Opposition Brief — Beauclair v. Puente Gomez

No. 01-606

— Crrr

InThe “

Supreme Court of the United States

o-—---- -----

RICHARD A. VERNON, DIRECTOR,

IDAHO DEPARTMENT OF CORRECTION;

DAVID 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;

MARQO BARTLETT; GREGORY JOSEPH NELSON,

Respondents

- seneeenee ¢ —_ "

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

—— o-—- _

OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

. --—— @ — —_

MarGaArer WINTER

Counsel of Record

Eric BALABAN

ErizanrrHn ALeXANDER

THe Nationat Prison Proper or ri

ACLU Founpation, INc.

733 15th Street, N.W., Suite 620

Washington, D.C. 20005

(202) 393-4930

OOKTE LAW BRIEF PRINTING ©

OR CALI MERCT 4

Axwric An Civi Linertivs UNION ‘

32 Grand Street

Hartford, CT 06106

(S60) 293-1559

Howarp Breroport

2402 W. Jefterson Street

Boise, ID 83702

(208) 331-3378

Steven R. SHAPIRO

AwpricAN Civi Lisertivs UNION

FOUNDATION

125 Broad Street

New York, NY 10004

(212) 549-2500

}

Counsel for Respondents

TABLE OF CONTENTS

STATEMENT OF THE CASE........---eeeeeeeeeees

REASONS WHY THE PETITION SHOULD BE

DEED occ ccccccvccccescevececscvecavoesoeosecs

I.

Il.

Ill.

CONTRARY TO PETITIONERS’ CLAIM, THE

APPELLATE COURT DID NOT HOLD THAT

A PRISONERS’ CLAIM MAY BE BASED ON

A “WHOLLY SUBJECTIVE CHILL,” AND

THIS CASE DOES NOT PRESENT A CIRCUIT

DEE idee cbesebéedcsccterreredveneessceeses

A. Petitioners’ Argument Depends Upon

Misstatement of the Record...........--

B. The Court of Appeals’ Decision Is Not

Inconsistent With Any Decision of This

C. The Court of Appeals’ Decision Does Not

Conflict With the Law in Other Circuits. ..

PETITIONERS’ ARGUMENT THAT JONES’

COMPLAINTS WERE NOT ENTITLED TO

FIRST AMENDMENT PROTECTION WAS

NOT RAISED BELOW AND IN ANY EVENT

IS WITHOUT MERIT ...........-- eee eee eee

PETITIONERS’ CONTENTION THAT THE

DISTRICT COURT ERRED IN NOT APPLY-

ING TURNER V. SAFLEY WAS NOT RAISED

BELOW AND IN ANY EVENT IS WITHOUT

DEE Gu vecbeeseeeetveccbereseeesrccesceses

COICLAIBION occ cs ccccsccvccscccccccecscmrsecvses

10

11

13

ii

TABLE OF AUTHORITIES

Page

CASES

Bristow v. Daily Press, Inc., 770 F.2d 1251 (4th Cir.

BOG a vn cvaccccccwccscteccosevecdevscevsieunsenssus 9

Crawford-El v. Britton, 523 U.S. 574 (1998) ........ 11, 13

Goss v. Exxon Office Sys. Co., 747 F.2d 885 (3d Cir.

WO, iv cvcanvcsnececbdkcnccccossencvssncnpacetseess 9

Grube v. Lau Indust., Inc., 257 F.3d 723 (7th Cir.

Be vccdincavdvdbeeounstisscwreeverasnuneeeedieeees 9

Lewis v. Casey, 518 U.S. 343 (1996) ..........-. 3, 11, 13

\

Sandin v. Conner, 515 U.S. 472 (1995).......... 3, 10, 11

Shaw v. Murphy, 532 U.S. 223 (2001)...........---5-- 14

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984)........... 9

Turner v. Safley, 482 U.S. 78 (1987) ............ 3, 13, 14

United States v. United Food, Inc., __. U.S. __, 121

Di, Ce, Fie Ge csi asccceccccccavsisvdeesesses: 13

Wardwell v. Sch. Bd. of Palm Beach County, Fla., 786

F.2d 1554 (Lith Cis. 1906)... ..ccccscccccvcesccvvess 9

White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000) ..... 12

Young v. Southwestern Sav. & Loan Ass'n, 509 F.2d

vo Fe B.. MePrrrerrrrerriirre Cr 10

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment !....... passim

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents respectfully request that this Court

deny the petition for writ of certiorari seeking review of

the Ninth Circuit’s decision in this case.

