Opposition Brief — Pearson v. Hines

Supreme Court,

_. oe

AUG 14 1997

No. 97-144 CLERK

IN THI -

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

STEVE PEARSON,

GARY DALE HINES,

A» . ;

Re spondent.,

ON PETITION FOR WRIT OF CERTIORARI TO

rHE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

MIARTIN H. KRESS!

(Counsel of Record)

McKENNA & CUNEO, LLP

Steuart Street Tower,

27th Floor

One Market

San Francisco, CA 94105

(415) 267-4000

DIANE J. MASON

PHILLIPS & SPALLAS, LLP

225 Bush Street

16th Floor

San Francisco, CA 94104

(415) 439-8870

- > - , | >

Attorneys for Re spondeni

e THIEL PRESS ¢ (202) 328-3286

:

i

QUESTIONS PRESENTED

l. Should this Court adopt a new standard in

First Amendment retaliation cases, contrary to precedent,

when there is no conflict between the circuits over the

applicable standards?

2. Is the due process “‘some evidence” standard

applicable in reviewing the conduct of an officer who issues

a false and retaliatory disciplinary charge?

il

TABLE OF CONTENTS

CURD Tete PRON EEE? oc ccenendscacesawnbeoins i

TABLE OF ALISIUGEUED 66 ices ceccivescintoene iv

RESPONDENT’S BRIEF IN OPPOSITION ........... |

CONSTITUTIONAL AND STATUTORY PROVISIONS

STATE Gress GH Eee CARS ic. occeseccviussesesas 2

REASONS FOR DENYING THE WRIT .............. 3

I. THE JUDGMENT BELOW FALLS SQUARELY

WITHIN GUIDELINES SET OUT IN US.

SUPREME COURT CASES GOVERNING

PRISONER CIVE RIIRURD 6 occ cccwtsssscnves 3

A. PRISONERS MUST MEET A HIGH

BURDEN TO PROCEED WITH

RETALIATION CARES occ cs cee nteus 5

B. PETITIONER’S PROPOSAL THAT ONLY

SIGNIFICANT DEPRIVATIONS

MAY FORM THE BASIS FOR A

RETALIATION CLAIM PRESENTS NO

QUESTION FOR REVIEW ............ 8

lil

C. PETITIONER FAILED TO RAISE THE

ISSUE OF SIGNIFICANT

DEPRIVATIONS IN THE COURTS

Tg REIS TNS ta Re\r Bree Gre leAare opepripicsen 13

II. THERE IS NO SIGNIFICANT CONFLICT OVER

APPLICATION OF THE “SOME EVIDENCE”

STANDARD AMONG THE CIRCUITS ....... io

Il. THIS CASE DOES NOT PRESENT SIMILAR

QUESTIONS TO THOSE BEFORE THE COURT

IN CRAWFORD-EL v. BRITTON

iV

TABLE OF AUTHORITIES

Cases

ACLU of Maryland v. Wimico County Md.,

999 F.2d 780, 785 (4th Cir. 1993) .......

Babcock v. White,

102 F.36 207 (7 Cor. T9968) oii sce

Barnett v. Centoni,

ot P.36 613 (om Ur. 1994) © oa ek

Black v. Lane,

ig We ER, EE, Ee ce) | Rinereeenp ere

Burkett v. Love,

OP F350 135 05 Coe. 1996) occ vce cn ds.

Crawford-El v. Britton,

93 F.3d 813 (D.C. Cir. 1996)

cert. granted, 138 L. Ed. 2d 210 (1997) ..

Crawford-El v. Britton,

951 F.2d 1314, 1318 (D.C. Cir. 1991)

cert. denied, 113 S.Ct. 62(1991) ......

