Reply Brief — Tilton v. Remeidio (No. 06-167)

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(® FILED

No. 06-167 SEP 12 2006

Pe a

Supreme Court of the United States

JEANNE WOODFORD, DEWEY WOOTEN,

ANTHONY P. KANE, H. WILLIAMS,

D.A. DACANAY, AND L.A. NIENHUIS,

Petitioners,

ROMIRICO REMEIDIO,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

REPLY BRIEF FOR THE PETITIONERS

BILL LOCKYER

Attorney General of the

State of California

JAMES M. HUMES

Chief Assistant Attorney General

MANUEL M. MEDEIROS

State Solicitor General

FRANCES T. GRUNDER

Senior Assistant Attorney General

THOMAS S. PATTERSON*

Deputy Attorney General

State Bar No. 202890

455 Golden Gate Avenue,

Suite 11000

San Francisco, CA 94102-7004

Telephone: (415) 703-5727

Facsimile: (415) 703-5843

Counsel for Petitioners

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (4062) 342-2831

TABLE OF CONTENTS

Page

I. There Is Widespread Conflict Among the

Circuits Over How Courts Should Address In-

mate-Retaliation Claims.............:cccccccssecseeeeeeeees ss

II. The Rule Applied Below Cannot Be Reconciled

with Turner v. Safley or Hartman v. Moore ...... 4

A. Turner v. Safley Permits Objectively Rea-

sonable Restrictions on Inmate Expression

Regardless of Whether the Restrictions

Are Imposed by a Prison Regulation or an

Officials’ Independent Conduct .................. 4

B. The Court’s Rationale in Hartman uv.

Moore Counsels that Objective Reason-

ableness Should Be the Standard in In-

mate-Retaliation Cases.................cccccssscseess 6

acc liedoccstgehvasvncsesescosenssavesccosevects

TABLE OF AUTHORITIES

Page

CASES

Ali v. Dixon, 912 F.2d 86 (4th Cir. 1990)............ ccc eeeeeeeeeeeees 5

Beard v. Banks, 126 S. Ct. 2572 (2006)... ceeeeeseseeeees 5

Cornell v. Woods, 69 F.3d 1383 (8th Cir. 1995) ..0...........0000. 3

Hartman v. Moore, 126 S. Ct. 1695 (2006).............. 1, 4, 6, 7

Henderson v. Baird, 29 F.3d 464 (8th Cir. 1994)............ L.3

Hewitt v. Helms, 459 U.S. 460 (1983) 0... eesseeeeeeseeeeeees 7

Johnson v. California, 543 U.S. 499 (2005) 0.0... eee 5

Layne v. Vinzant, 657 F.2d 468 (1st Cir. 1981)............... 3, 4

McDonald v. Hall, 610 F.2d 16 (1st Cir. 1979)... ee 3

Morris v. Powell, 449 F.3d 682 (5th Cir. 2006).................... 7

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

ST Br beidcisenibtnnbiccstcicencicecedn 3

Orebaugh v. Caspart, 910 F.2d 526 (8th Cir. 1990)........ 3

Overton v. Bazetta, 539 U.S. 126 (2003) ..........c cece eeeeeeeees 5

Peterson v. Shanks, 149 F.3d 1140 (10th Cir. 1998)............ 3

Phelps v. Dunn, 965 F.2d 93 (6th Cir. 1992)... eee 5

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

Superintendent v. Hill, 472 U.S. 445 (1985)... eee 1

Turner v. Safley, 482 U.S. 78 (1987) ...........ceceeeees 1, 4, 5, 7

Washington v. Harper, 494 U.S. 210 (1990)......... ce eeeseeeees 5

STATUTES

BE UG; B FIG ceric sivisc secssttecnnesinivesvcesveertnasnercanninnn 7

REPLY BRIEF FOR THE PETITIONERS

Respondent’s only serious argument is that no conflict

exists among the circuit courts. However, the circuits are

in broad disagreement over how to handle inmate-

- retaliation claims. They conflict on: (1) whether an adverse

action against an inmate can be challenged as retaliatory

even though the action is objectively legitimate; and (2) if

so, what standards for pleading and proof of retaliatory

causation apply. (Pet. 7-10; Br. Amici States 1-4.) By

taking this case, the Court will be able to resolve these

persistent conflicts in a manner that is consistent with

Turner v. Safley, 482 U.S. .78 (1987), and Hartman uv.

