Amicus Curiae Brief — Beauclair v. Puente Gomez

FILED

J NOV 6 2001

No. 01-606

IN THE SUPREME COURT OF THE UNITED STA FERRE

Supreme Court, U.S.

THOMAS BEAUCLAIR, DIRECTOR, IDAHO

DEPARTMENT OF CORRECTION, et al.,

Petitioners,

v.

NOEL PUENTE GOMEZ, et ai.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF OHIO AND 17 OTHER STATES AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

BETTY D. MONTGOMERY

Attorney General of Ohio

- DAVID M. GORMLEY

State Solicitor

ROBERT C. MAIER*

TODD R. MARTI

Assistant Solicitors

*Counsel of Record

30 East Broad Street, 17'" Floor

Columbus, Ohio 43215

(614) 466-8980

BILL PRYOR

Attorney General

State of Alabama

BRUCE M. BOTELHO

Attorney General

State of Alaska

BILL LOCKYER

Attorney General

State of California

KEN SALAZAR

Attorney General

State of Colorado

M. JANE BRADY

Attorney General

State of Delaware

ROBERT A.

BUTTERWORTH

Attorney General

State of Florida

JAMES E. RYAN

Attorney General

State of Illinois

STEPHEN CARTER

Attorney General

State of Indiana

CARLA J. STOVALL

Attorney General

State of Kansas

RICHARD P. LEYOUB

Attorney General

State of Louisiana

JENNIFER M.

GRANHOLM

Attorney General

State of Michigan

PHILIP T.

MCLAUGHLIN

Attorney General

State of New Hampshire

FRANKIE SUE DEL

PAPA

Attorney General

State of Nevada

W.A. DREW

EDMONDSON

Attorney General

State of Oklahoma —

HARDY MYERS

Attorney General

State of Oregon

CHARLES M. CONDON

Attorney General

State of South Carolina

MARK L. SHURTLEFF

Attorney General

State of Utah

a

QUESTIONS PRESENTED

The amici States support Idaho’s question that concerns

standing, rewriting the question as follows:

(1) Whether a state prison inmate can establish

standing to assert a claim of First Amendment

retaliation based solely on a subjective “chill.”

In addition, the amici States ask the Court to grant certiorari on

the following question:

(2) | Whether a state prison inmate who claims that

state officials have retaliated against him for

statements that he has made must plead and

prove an “adverse action” involving what the

Court described in Sandin v. Conner, 515 US.

472, 484 (1995), as a “restraint which imposes

atypical and significant hardship in relation to

the ordinary incidents of prison life.”

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............cccccccccccecceeeee. unnumbered

eRe Se BETTIE weeceseveeesesoreviveseseseceseeverseteereeseesees ii

STATEMENT OF AMICUS SP UNIIIITE alttihinstieliceieeiiiennieten |

REASONS FOR GRANTING THE PETITION.......cccc0c00000-. 5

- I. The Court Should Grant Certiorari And Consider

What Injury A Prison Inmate Must Show In Order

To Claim Standing In A Case Alleging First

ATMONGMOM ROtAliMtion, ......seccseroserrererevereveeceveceresceveseses 5

II. Certiorari Should Be Granted To Resolve The

Substantive-Law Conflict Among Circuits Over

What A Prisoner Must Show To Establish

“Adverse Action” In The Context Of A First

Amendment Retaliation Claim. .........ccccccccsesescesessececees 10

Ill. The Question Presented Is Important Because

Prisoners’ Use Of Retaliation Theory To

Circumvent The Sensible Limitations Imposed By

Meachum v. Fano And Sandin v. Conner Results

In Undue Federal Intrusion Into Core State

Functions, Undermines The Separation Of

Powers, And Complicates Penal Administration. ....... 1]

ee 12

BR, «—- SOAR OF PI WOIS, ..ceccccecesecvecesveceseecesereseeceses 13

C. Impact on Prison Management. .............cccccseeeeees 14

IV. This Court Should Adopt A Bright-Line Rule

Based On Sandin v. Conner .....cccccsccscsssocecsesessecsssecseces 16

a a a 18

TABLE OF AUTHORITIES

Page

Cases:

ACLU of Maryland, Inc. v. Wicomico County,

999 F.2d 780 (4th Cir. 1993) ......ccecesseeereerreserrenresseneseneeenes 11

Allah v. Seiverling,

929 F.3d 220 (3d Cir. 2000) ......cscrerseesrreerreesereesetseeneneeenes 11

Bell v. Wolfish,

AAL U.S. 520 (1979)....ccscccessesseesseeeeeseereeerseennsaperseeerensneenes 13

Bennett v. Spear,

520 U.S. 154 (1997)....ccccscsssesseesessesereseseeneeenepersenesnsanenaners 6

Board of Regents v. Roth,

ADB U.S. 564 (1972)...ccesscsessseseesseeereesereeenersnenerrenrsenanansnees 9

Bounds v. Smith,

A430) U.S. 817 (1977). .cccesscsssesssesecensesressreenressessresonecnsensseneee® 8