+

STATEMENT OF THE CASE

Prisoners in the custody of the Idaho Department of

Correction (“the Department”) brought a class action

lawsuit for injunctive and declaratory relief, alleging that

prison officials retaliated against inmates who challenged

the conditions of their confinement through the prison

grievance system or the courts. After a nineteen-day

bench trial, followed by a lengthy series of evidentiary

rulings, hearings and motions, the District Court issued

extensive findings of fact and conclusions of law. The

District Court’s 36-page order, “a model of clarity and

detail,” App. 13, concluded that the Department’s

employees repeatedly retaliated against inmates who

exercised their right to petition for redress of grievances.

It further concluded that policy-making prison officials

knew that the inmates were complaining of retaliation,

yet never investigated or disciplined any staff member

for the retaliatory actions; instead, they condoned the

retaliatory actions as a matter of custom and policy. App.

14-15. Based on these findings and conclusions, the Dis-

trict Court entered a declaratory judgment, denied class-

wide injunctive relief, and granted narrowly-drawn indi-

vidual injunctive relief to six inmates. App. 16. The Dis-

trict Court also entered a sanctions order against the

Departments’ lawyers for secretly acquiring, photocopy-

ing and reading the inmates’ confidential attorney-client

mail in this litigation over a period of several months,

with the assistance of prison law library and correctional

staff, in violation of the attorney-client privilege and gov-

erning ethical rules. App. 22-23. The Court of Appeals

affirmed, finding that the record amply supported the

District Court’s findings and orders. App. 3.

Petitioners now challenge the Court of Appeals’ deci-

sion with respect to Plaintiff Bob Jones, one of the six

inmates granted injunctive relief. They assert that Jones

lacks standing because He suffered only “a subjective,

hypothetical chill supported by no evidence that he suf-

fered any adversity or that he curtailed his First Amend-

ment activity.” Pet. at 11-12. This argument hinges on a

misstatement of the record. The courts below found that

Jones did suffer injury and did curtail his First Amend-

ment activity as a result of Petitioners’ retaliatory actions.

Petitioners are, in effect, asking this Court to reject the

District Court’s factual findings that (1) Jones’ complaints

were a legitimate effort to orally grieve his concerns that

Department employee Michelle Nelson was impeding

inmate access to the courts; (2) Nelson repeatedly sought

to have Jones transferred to other prisons; (3) Nelson’s

efforts were motivated by a desire to punish Jones for his

complaints about her professional misconduct; (4)

Nelson’s alleged legitimate reasons for transferring Jones

were pretextual; (5) Nelson’s efforts to punish Jones for

his complaints were without any discernable penological

purpose; (6) Nelson’s efforts to transfer Jones were nar-

rowly averted; (7) Nelson’s efforts to punish Jones chilled

his exercise of his right to complain of Nelson’s conduct;

(8) Nelson’s retaliatory actions finally caused Jones to

resign his prison job; and (9) there was a real threat of

future retaliatory transfers. There was ample record sup-

port for the lower courts’ resolution of these issues, as

shown below, and this Court should not revisit them.

Petitioners’ arguments that Mr. Jones had no standing to

bring a retaliation claim because he did not meet the

“atypical and significant hardship” requirement of Sandin

v. Conner, 515 U.S. 472 (1995), or the “actual injury”

requirement of Lewis v. Casey, 518 U.S. 343 (1996), are

simply without merit. Point I, infra.