Moore, 126 S. Ct. 1695 (2006).

I. There Is Widespread Conflict Among the Cir-

cuits Over How Courts Should Address Inmate-

Retaliation Claims.

Although the circuits vary widely over how to adjudi-

cate inmates’ retaliation claims, Respondent denies the

existence of any conflict among the circuits. (Opp. 5-10.)

His key argument contends that the Eighth Circuit does

not bar inmates from challenging objectively legitimate

discipline (discipline supported by some evidence) in

conflict with the ruling below. See Henderson v. Baird, 29

F.3d 464, 469 (8th Cir. 1994); Orebaugh v. Caspari, 910

F.2d 526, 528 (8th Cir. 1990). But the Eighth Circuit’s rule

is clear: when an inmate challenges a disciplinary viola-

tion as retaliatory, and there is “some evidence of the

violation, the finding essentially checkmates his retalia-

tion claim.” Henderson, 29 F.3d at 469 (applying the some-

evidence standard announced in Superintendent v. Hill,

472 U.S. 445 (1985), to hold that the retaliation claim

failed). This is in stark contrast to the rule applied below,

which allows inmates to challenge objectively legitimate

discipline as long as there is a dispute over the prison

officials’ subjective motive in administering the discipline.

In an attempt to explain away this conflict, Respon-

dent contends that the Eighth Circuit’s retaliatory-

discipline cases, Henderson and Orebaugh, are distin-

guishable from the case here. (Opp. 6-7.) Specifically, he

contends that the inmates’ First Amendment expression in

those cases was the same conduct for which they were

disciplined, whereas Respondent was disciplined for

conduct separate from the rules-violation charges. (Opp. 6-

7.)

But Respondent’s recitation of Henderson’s and

Orebaugh’s facts is mistaken, regardless of Respondent’s

failure to show why such a difference would have elimi-

nated the conflict. In Henderson, the inmate alleged that

he was charged with assault in retaliation for requesting

witnesses at a disciplinary hearing and reporting to the

F.B.I. that prison officials harassed him. Henderson, 29

F.3d at 465-66, 469 (noting that the magistrate judge had

denied the defendants’ summary-judgment motion based

on the inmate’s contact with the F.B.I.). The inmate did

not assert that his protected conduct was the assault

itself; indeed, he disputed that he committed an assault.

Id. at 466. And in Orebaugh, the inmate claimed that he

was charged with violating a light-duty order in retalia-

tion for filing a grievance about confiscated property.

Orebaugh, 910 F.2d at 527. He did not allege that disobey-

ing the light-duty order was protected conduct. Because

the Eighth Circuit bars retaliatory-discipline cases if the

discipline was objectively legitimate, it squarely conflicts

with the decision below.’

Respondent’s argument also errs by contending that

there is no real difference between the circuits that follow

a burden-shifting standard (purportedly modeling the

standard in Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977)), and those that follow a but-for

test. (Opp. 9-10.) Here too, much of the argument is based

on a misperception of the cases. For instance, he contends

that Peterson v. Shanks, 149 F.3d 1140, 1144-45 (10¢h Cir.

1998), applied a but-for test in name only because it found

“the retaliation claims to be wholly unsupported and

‘speculative.” (Opp. 10.) Although the court did state at

one point that “Peterson’s remaining allegations of retalia-

tion are based on mere speculation,” that was only after it

analyzed several other retaliation claims under the but-for

test in light of at least some evidence of retaliatory motive.

Id. at 1143-45 (emphasis added) (noting the inmate’s claim

that the warden made explicit and menacing threats to

him). Respondent also suggests that the First Circuit has

not adopted the but-for test in Layne v. Vinzant, 657 F.2d

468 (lst Cir. 1981), because its reference to the test was

mere dicta. (Opp. 9.) Respondent overlooks the case cited

in Layne, McDonald v. Hall, 610 F.2d 16, 18-19 (1st Cir.

* The opposition also mistakenly cites Cornell v. Woods, 69 F.3d

1383 (8th Cir. 1995), for the proposition that the Eighth Circuit

distinguishes between expressive conduct that violates prison rules and

expressive conduct that does not. (Opp. 7.) Cornell makes no such

distinction. But it does explain that the Eighth Circuit treats retalia-

tory-transfer cases differently from retaliatory-discipline cases. Cornell

v. Woods, 69 F.3d at 1388-89. It addresses retaliatory-discipline cases

under the some-evidence standard and retaliatory-transfer cases under

the but-for test. Id.