Brockett v. Spokane Arcades, Inc., Q

472 U.S. 491 (1985).......+. ssseesecnseenseqnecuncenecanennscnnennscenscenessees 7

Brown v. Carpenter,

889 F. Supp. 1028 (W.D. Tenn. 19DS) ..cccorereseccreetersoresees y ae

Crawford-El v. Britton,

523 U.S. 574 (1998).....csccesssesseeeseeseeeeeeesensenneennesenneesneens 2,14

Dawes v. Walker,

239 F.3d 489 (2nd Cir. 2001) .....cceccseesereserreetersetrneenenees 9,11

Dixon v. Brown,

38 F.3d 379 (8th Cir, 1994) vc ceceeeeeeeerteeeeeees eT 10

Estelle v. Gamble,

429 U.S. 97 (1976).....cssccssscsscsssverreecscecseersessessresssssessssoeesors 8

Goldman v. Weinberger,

475 U.S. 503 (1986).....cccccccrrrcsssssscsovocesscosssserorsssssssonessooess 16

Hall v. Sutton,

755 F.2d 786 (1 ith Cir. 1985)... ccceceeeeeeessseeneneeeeeees 13

Hewitt v. Helms,

459 U.S. 460 (1983)......cccccscrrscssssrscsesscccveccccesreesssessssossoosoees 9

Johnson vy. Rodriquez,

110 F.3d 299 (Sth Cir, 1997) .....ccccccecsrcesssresssteeseeesseeeeees 11

Jones v. North Carolina Prisoners’ Labor

Union, Inc,

433 U.S. 119 (1972). .ccccesoccevorsesccscveccoccsscssecsosoosesscooacesescooss 17

Kelly v. Robinson,

ATO U.S. 36 (1986).......cccccccssscccsscscccscrecserreesssssessnsessoossrecees 12

Laird v. Tatum,

AOB U.S. 1 (1972)......ccccccsrcssseccsceccsssssereccesrscessscsscscoseresenseees 6

Lewis v. Casey,

518 U.S. 343 (1996)......seccccccccrsccscrrcsseeecessssessssrerooeeees passim

Meachum v. Fano,

427 U.S. 215 (1976).....cssccccssrsvccscecessesesssecscssesooscerees passim

Michigan Department of State Police v. Sitz,

496 U.S. 444 (1990)... cscccccssreeeersrseeeeeetnesensereeeeeeeeeneeeees 17

Mt. Healthy City Board of Education v. Doyle,

429 U.S. 274 (1977)....ccccccccsssseesevseeseeeeeeeessseeseensreeesseeeneeees 10

Preiser v. Rodriguez, ;

ALL U.S. 475 (1973)... ...cccsssccsssssscsseeeeesseseesseesssseeeeesedes ts

Price v. Johnson,

334 U.S. 266 (1948)......cccsesccescsseceesseeeesrsnsesseesasereeeeeennees 17

Procunier v. Martinez,

416 U.S. 396 (1974)... .ceccscccssssreeesseeeeeetseeeserneaseneneenees 12, 16

Rhodes v. Chapman,

452 U.S. 337 (1981).....ccccscsessssseesssreeeesreeeseressessesseenneeenennees 9

Sandin v. Conner,

5.15 U.S. 472 (199S)......cccssessssscssseeeeeeseseeeessssseeeeseeeenees passim

Schaumberg vy. Citizens for a Better Environment,

444 U.S. 620 (1980)......:ccecccsreesssrsteeeeestteeseesttessseeeenaeeeerens 7

Shaw v. Murphy,

121. S. Ct. 1475 (2001)......cccsccesssssssreeeeesssseesssereeseneeereeesenees 6

Skinner v. Railway Labor Executives Association,

A489 U.S. 602 (1989).........cccsccsssesssrreeeeeetteesesestnessssereeeeeens 16

Steel Company vy. Citizens for a Better Environment,

523 U.S. 83 (1998)......cccccsssssscsssssressesseeeeeeeesnsessssseeseesereenees 6

Thaddeus-X v. Blatter,

175 F.3d 378 (6th Cir, 1999) .........ccccceserrseesseeseeseseees 9,11

Turner v. Safley,

482 U.S. 78 (1987)....cecesesssseretessenesenssssssssnesesesenensnsesees .

Valley Forge Christian College v. Americans

United for Separation of Church and State,

BSG US, SBE (BGR 2)rerececvesovesecevesesesvevscsorvecsenseeveqaveneessvnteneis 6