DeGuiseppe v. Village of Bellwood,

68 F.3d 187 (7th Cir. 1995)

Dixon v. Brown,

38 F.3d 379 (8th Cir. 1994)

S$ ¢2@¢¢.0-s2@ 8 8 2 4 8

Graham v. Henderson,

89 F.3d 75 (2d Cir. 1996)

CE get OIE TR eT OUD Co Teme ee a

a & 6 SO) 4 8446'S © S68 OS

10, 17, 18

Vv

Hall v. Sutton,

tae 8a Fee UL Ce, TOS oi ee ee 11

Harris v. Ostrout,

O35 7.06 Fiz tiie Ce. 1995) 7 cil 4,12

Hines v. Gomez,

108 F.3d 265 (9th Cir. 1997) ..... 2,5, 7,15, 18, 19

Hines v. Gomez,

853 F. Supp. 329 (N.D. Cal. 1994) ........ 6. 7,43

Johnson v. Avery,

FOS Ol RD CED i ok ee he ieee wee 3

Kent v. Johnson,

Bal £00 1Ze0 (OC. F98T) Oo oe, 11

Lewis v. Casey,

Pa cis Gils ee Pe EO 9 8 36 sh ea ae 4

McDonald v. Hall,

i Paes eee CO, Bee ook ho es 4

McKinney v. Meese,

Bak Fite Fae CG AOFE 6 6h oh tee 15

Mount Healthy City School Board of Education v. Doyle,

GE ME BTU CRETE kas ce hoes Shae ee 6

Orebaugh v. Caspari,

iG Fae 526 (6 Cw. 1990) rs ak ives oes 9,16

Pell v. Procunier,

GET Ui Be FAROE shoe ria Rae CRE we 3

vil

Pratt v. Rowland,

CD FP re COG, 1995) oc vcs 4,3, 12, 17

Rodriguez v. Kincheloe,

763 F. Supp. 463 (E.D. Wash. 1991) ........... 11

Sandin v. Conner,

og Bg Re ee ey.) Dae eee meee 4,5,17

Smith v. Maschner,

eee en ee ee Cr. PSO as i ives oe oun 4

Superintendent v. Hill,

ie MA CLOGS 60 WN GAR 4A Rea ae ES 14

Thomas v. Carpenter,

RE © ae Se EE Ga, UPD och ck Condon aeuen 8

Turner v. Safley,

5 Rie, ef) Pee row We Sy Dy bE

United States v. Stotts,

ae ee CO GAP SB OPE) oo leek cewek ia 4

Ward v. Dyke,

58 F.3d 271 (6th Cir. 1995),

cert. denied, 116 S. Ct. $24 (1995) .......... 4,11

Wiideman y. Angelone,

848 F. Supp. 136 (D. Nev. 1994) ........... 10, 11

Woods v. Smith,

60 F.3d 1161 (Sth Cir. 1995),

cert. denied, 1163. Ct. SOO C1995) 2c ee ce 4

Vil

Constitutional Provisions

PI PU kok cot ctw pest Leake fase eset passim

Statutes

Ne Gh EO oo FS he ee bees ted eee 1,6

Rules

Federal Rule of Civil Procedure 56(e) ................. 6

nN CT TE 1s sv peeks e swans 7,43

l

RESPONDENT?’S BRIEF IN OPPOSITION

Respondent Gary Dale Hines respectfully requests

that this Court deny the petition for writ of certiorari seeking

review of the United States Court of Appeals for the Ninth

Circuit’s decision in this case.

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. amend. I (excerpt)

Congress shall make no law . . . abridging the

freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a

redress of grievances.

42 U.S.C. $ 1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of a 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 proceedings for redress. For

2

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

Respondent, Gary Dale Hines, a prison inmate,

brought this action alleging that Petitioner, Steve Pearson, a

correctional officer, retaliated against him for exercising his

First Amendment rights by issuing a false rules violation

report against Respondent. Petitioner was found by a jury to

have knowingly falsely accused Respondent in a Rules

Violation Report, and that Petitioner’s motive for doing so

was to retaliate against Respondent for his use of the prison

grievance system. The jury further found that Petitioner’s

conduct did not advance any legitimate penological goals.