Petitioners also contend that in affirming the District

Court’s findings and conclusions with respect to Mr.

Jones, the Court of Appeals erred because (1) Jones’ com-

plaints were not protected speech and therefore punish-

ment for that speech did not constitute retaliation; and (2)

even if Jones’ speech was protected, the lower court

failed to apply Turner v. Safley, 482 U.S. 78 (1987), to

determine whether prison officials had legitimate

penological reasons for limiting that speech. Petitioners

raised neither of these arguments in the Court below, and

this Court accordingly should not entertain them. Ever if

they could be raised for the first time in a petition for

certiorari, there is no merit to either argument. See Points

II and III, infra.

The record is summarized below.

Mr. Jones became a law clerk at Idaho Maximum

Security Institution (IMSI) in 1991. He then became the

lead law clerk. [8 Jones 202:25-203:7]?

The Warden had a high regard for him. [13 Barker

187:21-23, 189:6-13] In 1995, the Associate Warden asked

Mr. Jones, to develop training materials for other law

clerks. [8 Jones 204:1-15, 205:4-7]

In late fall of 1995, the Department hired Michelle

Nelson to fill a newly created position, that of Correc-

tional Law Library Specialist at IMSI. Mr. Jones soon

began raising concerns with Ms. Nelson about her super-

vision of the law library. He repeatedly complained to her

of her failure to follow Department policy, her frequent

absences, and her failure to appear at scheduled appoint-

ments with inmates. [8 Jones 207:1-208:10] Ms. Nelson

acknowledged that Mr. Jones always made these com-

plaints in a diplomatic manner, and that she never knew

him to be anything but a gentleman. App. 55. However,

Nelson admitted, she wanted to fire Jones “right off the

bat.” [7 Nelson 99:17-20] In early 1996, Ms. Nelson did

fire Mr. Jones. [8 Jones 234:13-18]

Ms. Nelson claimed that she fired Mr. Jones because a

confidential informant had told her that Jones was steal-

ing books from the law library. [7 Nelson 25:5-12] Nelson

later admitted, however, that she was aware Jones had

only moved the books to his new work station in the

room adjoining the law library. [7 Nelson 26:17-27:13]

1 Bracketed citations refer to the trial transcripts: day,

witness, page: line.

il

In March 1996, days after Ms. Nelson fired Mr. Jones,

Mr. Jones was suddenly transferred from IMSI to another

facility, Idaho State Correctional Institution (ISCI). [9

Jones 30:1-18] Ms. Nelson acknowledged that she some-

times worked things out with the move coordinator

regarding transfers of inmates, and that in this case she

“made sure” that the move coordinator knew that Jones

no longer worked in the law library and was therefore

eligible to be transferred. [7 Nelson 81:22-82:4; 93:3-8;

94:15-20; 95:24-96:2]

According to Department security and library staff,

the normal practice is for inmates who are transferred to

take their legal materials with them, or else to receive

them shortly after the move. [5 Race 40:14-25; 3 Shedd

172:24-173:12] Ms. Nelson, however, had Mr. Jones’ legal

files locked away, and ordered that he not be allowed

access to them. [8 White 5:13-22; 9 Jones 27:4-19,

31:19-32:1] Ms. Nelson retained Mr. Jones’ legal materials

for several months. [9 Jones 40:18-24] In barring his

access to his criminal files and transcripts, she impaired

his ability to assist in his own defense in his pending

appeal. [9 Jones 106:4-8)

In February 1997, a year after his transfer, Mr. Jones

became a law clerk at ISCI. [9 Jones 32:2-7] In March or

April 1997, Michelle Nelson became the law library

supervisor at ISCI. [9 Jones 32:2-7, 19-24] The same things

that had happened in 1995-96 at IMSI began to happen at

ISCI. Ms. Nelson was absent from work, did not show up

for scheduled appointments with inmates, and violated

Department policies. {9 Jones 33:8-21] Mr. Jones raised his

concerns about tivese matters with Ms. Nelson [9 Jones

33:1-21], and this angered her. [9 Jones 84:15-17] Ms.