Vernonia School District 47J y, Acton,

SF UF BO Cr itinvicenetancrisneneesridinsianuiniimaiinnia 16

Waters v. Churchill,

FOG Ee ae Cree iccsicvsinncnsieicncosistscniesneiniinistiiainsibiitasteliimaiasiahiet 16

Statutes:

Prison Litigation Reform Act, P.L. No. 104-134,

110 Stat. 1321, 1366 (Apr. 26, 1996) ..........00cscssserseereeees 17

STATEMENT OF AMICUS INTEREST

Ohio and 17 other States support Idaho in urging the

Court to review and reverse the Ninth Circuit’s grant of relief

on the amorphous prisoner retaliation claim at issue in this

case — a type of claim that is becoming increasingly common.

Like Idaho, Ohio and the amici States all face the

“inordinately difficult undertaking” of running their prisons,

Turner v. Safley, 482 U.S. 78, 85 (1987), a “task that has

been committed to the responsibility of [the legislative and

executive] branches.” /d. The States’ concern arises from

the acknowledged fact that administering prisons involves a

“relationship of state prisoners [with] state officers who

supervise their confinement [that is] far more intimate than

that of a State and a private citizen,” Preiser v. Rodriguez,

‘411 U.S. 475, 492 (1973). This circumstance leads the States

to make routine decisions that are necessary to maintain

order, yet are highly likely to provoke complaints from

prison inmates.

The connection of this case to that task lies in

prisoners’ increasing use of First Amendment retaliation

theory as an “end run” around the pragmatic limitations on

due process claims already imposed by the Court. In

Meachum vy. Fano, 427 U.S. 215 (1976), and Sandin v.

Conner, 515 U.S. 472 (1995), the Court recognized that a

broad imposition of due process requirements on prison life

would inevitably require judges to second-guess a great many

operationally driven decisions. And the Court acknowledged

in those decisions that such an intrusion would disrupt both

prisons and courts, and would create a serious imbalance in

the proper separation of executive and judicial power.

Accordingly, Meachum and Sandin articulate strong

limitations on prisoner due process claims.

But the decision below revives the problem of

excessive judicial intrusion by allowing an alternate basis for

challenging the same range of official operational decisions.

To obtain judicial review of a decision that would otherwise

be left to the informed discretion of corrections officials, all a

prisoner need do, according to the court of appeals, is to

claim that the decision was made with retaliatory intent.

Since most prisoners who would lodge such complaints have

lodged other complaints in the past, they can claim retaliation

for seeking access to the courts, or, as in this case, an

outspoken prisoner can claim that prison officials have

retaliated against him for past criticisms that he has leveled

against them.

Moreover, the Ninth Circuit’s legal standard for.

retaliation claims is far more prone to abuse than the

relatively straightforward due process criteria that themselves

“led to the involvement of federal courts in the day-to-day

management of prisons, often squandering judicial resources

with little offsetting benefit to anyone.” Sandin, 515 U.S. at

482. Unlike the due process calculus, which balances -

objectively verifiable interests (including the States’ interest

in controlling inmate behavior), retaliation cases turn on

murky questions of subjective intent. That gives rise to a

“serious problem: because an official’s state of mind is easy

to allege and hard to disprove, insubstantial claims” are often

“less amenable to summary disposition.” Crawford-El v.

Britton, 523 U.S. 574, 584-585 (1998) (internal punctuation

omitted). As a result, prisoners can make federal cases out of

the most ordinary operational decisions simply by claiming

improper motivation.

Inmates have recognized, and exploited, this

circumstance by attempting to immunize themselves against

adverse administrative actions, claiming that anything

unpleasant that happens to them in even remote proximity to

protected conduct is retaliatory. “Retaliation” in such cases

becomes a means to “bootstrap a frivolous complaint,”

Brown v. Carpenter, 889 F. Supp. 1028, 1034 (W.D. Tenn.

1995), and a prisoner should not be permitted to “immunize

himself from adverse administrative action by prison officials

merely by filing a grievance or a lawsuit and then claiming

that everything that happens to him is retaliatory.” /d.

Although the vast majority of such suits are

ultimately won by corrections officials, the litigation process

itself disrupts prison operations by distracting staff from

normal duties and increasing friction within state prisons. A.