The trial judge below denied Petitioner’s post-trial

motion for judgment as a matter of law and motion for new

trial. The court of appeals affirmed the trial judge’s findings.

Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997).

REASONS FOR DENYING THE WRIT

Il. THE JUDGMENT BELOW FALLS SQUARELY

WITHIN GUIDELINES SET OUT IN U.S.

SUPREME COURT CASES GOVERNING

PRISONER CIVIL RIGHTS

Hines’ claim that Pearson’s false rules violation

report was filed in retaliation of Hines’ prior use of the prison

grievance system is one of the limited First Amendment

rights retained by prisoners. It is well established 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 corrections system.”

Pell v. Procunier, 417 U.S. 817, 822 (1974). Included in

those rights is a prisoner’s right to petition the government

for redress of grievances. Turner v. Safley, 482 U.S. 78, 84

(1987) (citing Johnson v. Avery, 393 U.S. 483 (1969)). This

right was recently reaffirmed when this Court recognized that

prisoners retain “protection from arbitrary state action even

within the expected conditions of confinement. They may

invoke the First and Eighth Amendments and the Equal

Protection Clause of the Fourteenth Amendment where

appropriate, and may draw upon internal prison grievance

procedures and state judicial review where available.”

4

Sandin v. Conner, 132 L. Ed. 2d 418, 432 n.11 (1995). Cf.

Lewis v. Casey, 116 S. Ct. 2174, 2179 (1996) (“It is for the

courts to remedy past or imminent official interference with

individual inmates’ presentation of claims to the courts.”).

All of the circuits have recognized a prisoner’s right

to bring First Amendment retaliation claims. See McDonald

v. Hall, 610 F.2d 16 (1st Cir. 1979); Graham v. Henderson,

89 F.3d 75 (2d Cir. 1996); Burkett v. Love, 89 F.3d 135 (3d

Cir. 1996); United States v. Stotts, 925 F.2d 83 (4th Cir.

1991); Woods v. Smith, 60 F.3d 1161 (Sth Cir. 1995), cert.

denied, 116 S. Ct. 800, 133 L. Ed. 2d 747 (1995); Ward v.

Dyke, 58 F.3d 271 (6th Cir. 1995), cert. denied, 116 S. Ct.

524, 133 L. Ed. 2d 431 (1995); Babcock v. White, 102 F.3d

267, 275 (7th Cir. 1996); Dixon v. Brown, 38 F.3d 379 (8th

Cir. 1994); Pratt v. Rowland, 65 F.3d 802 (9th Cir. 1995);

Smith v. Maschner, 899 F.2d 940 (10th Cir. 1990); Harris v.

Ostrout, 65 F.3d 912 (11th Cir. 1995); Crawford-El v.

Britton, 951 F.2d 1314, 1318 (D.C. Cir. 1991), cert. denied,

113 S. Ct. 62, 121 L. Ed. 2d 29 (1991).

D. PRISONERS MUST MEET A HIGH

BURDEN TO PROCEED WITH

RETALIATION CASES

Petitioner’s contention that “[t]he Hines decision

stands as a roadmap for state prisoners who seek to avoid the

standards and competing interests that apply in challenges to

the prison disciplinary process” is without merit. Pet. 5. In

Pratt v. Rowland, the Ninth Circuit reexamined its prisoner

retaliation law in light of the guidelines set forth in Turner v.

Safley and Sandin v. Conner. In Pratt, the court recognized

that while retaliation cases “fall within the other protection[s]

from arbitrary state action,” courts need to “afford

appropriate deference and flexibility to prison officials in the

evaluation of proffered legitimate penological reasons for

conduct alleged to be retaliatory.” Pratt v. Rowland, 65 F.3d

at 807 (citing Sandin v. Conner, 132 L. Ed. 2d 418 (1995))

(internal quotations omitted). Under these guidelines

prisoners must meet the high burden of proving 1) that a

prison official’s allegedly retaliatory actions were motivated

by the inmate’s protected conduct, and 2) that the retaliatory

action advanced no legitimate penological interest. Hines v.

Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (citing Barnett v.

Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994)); Babcock v.

White, 102 F.3d 267, 275 (7th Cir. 1996) (citing Pratt v.

6

Rowland, 65 F.3d 802 (9th Cir. 1995)). This is basically the

same analysis used in Mount Healthy City School Board of

Education v. Doyle, 429 U.S. 274 (1977), in which this Court

established that in a § 1983 claim that a state actor retaliated

against a plaintiff for exercising a constitutional nght, the

plaintiff has the initial burden of showing that his

constitutionally protected conduct was a motivating factor in

the defendant’s retaliatory conduct, at which point the burden

shifts to the defendant to prove by a preponderance of the

evidence that it would have reached the same decision in the

absence of the protected conduct. See Graham v. Henderson,

89 F.3d 75, 79 (2d Cir. 1996).

Respondent has met this two pronged hurdle of

motive and legitimate penological goals since the beginning

of this action. It was applied in Petitioner’s motion for

summary judgment. See Hines v. Gomez, 853 F. Supp. 329

(N.D. Cal. 1994) (“The defendants’ motion purported to

challenge plaintiff's evidence of retaliatory motive; however,

as plaintiff noted in his opposition, defendants did not submit

evidence which was properly authenticated and therefore

admissible under Federal Rule of Civil Procedure 56(e).” u

Hines v. Gomez, 853 F. Supp. at 330 n.3; and “Moreover,

defendants did not attempt to establish by a preponderance of

7

the evidence that the allegedly retaliatory acts would have

occurred regardless of plaintiff's inmate appeals.” Hines v.

Gomez, 853 F. Supp. at 332 n.9.) This test was part of the

instructions given to the jury. RT 559:3-18. Finally, the

court of appeals applied this test in their review of the case.

See Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997)

(“Hines’ retaliation claim must rest on proof that Pearson

filed the disciplinary action against him in retaliation for

Hines’ exercise of his constitutional rights and that the

retaliatory action advanced no legitimate penological

interest.’’).

Petitioner’s assertion that “[t]he constitutional

balance struck by this Court in assessing prisoner First

Amendment claims . . . is skewed when the claim bears the

label of retaliation” is incorrect. Pet. 5 (citations omitted).

The Ninth Circuit has incorporated this Court’s concerns

regarding the institutional interests of prisons in its prisoner

retaliation cases by reviewing whether there are any legiti-

mate penological goals behind prison officials’ allegedly

unconstitutional conduct. No conflict with Supreme Court

precedent exists and certiorari is not appropriate. Sup. Ct. R.

10 (“A petition for a writ of certiorari is rarely granted when

the asserted error consists of erroneous factual findings or

8

the misapplication of a properly stated rule of law.”).

B. PETITIONER’S PROPOSAL THAT

ONLY SIGNIFICANT DEPRIVATIONS

MAY FORM THE BASIS FOR A

RETALIATION CLAIM PRESENTS NO

QUESTION FOR REVIEW

Petitioner’s request that this Court establish a rule

that only significant depnivations may form the basis for a

retaliation claim does not present a substantial question of

law for review as there is no disagreement on the injury

requirement in prisoner retaliation cases. It is a settled

doctrine of law that the injury asserted in a First Amendment

retaliation case is the retaliatory action’s chilling effect on a

prisoner’s First Amendment nghts. See Thomas v.

Carpenter, 881 F.2d 828, 829 (9th Cir. 1989) (“Because state

action designed to retaliate against and chill political

expression strikes at the heart of the First Amendment, all

that [plaintiff's] complaint needs so as to avoid dismissal are

allegations that [defendant's] conduct was motivated by an

intent to retaliate for his exercise of constitutionally protected

rights.” (internal cites omitted)); Babcock v. White, 102 F.3d

267, 275 (7th Cir. 1996) (retaliatory action complained of by

prisoner does not have to independently violate the

+

3

a ore ee

9

Constitution); ACLU of Maryland v. Wimico County Md.,

999 F.2d 780, 785 (4th Cir. 1993) (retaliation is actionable

because it may tend to chill an individual’s exercise of

constitutional rights).