a i

6

Nelson met with the Deputy Warden Gary Barrier and

asked him to transfer Mr. Jones to another Department

facility in Orofino, Idaho. [6 Nelson 19:2-10, 179:23-181:7,

198:1-8]

Ms. Nelson told Officer Race, a correctional officer

assigned to the ISCI law library, that she knew someone

in the transfer department and that she could have Jones

transferred. App. 55. She told Officer Race that this

would be marked down as “coincidence.” [9 Jones

34:14-35:3] Officer Race responded that having Jones

transferred would be improper because Jones had a state

habeas corpus action pending. App. 56. Furthermore,

Officer Race thought it would be imprudent to transfer

Jones because he was the most experienced law clerk and

was an asset to the law library. App. 56. Nelson, however,

was unwilling to relent in her pursuit of effectuating the

transfer. App. 56. Officer Race interceded on Jones’ behalf

with the Deputy Warden to prevent the transfer. and

ultimately the transfer to Orofino did not take place. Id.

At trial, Ms. Nelson initially denied that she had

wanted Mr. Jones transferred to Orofino. After reviewing

her deposition testimony, however, she admitted that she

did want him transferred. At first, she claimed that she

wanted him transferred because the Deputy Attorney

General had asked Jones to persuade another inmate to

accept a settlement offer from the Department, and

Nelson felt that she was unwillingly being put “in the

middle” of these negotiations. [6 Nelson 182:9-16;

191:2-10; 198:13-21] It transpired, however, that her only

involvement had been in placing a telephone call to Jones

from the Deputy Attorney General. Ms. Nelson later

claimed that she wanted the transfer because she felt

“threatened” by Mr. Jones after she fired him at IMSI. [7

Nelson 96:19-97:10] This justification was also unconvinc-

ing since she conceded that she had never known him to

behave other than as a gentleman and that he had never

threatened her in any way. App. 55.

After Ms. Nelson learned that Jones would not be

transferred to Orofino, she became angry and disap-

pointed. App. 56. She became visibly agitated and upset,

slamming drawers, cursing, and using a lot of four-letter

words. [5 Race 52:21-53:14] Shortly thereafter, she

renewed her efforts to have Mr. Jones transferred. App.

56. [5 Race 45:6-7, 51:23-52:4.]

In July 1997, Petitioners selected a number of inmates

in their custody for transfer to a prison in Louisiana.

They notified the affected inmates by letter and told them

to get ready for the move. Mr. Jones was not on the list

and did not receive the notification letter. Nevertheless,

the morning of the move, the day-shift corporal told

Jones that he had just gotten a call from “up front” and

that Jones should pack up his things immediately because

he was going to Louisiana within the hour. [9 Jones

35:4-36:3; 84:20-22] Mr. Jones told the Deputy Warden that

he would challenge the transfer in court. [9 Jones 36:6-13]

About an hour later, after Mr. Jones’ property had been

loaded on the bus, the Deputy Warden told Jones that he

would not be transferred to Louisiana after all. [9 Jones

37:6-12] Mr. Jones later learned that another inmate had

contacted Plaintiffs’ class counsel, who had intervened

with the Deputy Attorney General to halt Jones’ transfer.

[9 Jones 38:15-24]

After the episode in July 1997, Mr. Jones resigned

from his job in the law library. He decided that he was

doing himself harm by staying under Nelson’s supervi-

sion, and he tendered his resignation in August 1997. [9

Jones 38:25-39:7]

Mr. Jones was known throughout the institution,

from the warden to correctional staff, as a trustworthy

and truthful person. [13 Barker 188:9-189:5; 7 White

207:12-21; 5 Race 59:12-14] Officer Race testified that he

had never known Mr. Jones to lie, but that he had known

Ms. Nelson to lie, and that Ms. Nelson was capable of

retaliating against an inmate by having him transferred

or fired. [5 Race 31:21-32:27; 55:7-10; 57:1-4; 59:1-16;

73:10-15]