Champagne & K. Haas, The Impact of Johnson v. Avery on

Prison Administration, 43 Tenn. L.R. 275, 291, Table 6, 293-

295 (1975) (a majority of wardens surveyed indicated that

prisoner lawsuits distract staff from normal duties and

increase tension, and that those problems increase in

proportion to the amount of lawsuits); G. Cole, R. Hanson,

and J. Gilbert, Alternative Dispute Resolution Mechanisms

for Prisoner Grievances: A Reference Manual for Averting

Litigation 5-6, 8 (National Institute of Corrections 1984)

(making similar observations).

And prison walis do not limit the adverse affects of

that legal manipulation. Every retaliation claim that seeks

review of very ordinary, and presumptively valid,

administrative decisions must itself be administered by some

court somewhere. Each case must also be defended by some

government agency. That consumes an inordinate amount of

public resources.

Perhaps most galling, the decision below sets the

threshold for inmate claims so low that it will result in many

cases where there really is no controversy between the

parties. Recall that the only injury shown in this case is a

threat to transfer inmate Jones to another prison of

a

~

comparable security level. Jones suffered no injury other

than a subjective “chill” that apparently was not severe

enough to prevent him from pursuing this and at least one

other case. Neither the threatened action nor the supposed

consequences of that threat have any constitutional or

practical significance. If that is all it takes for a prisoner to

show an actionable injury, the nation’s courts will soon be

more overcrowded than its prisons. Judges will become

functionally indistinguishable from wardens, with both

having equal say on even the most mundane operational

decisions so long as a prisoner asks the judge to intervene.

This case presents a vehicle to both solve those

problems and to provide analytical symmetry in an area of

law that federal courts address on a daily basis. That can be

accomplished by two decisions from this Court. First, by

granting certiorari. Second, by holding that a disputed

government action does not inflict sufficient injury to sustain

a prisoner retaliation claim unless it imposes an “atypical and’

significant hardship on the inmate in relation to the ordinary

incidents of prison life” for purposes of Sandin, 515 U.S. at

484.

' The amici States’ submission differs in two important

respects from that of the petitioner, the Idaho corrections

director. First, the States believe that the genuine conflict

among the Circuits primarily concerns the substantive-law

standard of what constitutes “adverse action” in a prisoner

retaliation claim. Second, the States urge the Court in part

IV of this brief to adopt the Sandin standard, which is even

more restrictive than the “ordinary firmness” standard

advocated by the petitioner.

|

|

REASONS FOR GRANTING THE PETITION

The Ninth Circuit’s prisoner retaliation theory

warrants certiorari for several interrelated grounds. First, it

conflicts with other Circuits’ decisions and with decisions of

this Court about the extent of injury necessary to satisfy

Article III standing requirements. Second, it adds to the

inter-Circuit confusion as to what type of injury is sufficient

to sustain a prisoner retaliation suit. Third, it highlights an

important federal question because existing law in most

Circuits erodes the boundaries between the federal courts and

state prisons in a way that undermines federalism, the

separation of powers and state officials’ ability to effectively

carry Out their exceedingly difficult duties, Fourth, it presents

an opportunity to establish a bright-line rule that will remedy

all of those ills: that disputed government action will not

sustain a prisoner retaliation claim unless that action imposes

an “atypical and significant hardship on the inmate in relation

to the ordinary incidents of prison life.” Sandin, 515 U.S. at

484.

I. The Court Should Grant Certiorari And

Consider What Injury A Prison Inmate

Must Show In Order To Claim Standing In

A Case Alleging First Amendment

Retaliation.

The standing question that Idaho sets forth in the

petition is important because prisoner retaliation claims

threaten to vitiate the due process doctrine of Meachum vy.

Fano and Sandin v. Conner. This case furnishes an excellent

example: by citing “retaliatory” threats of transfer, an inmate

obtains a court order mandating a system of objective criteria

for transfer that the Due Process Clause itself does not

require, One of the solutions to this anomalous result lies in

clarifying the standing requirement in prisoner retaliation

claims.

Settled law provides two levels of standing: there is

the “irreducible constitutional minimum” of elements

required for “case-or-controversy” standing under article III,

see Steel Company v. Citizens for a Better Environment, 523

U.S. 83, 102-03 (1998), and in addition to the constitutional

threshold, the Court has articulated “a set of prudential

principles that bear on the question of standing.” Valley

Forge Christian College v. Americans United for Separation

of Church and State, 454 U.S. 464, 474-75 (1982); Bennett v.