The Ninth Circuit’s holdings regarding the injury

inherent in First Amendment retaliation claims do not

conflict with the holdings of the Fourth, Eighth, and District

of Columbia circuits as asserted by Petitioner. Pet. 7. In

ACLU of Maryland v. Wimico County Maryland, the court

held that the plaintiffs failed to prove any injury as the prison

officials actions “may have inconvenienced Appellees, but it

did not chill, impair, or deny their exercise of F irst

Amendment rights.” ACLU of Maryland v. Wimico County

Md., 999 F.2d at 786 (emphasis added).

The Eight Circuit’s stance that a claim for retaliation

fails “when the alleged retaliation arose from discipline

imparted for acts that a prisoner was not entitled to perform,”

Orebaugh v. Caspari, 910 F.2d 526, 528 (8th Cir. 1990), is

simply another way of saying that there were legitimate

penological reasons for the conduct alleged to be retaliatory.

Contrary to Petitioner’s interpretation of Eighth Circuit

retaliation law, the Eighth Circuit has held that “[b]ecause

10

the retaliatory filing of a disciplinary charge strikes at the

heart of an inmate’s constitutional nght to seek redress of ‘

grievances, the injury to this right inheres in the retaliatory

conduct itself,” and “when retaliatory conduct is involved,

there is no independent injury requirement.” Dixon v. Brown,

38 F.3d 379, 380 (8th Cir. 1994).

In Crawford-El v. Britton, 93 F.3d 813 (D.C. Cir.

1996), the standard approved by the District of Columbia

Circuit in evaluating whether an injury was asserted in a

retaliation case was “whether an official’s acts would chill or

silence a person of ordinary firmness from future First

Amendment activities.” /d. at 826 (internal quotations

omitted). Petitioner has failed to cite any case where the

injury required in a First Amendment retaliation claim is

more than the chilling effect on a prisoner’s First

Amendment nights.

Moreover, the authorities cited by Petitioner as

examples of the dangers of current retaliation law in fact

prove that courts are applying “the constitutional balance

struck by this Court.” Pet. 5. In Wiideman v. Angelone, 848

F. Supp. 136 (D. Nev. 1994), the court recognized that the

seizure of the typewriter was “reasonably related to a

1]

legitimate penological interest” and granted summary

judgment against the inmate. Wiideman v. Angelone, 848 F.

Supp. at 140. Likewise, in Rodriguez v. Kincheloe, 763 F.

Supp. 463 (E.D. Wash. 1991), the court found that the inmate

failed to prove that the defendant? actions were not

supported by legitimate penological goals and dismissed the

retaliation claim. Rodriguez v. Kincheloe, 763 F. Supp. at

472.

Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987),

involved an inmate’s First Amendment right to the free

exercise of his religious beliefs. While the Kent court

remanded the case back to the district court, the court

recognized that prison officials’ legitimate penological

objectives must be recognized. /d. at 1225. Sixth Circuit

retaliation cases since Turner v. Safley emphasize that prison

officials’ conduct is permissible where it serves a legitimate

penological purpose. See Ward v. Dyke, 58 F.3d 271, 275

(6th Cir. 1995), cert. denied, 116 S. Ct. 524, 133 L. Ed. 2d

431 (1995).

Hall v. Sutton, 755 F.2d 786 (11th Cir. 1985),

predates Turner v. Safley, 482 U.S. 78 (1987). Eleventh

Circuit retaliation law subsequent to Turner v. Safley has

12

held that a prisoner’s limited right of access to the courts may

not be burdened with practices that are not reasonably related ‘

to legitimate penological purposes. See Harris v. Ostrout, 65

F.3d 912, 916 (11th Cir. 1995). ‘

DeGuiseppe v. Village of Bellwood, 68 F.3d 187 (7th

Cir. 1995), is not relevant as it involves an action brought by

policemen against a village and its police chief. In fact, the

Seventh Circuit recognizes that courts “should afford

appropriate deference and flexibility to prison officials in the

evaluation of proffered legitimate penological reasons for

conduct alleged to be retaliatory.” Babcock v. White, 102

F.3d 267, 275 (7th Cir. 1996) (citing Pratt v. Rowland, 65

F.3d 802 (9th Cir. 1995) (internal quotations omitted).