+

REASONS WHY THE PETITION SHOULD BE DENIED

I. CONTRARY TO PETITIONERS’ CLAIM, THE

APPELLATE COURT DID NOT HOLD THAT A

PRISONERS’ CLAIM MAY BE BASED ON A

“WHOLLY SUBJECTIVE CHILL,” AND THIS CASE

DOES NOT PRESENT A CIRCUIT SPLIT

A. Petitioners’ Argument Depends Upon Misstate-

ment of the Record

Petitioners argue that Mr. Jones does not have stand-

ing because he neither sustained nor was in immediate

danger of sustaining an injury as a result of official con-

duet. Pet. at 8-10 (citing O’Shea v. Littleton, 414 U.S. 488,

494 (1974)). Petitioners claim that the Court of Appeals

affirmed injunctive relief “based on a subjective, hypo-

thetical chill supported by no evidence that [Jones] suf-

fered any adversity or that he curtailed his First

Amendment activity” and that “[h]e resigned his job only

because he didn’t like being supervised by Nelson and he

planned to sue her.” Pet. at 11-12. This characterization of

the record is inaccurate. As summarized above, the July

1997 incident -— in which Nelson’s effort to have Jones

transferred to Louisiana was averted at the eleventh hour

through outside intervention — was the culmination of a

two-year-long campaign by Nelson, in which she fired

him from his job, attempted at least three times to trans-

fer him, falsely accused him of theft and fraud, and

interfered over a period of months with his ability to

prosecute an appeal of his criminal case. Mr. Jones testi-

fied, and the District Court found, that Mr. Jones resigned

his job after the episode in July 1997 because he believed

that he was doing himself harm by staying under

Nelson’s supervision. Cf. Sure-Tan,Inc. v. NLRB, 467 US.

883 (1984) (noting that the National Labor Relations

Board “has long held that an employer violates [the

National Labor Relations Act] . . . when it purposefully

creates working conditions so intolerable that the

employee has no option but to resign - a so-called ‘con-

structive discharge’ ”).?

2 Every circuit recognizes constructive discharge as a form

of adverse employment action. See, e.g., Grube v. Lau Indust., Inc.,

257 F.3d 723, 728 (7th Cir. 2001); Wardwell v. Sch. Bd. of Palm

Beach County, Fla., 786 F.2d 1554, 1557 (11th Cir. 1986)

(recognizing pre-5th Circuit split authority); Bristow v. Daily

Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985) (listing cases); Goss

v. Exxon Office Sys. Co., 747 F.2d 885, 887 (3d Cir. 1984) (listing

10

Although Petitioners continue to insist that Jones

“resigned his job only because he didn’t like being super-

vised by Nelson and he planned to sue her,” Pet. at 12,

the conclusion of the courts below, that Mr. Jones |

resigned his job under pressure of Ms. Nelson’s relentless

efforts to retaliate against him for expressing his concerns

about her conduct, App. 15, 55-56, is amply supported by

the record.

B. The Court of Appeals’ Decision Is Not Inconsis-

tent With Any Decision of This Court

Petitioners argue that the District Court’s decision is

inconsistent with Sandin v. Conner, 515 U.S. 472 (1995),

because the injury Mr. Jones suffered was not “atypical

and significant in the context of ordinary prison life.” Pet.

at 10. Jones’ claim, however, did not involve a due pro-

cess challenge to a prison disciplinary proceeding and

therefore Sandin is inapplicable. Sandin, moreover, explic-

itly notes that prisoners “retain other protection from

arbitrary state action even within the expected conditions

of confinement,” 515 U.S. at 487 n.11, and may invoke the

First and Fourteenth Amendments where appropriate

constructive discharge cases in the 1st, 2nd, 5th, 6th, 8th, 9th,

10th, and D.C. circuits); Young v. Southwestern Sav. & Loan Ass'n,

509 F.2d 140 (Sth Cir. 1975) (noting, “The general rule is that if

the employer deliberately makes an employee's working

conditions so intolerable that the employee is forced into an

involuntary resignation, then the employer has encompassed a

constructive discharge and is as liable for any illegal conduct

involved therein as if it had formally discharged the aggrieved

employee.”).

|

4

11

without showing that they suffered an “atypical and sig-

nificant injury.” Id.