Spear, 520 U.S. 154, 162-63 (1997). Both constitutional and

prudential standing requirements are “founded in concern

about the proper — and properly limited — role of the courts in

a democratic society.” Bennett, 520 U.S. at 162 (internal

Citation omitted),

The Ninth Circuit’s “chill” doctrine cannot be

reconciled with the Court's precedents. In the prison context

the Court has emphasized that the “actual injury”

requirement for standing “prevents courts of law from

undertaking tasks assigned to the political branches.” Lewis

v. Casey, 518 U.S. 343, 349 (1996). Careful definition of

both the scope of constitutional rights and the range of

cognizable injuries is particularly important in the area of

prisoner litigation because “federal courts do not sit to

supervise state prisons,” Meachum v. Fano, 427 U.S. 215,

229 (1976), and because state officers should remain

“primary arbiters of the problems that arise in prison

management.” Shaw v. Murphy, 121 S.Ct. 1475, 1480

(2001). And the cert. petition correctly notes that the Court

has specifically rejected mere “chill” as qualifying for “actual

injury” that would meet the constitutional threshold. See

Laird vy, Tatum, 408 U.S. | (1972).

Perhaps one source of the Ninth Circuit’s error lies in

the existence of a genuine “chill” doctrine that applies to

some First Amendment cases. The States acknowledge that

when a plaintiff challenges a state law as “overbroad” under

the First Amendment, that plaintiff can avoid the usual

prudential limitations on standing and seek to void the law

even if the injury in her own case does not manifest the First

Amendment evil, and even though her own conduct could

constitutionally be proscribed under a more narrowly drafted

law. See e.g., Schaumberg vy. Citizens for a_ Better

Environment, 444 U.S. 620, 634 (1980) (a “litigant whose

Own activities are unprotected may nevertheless challenge a

statute by showing that it substantially abridges the First

Amendment rights of other parties not before the court”); cf.

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503-04

(1985) (distinguishing facial challenge by plaintiff.to whom

the statute, but for overbreadth, could validly be applied,

from a challenge predicated on unconstitutional application

of a statute to the plaintiff).

But that “chill” doctrine in no way applies here. This

case involves particular prisoners (the cert. petition focuses

on plaintiff Bob Jones) complaining of specific official

conduct. The district court rejected class relief, and

specifically found that “acts of retaliation were isolated

instances over a period of many years and did not pervade

the entire class.” District Court Order, at 35; Pet. App. 76-

77. Therefore no law or even administrative practice forms

the basis for a “facial” challenge here. And in any event, a

plaintiff such as Bob Jones cannot invoke the genuine “chill”

doctrine, because he was afforded relief based upon the

specialized findings in his case — in other words, official

authority in the opinion of the lower courts was exercised

wrongfully in an “as applied” manner to Jones. See Brockett,

supra.

Far from properly triggering a First Amendment

“chill” doctrine, the case of prisoner Bob Jones presents an

occasion for applying a diametrically opposed rule. By

contrast with the loosened standard that applies in

“overbreadth” cases, Lewis v. Casey, supra, closely tied the

scope of the prisoner's constitutional right to the injury that

qualifies the prisoner to sue: “The foregoing [actual injury]

analysis would not be pertinent here if ... the right at issue —

the right to which the actual or threatened harm must pertain

— were the right to a law library or to legal assistance. But

Bounds |v. Smith, 430 U.S. 817 (1977)] established no such

right, anymore than Estelle |v. Gamble, 429 U.S. 97 (1976)]

established a right to a prison hospital.” Lewis, 518 U.S. at

350. In other words: since the prisoner’s constitutional

right was limited to a right to access the courts (and did not

include a freestanding right to a prison library), the prisoner

had to show an injury that actually involved an inability to

access the courts. It was not enough to show that there was

no prison library.

By parity of logic, the injury discussion in this case

“would not be pertinent” if, as the inmates seem to assume

and the Ninth Circuit seemed to agree, a prisoner has a right

to always be free of any change (or threat of change) in the

circumstances of confinement, to the extent that the change

stems from the prisoner’s exercise of expressive rights. Such

a broad definition of First Amendment rights in the prison

context cannot be reconciled with the basic premises of

prison life, under which the state takes custody over the

prisoner as a punishment for her offenses.

Further confirmation of the incongruity of the Ninth

Circuit's injury-free standing rule comes from _ the

jurisprudence acknowledging the contextual character of

First Amendment protections. Two Circuits, the Sixth and

the Second, explicitly subscribe to the sensible doctrine that

“[p|risoners may be required to tolerate more than public

employees, who may be required to tolerate more than

average citizens, before a [retaliatory] action taken against

them is considered adverse.” Dawes v. Walker, 239 F.3d

489, 493 (2nd Cir. 2001), citing Thaddeus-X v. Blatter, 175

F.3d 378, 398 (6th Cir. 1999). This logic accords with the

Court’s pronouncement in Eighth Amendment cases that

“{t]lo the extent that [prison] conditions are restrictive and

even harsh, they are part of the penalty that criminal

offenders pay for their offenses against society.” Rhodes v.