Petitioner’s emphasis on the punishment received by

Hines as a result of Petitioner’s false and retaliatory

disciplinary charge is a crude attempt to shift this Court’s

focus away from the central issues involved in this retaliation

case, which are 1) was Petitioner’s conduct in filing a false

rules violation report improperly motivated by Respondent’s

exercise of his First Amendment rights, and 2) if so, whether

there is any legitimate penological interest in Petitioner’s

filing of a false rules violation report. The court of appeals

|

13

below applied the standards in a prisoner retaliation suit

which “afford appropriate deference and flexibility to prison

officials.” The Ninth Circuit’s holding in this case does not

conflict with the holdings of any other circuit. Certiorari is

therefore not appropriate in this case. Sup. Ct. R. 10a).

C. PETITIONER FAILED TO RAISE THE

ISSUE OF SIGNIFICANT

DEPRIVATIONS IN THE COURTS

BELOW

Not only is Petitioner’s request that this Court

establish a rule that only significant deprivations may form

the basis for a retaliation claim without merit, but it should

be waived as Petitioner failed to raise this issue in the courts

below. The subject of whether the punishment received by

Respondent, as a result of Petitioner’s false and retaliatory

disciplinary charge, is a significant deprivation or merely an

“everyday hardship incident to prison life” was not raised in

Petitioner’s motion for summary judgment. See Hines vy.

Gomez, 853 F. Supp. 329 (N.D. Cal. 1994) (“The defendants’

motion for summary judgment relied primarily on one legal

theory: that plaintiff's claim of retaliation must fail because

the filing of inmate appeals is not constitutionally protected

14

activity ....” /d. at 330; and “The court notes that

defendants focused on whether the subject of the inmate

appeal was of constitutional significance.” Jd. at 331 n.4.

(emphasis in original)). Similarly, the issue was not raised at

all in Petitioner’s motion for judgment as a matter of law or

for new trial. Petitioner raised the issue of whether the

punishment received by Hines constituted an atypical and

significant hardship as required in Due Process causes of

action for the first time with the court of appeals.

Petitioner’s argument is not properly before this Court.

II. THERE IS NO SIGNIFICANT CONFLICT

OVER APPLICATION OF THE “SOME

EVIDENCE” STANDARD AMONG THE

CIRCUITS

In Superintendent v. Hill, 472 U.S. 445 (1985), this

Court held that “the requirements of due process are satisfied

if some evidence supports the decision by the prison

disciplinary board to revoke good time credits.”

Superintendent v. Hill, 472 U.S. at 455. The court of appeals

below noted that in Hill, this Court considered the due

process protections available when a prison board makes a

disciplinary decision before it applied the “some evidence

| |

15

standard.” Hines v. Gomez, 108 F.3d at 268. In deciding

that the deferential “some evidence” standard should not

apply to review a prison guard’s allegedly false and

retaliatory rules violation accusation, the court below focused

on the absence of procedural safeguards protecting a prisoner

from false retaliatory accusations. Jd. C if. Graham v

Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (in rejecting the

application of the “some evidence” standard in a claim of

retaliation against a prisoner for pursuing a grievance, the

court noted that the protected right of redress is “substantive

rather than procedural and therefore cannot be obstructed,

regardless of the procedural means applied” (internal

citations omitted)).