Likewise, Petitioners erroneously contend that the

District Court’s decision is inconsistent with Lewis v.

Casey, 518 U.S. 343 (1996), because Jones did not show

“that he personally suffered an actual injury in the form

of loss or interference with a non-frivolous claim involv-

ing his conviction, sentence or conditions of confine-

ment.” Pet. at 10-11.9

The requirement that injury suffered be “in the form

of loss or interference with a non-frivolous claim involv-

ing his conviction, sentence or conditions of confine-

ment” applies to claims that prison officials have failed to

fulfill their affirmative obligation of providing meaning-

ful access to the courts, not to claims that prison officials

violated their negative obligation to refrain from retaliat-

ing against inmates for exercising their right of access. See

Crawford-El v. Britton, 523 U.S. 574 (1998) (recognizing

that a prisoner alleging that prison -officials deliberately

misdirected boxes containing his personal property, in

retaliation for his exercise of his First Amendment rights,

stated a claim, although the alleged injury did not take

the form of loss or interference with a legal claim).

C. The Court of Appeals’ Decision Does Not Con-

flict With the Law in Other Circuits

Petitioners contend that the Ninth Circuit erred in

failing to apply “an objective test” to determine whether

3 Petitioners did not raise this argument in the Court of

Appeals.

12

a prisoner alleging retaliation has suffered constitutional

injury, namely, whether a person of “ordinary firmness”

would be deterred by the retaliation from exercising his

or her constitutional rights. Pet. at 12-14. According to

Petitioners, the Ninth Circuit’s decision “illuminates” a

conflict between those Circuits which do and those which

do not apply the objective test. This case does not present

the alleged conflict. The Ninth Circuit currently applies

the “ordinary firmness” standard in determining whether

a chilling effect rises to the level of a constitutional injury.

White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000) (“This

court has held that government officials violate this pro-

vision when their acts ‘would chill or silence a person of

ordinary firmness from future First Amendment activ-

ities.’ ”) (quoting Mendocino Envt'l Ctr. v. Mendocino

County, 192 F.3d 1283, 1300 (9th Cir. 1999) (citation omit-

ted)) (emphasis added). Nothing -in the decision below

suggests that the Court of Appeals did not follow circuit

precedent in determining that a person of ordinary firm-

ness would be chilled by Nelson’s retaliatory behavior.

While the Court of Appeals did not recite verbatim the

words “person of ordinary firmness,” it stressed that the

chilling effect of Nelson’s conduct manifested itself in

_ Jones’ decision to resign his library job, and made clear

that Jones’ decision to resign was objectively rational

under the circumstances. See App. 15 (“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. . . . It is the chilling

effect that forced Jones to quit his job” (emphasis added)).

13

Il. PETITIONERS’ ARGUMENT THAT JONES’ COM-

PLAINTS WERE NOT ENTITLED TO FIRST

AMENDMENT PROTECTION WAS NOT RAISED

BELOW AND IN ANY EVENT IS WITHOUT

MERIT

Petitioners argue here for the first time that Mr. Jones

suffered no retaliation because his complaints about Ms.

Nelson's conduct were not entitled to First Amendment

protection. Pet. at 20. Since Petitioners never raised this

argument in the courts below and the Court of Appeals

did not pass upon it, this Court should decline to hear it.

See United States v. United Food, Inc., _. U.S. __, __, 121

S. Ct. 2334, 2341 (2001).

Even if that argument had been raised below, and

were properly before this Court, it is without merit. Pris-

oners have First Amendment rights, see Turner v. Safley,

482 U.S. 78, 84, 91 (1987), and those rights unquestionably

include the right to criticize prison staff for alleged mis-

conduct. See Crawford-El v. Britton, 523 U.S. 574 (1998).

