. 51, 1. 5-16. Plaintiff Hays
sought court intervention to end the disagreements. Tr.
Vol. 2, p. 51, 1. 17. A stipulation was reached pursuan
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