Cases cited by Petitioner do not support his position

that there is a conflict between the circuits in applying the

“some evidence” standard. In McKinney v. Meese, 831 F.2d

728 (7th Cir. 1987), the prisoner alleged that “he was

disciplined in retaliation for the acts of another inmate and

that this violates the applicable administrative regulations

and due process.” /d. at 733. The McKinney case is not

applicable to because 1) there are no claims of First

Amendment retaliation, and 2) the prisoner was claiming a

violation of his due process rights. See Black v. Lane, 22

16

F.3d 1395, 1402 n.11 (7th Cir. 1994). In a First Amendment

retaliation case, the Seventh Circuit has explicitly limited the

“some evidence” standard to evaluating due process claims.

See Black v. Lane, 22 F.3d at 1402.

The current application of the “some evidence”

standard in Eighth Circuit prisoner retaliation cases stems

from Orebaugh v. Caspari, 910 F.2d 526 (8th Cir. 1990)'. In

Orebaugh, the court noted, applying the “some evidence”

standard, that the prisoner admitted to performing the acts he

was disciplined for and held “[wJhile a prisoner can state a

claim of retaliation by alleging that disciplinary actions were

based on false allegations, no claim can be stated when the

alleged retaliation arose from discipline imparted for acts that

a prisoner was not entitled to perform.” /d. at 528. This is

simply a restatement of the principle that a retaliation claim

fails if there are any legitimate penological goals behind the

prison officials’ allegedly unconstitutional conduct. The

Eighth Circuit recognizes that the filing of a false

disciplinary charge is actionable if done in retaliation for an

' It is interesting to note that the unanimous Ninth Circuit

opinion in Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997), was

written by the Honorable Donald P. Lay, Circuit Judge for the

Eight Circuit, sitting by designation.

17

inmate’s filing of a grievance. Dixon v. Brown, 38 F.3d 379

(8th Cir. 1994).

In examining whether there are any legitimate

penological goals behind a prison official’s action, the courts

are showing “appropriate deference and flexibility to state

officials trying to manage a volatile environment, especially

with regard to the fine tuning of the ordinary incidents of

prison life.” Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.

1995) (citing Sandin v. Conner, 132 L. Ed. 2d 418 (1995))

(internal quotations omitted). There are no legitimate

penological objectives to filing a false and retaliatory rules

violation report. The court of appeals below applied the

appropriate standards in evaluating Respondent's First

Amendment claim.

Ill. THIS CASE DOES NOT PRESENT SIMILAR

QUESTIONS TO THOSE BEFORE THE

COURT IN CRAWFORD-EL v. BRITTON

While Crawford-El v. Britton, 93 F.3d 813 (D.C. Cir.

1996), cert. granted, 138 L. Ed. 2d 210 (1997) involves an

inmate’s claim that a correctional officer retaliated against

him in violation of his First Amendment rights, this Court’s

18

decision in Crawford-El would not warrant reconsideration

of Hines by the Ninth Circuit. The Crawford-El court

determined that the inmate’s retaliation claim was a viable

cause of action after examining this Court’s recent prison

rights cases. Crawford-El v. Britton, 93 F.3d at 826. The

Crawford-El court then remanded the case back down to the

district court to determine whether the inmate had presented

evidence of the correctional officer’s impermissible motive

sufficient to survive summary judgment. /d. at 829. The

questions presented in the Petition for a Writ of Certioran in

Crawford-El v. Britton deal with issues of qualified

immunity. See Crawford-El v. Britton Petition for a Wnt of

Certiorari, p. 1. There are no issues of qualified immunity

raised in Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997).

19

CONCLUSION

Petitioner presents no unsettled issues of law for this

Court’s review. The Ninth Circuit Court of Appeals decision

in Hines v. Gomez, 108 F.3d 265. 267 (9th Cir. 1997)

followed well established precedents of this Court

Certiorari is not appropriate here.

Respectfully submitted,

Martin H. Kresse

(Counsel of Record)

McKenna & Cuneo, LLP

Steuart Street Tower, 27th Floor

One Market

San Francisco, California 94105

Tel. (415) 267-4000

Diane J. Mason

Phillips & Spallas, LLP

225 Bush Street, 16th Floor

San Francisco, California 94104

Tel. (415) 439-8870

August 14, 1997