# Petition for Writ of Certiorari — Beauclair v. Puente Gomez > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0648%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 534 U.S. 1066 ## Text 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 + 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 | 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. 7 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. + 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. : : ; : é 7 f ; 4 : ‘ 4 | 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 A Hi AB ni Mihneecce toad 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 - : { A rs 7 - -~ a S .- . - * - . = = - — --* 7 - , - d — - _ e 7 a 7 yr - < a = - - - 7 — a = - - - 7 - + Ps 7 4 =) - od = 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0648%3A1. Public record. Not legal advice.