Chapman, 452 U.S. 337, 347 (1981).

Additionally, the two detriments identified by the

Ninth Circuit in this case — prison transfer and Jones’s

resignation from a prison-library law-clerk position — in no

way qualify as events triggering heavy constitutional scrutiny

under these circumstances. Prison transfers — even where

they impose some detriments on prisoners (a showing absent

in the present case) — implicate no liberty interest cognizable

under the Due Process Clause. Hewitt v. Helms, 459 U.S.

460, 467 n.4 (1983); Meachum, supra; Sandin, supra. And

loss of public employment (assuming the law clerk position

here qualified for that status) does not, in the absence of state

law protection through tenure or civil service classification,

trigger due process scrutiny even for a free public employee,

let alone a prisoner. Board of Regents v. Roth, 408 U.S. 564,

577-78 (1972).

The Ninth Circuit’s anomalous “chill” doctrine

permits the prisoner to limit the power of prison officials to

exercise custodial control based merely on the assertion that

specific official acts potentially affect the inmate’s exercise

of expressive freedoms. That sort of reasoning has met with

disapproval by this Court both within and outside the prison

context. See, Sandin, supra, 515 U.S. at 484 (rejecting

assertion by prisoner that “any state action taken for a

10

punitive reason encroaches upon a liberty interest under the

Due Process Clause”); Mt. Healthy City Bd. of Educ. v.

Doyle, 429 U.S. 274, 285 (1977) (public employee should

not be “in a better position as a result of the exercise of

constitutionally protected conduct than he would have

occupied had he done nothing”).

Thus, in the wake of the Lewis v. Casey analysis, the

precise contours of the residual First Amendment right

enjoyed by Bob Jones as a prisoner of the state bears on

whether Jones has shown a sufficient injury for standing

purposes. No such First Amendment injury is present here.

Il. Certiorari Should Be Granted To Resolve

The Substantive-Law Conflict Among

Circuits Over What A Prisoner Must Show

To Establish “Adverse Action” In The

Context Of A First Amendment Retaliation

Claim.

While the Circuits (broadly speaking) agree that a

plaintiff claiming First Amendment retaliation must show

“adverse action” that has a retaliatory motive, the appellate

courts are split over what a prisoner must show to establish

“adverse action.” The practical problems posed by prisoner

retaliation claims are aggravated by this lack of consensus

on the extent of injury necessary to sustain them. Four

different standards prevail and only this Court can tell the

States which of them, if any, is the law. (In part IV below,

the amici States support a heightened standard in prisoner

cases.)

The first view holds that “when retaliatory conduct is

involved, there is no independent injury requirement.” Dixon

v. Brown, 38 F.3d 379, 380 (8th Cir. 1994). The second,

very closely related approach followed by the court below, is

that nothing more than a subjective chilling of expressive

conduct is needed. Pet. App. 15.

The third is an objective standard, based on whether

the disputed action “would deter a person of ordinary

- firmness from the exercise of the right at stake.” Thaddeus-X

v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999)(quoting Bart v.

Telford, 677 F.2d 622, 625 (7th Cir. 1982)); Dawes v.

Walker, 239 F.3d 489, 493 (2d Cir. 2001); Allah v.

Seiverling, 229 F.3d 220, 225 (3d Cir. 2000); Crawford-El v.

Britton, 93 F.3d 813, 826 (D.C. Cir. 1996) rev'd on other

gr’ nds, 523 U.S. 574 (1998).

Finally, the Fourth and Fifth Circuits require a

showing of adverse impact upon the exercise of protected

conduct. ACLU of Maryland, Inc. v. Wicomico County, 999

F.2d 780, 785 (4th Cir. 1993); Johnson v. Rodriquez, 110

F.3d 299, 314 (Sth Cir. 1997).

In short, federal law is currently fragmented on this

question. The States ask this Court to articulate a single,

national standard in this case.

Ill. The Question Presented Is Important

Because Prisoners’ Use Of Retaliation

Theory To Circumvent The _ Sensible

Limitations Imposed By Meachum vy. Fano

And Sandin v. Conner Results In Undue

Federal Intrusion Into Core State

Functions, Undermines The Separation Of

Powers, And Complicates Penal

Administration.

The States need a definitive ruling because most of

the standards applied perpetuate the same problems that

Meachum and Sandin tried to stop—excessive federal

12

involvement in state prison operations, blurred distinctions

between judicial and executive functions, and the resulting

disruption of penal operations. The injury—free, subjective—

chill and even the more objective “person of ordinary

firmness” standard have resulted in lawsuits challenging

actions quite properly left to the informed discretion of

corrections professionals under Meachum and Sandin.