Retaliation against prisoners for exercising their First

Amendment rights, like retaliation against persons in the

free world, offends the Constitution because “it threatens

to inhibit exercise of the protected right.” Id. at 588 n.10.

Petitioners also posit that because, under Lewis v.

Casey, “there is no right to a law library to begin with,”

inmates have no First Amendment right to criticize

prison officials for their operation of an existing law

library, and Ms. Nelson was free to retaliate against Mr.

Jones for bringing grievances relating to the operation of

the library. Pet. at 24. It is irrelevant that prisoners have

no “right to a law library.” They have a First Amendment

14

right to complain to prison authorities, in a manner that

violates no prison rules, when they believe that their

access to the courts is being improperly curtailed.

Petitioners’ reliance on Shaw v. Murphy, 532 U.S. 223,

121 S. Ct. 1475 (2001), is similarly mistaken. Contrary to

Petitioners’ argument, Shaw does not stand for the propo-

sition that prisoners’ complaints are outside the ambit of

First Amendment protection simply because they happen

to concern the operation of a prison law library. Pet. at

21-24. Mr. Jones, unlike the plaintiff in Shaw, claimed no

“special right” to provide legal assistance to others, Shaw,

121 S. Ct. at 1478. Also in contrast to the claim presented

in Shaw, Mr. Jones’ criticisms of Ms. Nelson’s unprofes-

sional conduct violated no prison rule. Petitioners have

never even suggested to the contrary; nor have they ever

before claimed that Mr. Jones’ criticisms of Ms. Nelson

were for any reason outside the bounds of protected

speech. |

III. PETITIONERS’ CONTENTION THAT THE DIS-

TRICT COURT ERRED IN NOT APPLYING

TURNER V. SAFLEY WAS NOT RAISED BELOW

AND IN ANY EVENT IS WITHOUT MERIT

Petitioners also argue here, for the first time, that the

District Court erred in failing to evaluate Ms. Nelson’s

treatment of Mr. Jones under the standard set forth in

Turner v. Safley. Pet. at 25. But even if the argument were

properly before this Court, it would have no merit. The

District Court did in fact apply Turner in finding that

Petitioners retaliated against Mr. Jones, App. 40-41, and

specifically found that the justifications Nelson offered

15

for her retaliatory actions were pretextual, and that those

actions were “not substantially justified by any discern-

ible penological purpose.” App. 58. The Court of Appeals

affirmed. App. 15.

Petitioners also attempt to conjure a Circuit split on

this issue by showing that the Courts of Appeal “are not

unanimous in their views of which types of activity are

constitutionally protected,” Pet. at 22-23, since some

“have held that a provision of legal assistance to other

prisoners is not a protected right for retaliation pur-

poses,” while others have held that there is “no constitu-

tional right to participate in a prison grievance

procedure,” and others, “that there is no right to an

unlimited use of a prison law library.” Pet. at 23. No

Circuit, however, holds that prisoners are without a con-

stitutional right to do what Mr. Jones did in this case:

orally raise concerns and complaints with his correctional

supervisor about her arbitrary conduct, without violating

any prison rule or regulation.

¢

16

CONCLUSION

For the reasons discussed herein, the Petition should

be denied.

Respectfully submitted,

MArGARET WINTER

Counsel of Record

Eric BALABAN

ELIZABETH ALEXANDER

THE NATIONAL PRISON PROJECT OF THE

ACLU Founpation, INc.

733 15th Street, N.W., Suite 620

Washington, D.C. 20005

(202) 393-4930

STEPHEN L. PEVAR

AMERICAN Crvit Liserties UNION

32 Grand Street

Hartford, CT 06106

(860) 293-1559

Howarp BELODOFF

2402 W. Jefferson Street

Boise, ID 83702

(208) 331-3378

STEVEN R. SHAPIRO

AMERICAN Crvit Liserties UNION

FOUNDATION

125 Broad Street

New York, NY 10004

(212) 549-2500

Counsel for Respondents