~ A, Federalism Concerns.

It cannot be gainsaid that the management of state

prisons is a core state function. “The right to formulate and

enforce penal sanctions is an important aspect of the

sovereignty retained by the States,” Kelly v. Robinson, 479

U.S. 36, 47 (1986), and the management of “penal

institutions is an essential part of that task.” Procunier v.

Martinez, 416 U.S. 396, 412 (1974). Indeed, “it is difficult to

imagine an activity in which a State has a stronger interest.”

Preiser v. Rodriguez, 411 U.S. 475, 491-492 (1973). That

respect for State autonomy was at the heart of Meachum,

which recognized that “[t]he federal courts do not sit to

supervise state prisons, the administration of which is of

acute interest to the States.”.427 U.S. at 229 (emphasis

added).

Most of the adversity standards applied to prisoner

retaliation claims undermine the sovereignty Meachum and

Sandin sought to preserve by providing non-existent, or

unpredictable, criteria for subjecting presumptively lawful

State decisions to federal review. The injury-free and

subjective-chill standards prevailing in the Eighth and Ninth

Circuits provide no check on federal review of state penal

matters. The “person of ordinary firmness” standard

controlling in the Second, Third, Sixth and District of

Columbia Circuits, while somewhat of an improvement, is

really not much of a standard at all, allowing individual

13

federal judges to determine which administrative decisions

would or would not affect the hypothetical prisoner “of

ordinary firmness.” And tellingly, it too has led to federal

scrutiny of state decisions that Meachum and Sandin indicate

are mundane enough to be within the scope of a prisoner’s

lawfully imposed sentence. See, e.g., Hall v. Sutton, 755

F.2d 786, 787 (11 Cir. 1985) (allegedly retaliatory

confiscation of tennis shoes, though not cognizable as due

process claim, could proceed as retaliation claim.)

B. Separation of Powers.

It is similarly beyond dispute that day-to-day prison

operations are consigned to the executive, not the judiciary.

“{Jjudicial deference is accorded not merely because the

administrator ordinarily will, as a matter of fact in a

particular case, have a better grasp of his domain than the

reviewing judge, but also because the operation of our

correctional facilities is peculiarly the province of the

Legislative and Executive Branches of our Government, not

the Judicial.” Bell v. Wolfish, 441 U.S. 520, 548 (1979).

The injury-free and subjective-chill ~ standards

confuse, if not merge, the executive function of prison

administrators and the traditional duties of judges. Because

no significant threshold is set, any administrative decision,

no matter how trivial, can become the subject of a retaliation

case merely because a felon alleges improper motivation.

Courts presiding over prisoner retaliation suits “inevitably

would become the primary arbiters of what constitutes the

best solution to every administrative problem [put at issue],

thereby ‘unnecessarily perpetuat|ing] | federal]

involvement... in [the] affairs of prison administration,””

Turner v. Safley, 482 U.S. 78, 89 (1987) (quoting Procunier,

416 U.S. at 407). Those approaches improperly place the

courts “astride the day-to-day functioning of state prisons and

14

involve the judiciary in issues and discretionary decisions

that are not the business of federal judges.”” Meachum, 427

U.S. at 228-29.

The same is true of the more objective, but still

inherently uncertain, “person of ordinary firmness” standard

applied in the Second, Third, Sixth and District of Columbia

Circuits. As discussed above, they routinely result in judicial

review. of administrative decisions that this Court has

sensibly consigned to executive branch personnel. Instead of

leaving such matters in the hands of officials possessing the

“flexibility [] specially warranted in the fine-tuning of the

ordinary incidents of prison life,” Sandin, 515 U.S. at 483,

that approach has resulted in such decisions being

reevaluated through a system that is far more rigid and

detached from the realities that give rise to prisoner cases,

C. impact on Prison Management.

Those deviations from constitutional principles have

real world impact. It must. be remembered that the task of

properly running their prisons is, among “the most vexing of

all state responsibilities.” /d. at 137 (Burger, C.J.,

concurring). Retaliation suits add to that burden “{bJecause

an oOfficial’s state of mind is easy to allege and hard to

disprove” and, no matter how insubstantial the underlying

dispute, they are “less amenable to summary disposition []”

Crawford-El, 523 U.S. at 584-585.

As the National Institute of Corrections has noted,

“[c]ases that survive summary judgment often require

defendants and other staff members to put in long hours

conferring with counsel, answering interrogatories, giving

depositions, preparing for trial... and testifying at trial.

Many non-frivolous suits concern small monetary sums, and

the time devoted to them by administrators is

15

disproportionate to the amounts’ involved.” G. Cole,

R. Hanson, and J. Gilbert, supra, at 5-6, Other staff members

have to spend time retrieving, organizing and often redacting

documents. And as the case moves to trial, additional sets of

employees are diverted from institutional duties to transport

prisoner-plaintiffs and inmate witnesses to and from court.

But the disruption is not limited to the diversion of

staff members. It has far more serious consequences for the

maintenance of order within the volatile prison environment:

Even if correctional officials are able to

“win” the suits against them, leadership may

be hurt when wardens are placed on trial. In

the adversarial process, plaintiff and

defendant--prisoner and warden--aré legally

and symbolically equal, a fact that does not go

unnoticed by those whom the warden must

supervise.

An institution whose prisoners have

successfully sued administrators may find its

staff fearful of becoming defendants in

another lawsuit and thus reluctant to exercise

discretion to solve festering and potentially

serious problems. The emotional costs of

litigation for staff and inmates may increase

tensions, with ensuing management and

security problems.

G. Cole, R. Hanson, and J. Gilbert, supra, at 5-6, 8.

Prison officials already face “Herculean

obstacles” in dealing with the “complex and intractable”

16

problems of prison administration. Procunier, 416 U.S. at

404. Prisoners should certainly have redress for wrongful

official action, but there must be some common-sense

limits. The injury standards utilized by most Circuits

impose few. The consequences warrant this Court’s

attention.

IV. This Court Should Adopt A Bright-Line

Rule Based On Sandin v. Conner.

All of those problems can be addressed by the

adoption of a clear standard that is rooted in this Court’s prior

decisions -- a holding that disputed government action does

not inflict sufficient injury to sustain a prisoner retaliation

claim unless it imposes an “atypical and significant hardship

on the inmate in relation to the ordinary incidents of prison

life” for purposes of Sandin, 515 U.S. at 484. As would be

developed more fully through their brief on the merits, the

amici States submit that this result is strongly supported by

three lines of analysis.

First, this Court has consistently recognized that

special institutional needs justify differing treatment of the

right underlying the claim at issue here, the First Amendment

right of expressive conduct. The special needs of government

agencies require that speech rights be defined differently in

the public employment context from those enjoyed by the

public at large outside that context. See Waters v. Churchill,

511 U.S. 661 (1994). The unique mission of, and demands

upon, the military have resulted in limitation of Free Exercise

rights in the context of military service. Goldman v.

Weinberger, 475 U.S. 503 (1986). Finally, Fourth

Amendment privacy and security interests balance differently

when special needs justify intrusive government action.

Vernonia School Dist. 47J v. Acton, 575 U.S. 646, 665

(1995); Skinner v. Railway Labor Executives Ass'n, 489 U.S.

Te

17

602, 620 (1989); Michigan Dept. of State Police v. Sitz, 496

U.S. 444 (1990).

This Court has repeatedly recognized the uniqueness

of the prison environment and the resulting need to adjust the

normal scope of First Amendment rights. The special

demands of that environment equal or exceed those giving

rise to the special rules just discussed. Hence this Court

would not be breaking new ground in creating a specially

crafted rule for prisoner retaliation cases. Indeed, it has

already done so. See Lewis v. Casey, 518 U.S. 343, 355

(1996) (access to courts); Price v. Johnson, 334 U.S. 266,

285 (1948) (same); Jones v. North Carolina Prisoners’

Labor Union, Inc, 433 U.S. 119, 125-26, 128 (1972)

(association),

Second, the rule the amici States suggest is itself well

crafted to address the problems discussed in the previous

section. Although Sandin’s “atypical and _ significant

hardship” test admittedly was not. crafted for retaliation

claims, it, like Meachum before it, was informed by the same

federalism, separation of powers and practical considerations.

515 U.S. at 482-83; Meachum, 427 U.S, at 229.

Third, the Sandin standard would add symmetry to

this area of law that is a staple of federal practice. Although

their rapid growth has been checked by the Prison Litigation

Reform Act, P.L. No. 104-134, 110 Stat. 1321, 1366 (Apr.

26, 1996), prisoner claims still make up a significant portion

of the federal docket. Establishing a uniform threshold for

federal review of penal decisions would not only simplify the

evaluation of often-cryptic pro se pleadings, but would also

add internal logic for determining which state decisions have

sufficient import to warrant federal scrutiny.

18

CONCLUSION

For all the foregoing reasons, the petition should be

granted.

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General of Ohio

DAVID M. GORMLEY

State Solicitor

ROBERT C. MAIER*

TODD R. MARTI

Assistant Solicitors

*Counsel of Record

November, 2001