1979), in which the First Circuit ordered the district court

to apply the but-for test on remand.

In sum, the circuit conflict is widespread, as the

petition and amici states explain. This Court’s direction is

needed to establish a single, uniform standard for inmate-

retaliation cases that will eliminate the confusion among

the lower courts and the disparity by which inmates’

retaliation suits are decided across the circuits.

II. The Rule Applied Below Cannot Be Reconciled

with Turner v. Safley or Hartman v. Moore.

A. Turner v. Safley Permits Objectively Rea-

sonable Restrictions on Inmate Expression

Regardless of Whether the Restrictions Are

Imposed by a Prison Regulation or an Offi-

cial’s Independent Conduct.

The rule applied below conflicts with Turner v. Safley,

482 U.S. 78 (1987), because it allows inmates to challenge

objectively legitimate state actions simply by casting doubt

on the state actor’s motivation. Turner does not instruct

courts to fixate on officials’ subjective motivations; instead,

it tells courts to examine whether there is a “logical

connection between the regulation and the asserted goal.”

Id. at 89. If the restriction is objectively reasonable, it

withstands the test and is constitutional. Jd.

Respondent tries to reconcile the decision below. with

Turner by positing that Turner applies only when an

inmate’s constitutional rights are restricted directly by a

prison rule or regulation, not by an official’s action apart

from a regulation. (Opp. 11.) But this Court “made quite

clear that the standard of review [it] adopted in Turner

applies to all circumstances in which the needs of prison

administration implicate constitutional rights.” Washing-

ton v. Harper, 494 U.S. 210, 224 (1990). But cf. Johnson v.

California, 543 U.S. 499 (2005) (holding that strict scru-

tiny applies to inmates’ racial-discrimination claims).

Thus, the courts of appeals have not hesitated to apply

Turner to cases in which officials’ conduct — rather than a

regulation — is challenged. E.g., Phelps v. Dunn, 965 F.2d

93, 98-100 (6th Cir. 1992) (analyzing under Turner a

homosexual inmate’s claim that the prison chaplain and

deputy warden excluded him from leadership roles in

religious services); Ali v. Dixon, 912 F.2d 86, 89-91 (4th

Cir. 1990) (holding under Turner that an inmate’s religious

rights were not violated when officers failed to call him by

his newly adopted Muslim name).

It is true that this Court has only had opportunities to

apply the 7urner standard to cases in which prison rules

or regulations were challenged. E.g., Beard v. Banks, 126

S. Ct. 2572 (2006) (reviewing restriction on high-security

inmates’ access to newspapers, magazines, and photo-

graphs); Overton v. Bazetta, 539 U.S. 126 (2003) (address-

ing prisoner-visiting regulations); Shaw v. Murphy, 532

U.S. 223 (2001) (considering regulation of inmate commu-

nication). But this is not surprising, since regulations

control nearly every aspect of prison operations, and most

inmate restrictions are thereby related to some rule or

’ policy. Regardless, the Court’s purpose in Turner was to

establish a generally applicable legal standard. Turner,

482 U.S. at 85 (“Our task . . . is to formulate a standard of

review for prisoners’ constitutional claims that is respon-

sive both to the policy of judicial restraint regarding

prisoner complaints and to the need to protect constitu-

tional rights.” (internal quotation marks and citation

omitted)). And this Court permitted objectively reasonable

restrictions on inmates’ constitutional rights, thereby

barring inmates from challenging reasonable restrictions

by calling into question the officials’ subjective motiva-

tions.

B. The Court’s Rationale in Hartman v. Moore

Counsels that Objective Reasonableness

Should Be the Standard in Inmate-

Retaliation Cases. ,

The decision below is also at odds with Hartman uv.

Moore, 126 S. Ct. 1695 (2006), which holds that if a crimi-

nal prosecution is objectively reasonable — that is, sup-

ported by probable cause — it cannot be challenged as

retaliatory. The opposition attempts to discount Hartman’s

significance simply by stating that it is not a inmate-

retaliation case. (Opp. 11.) But this misses the point.

Unless inmate-retaliation cases are subject to an objec-

tive-reasonableness standard like retaliatory-prosecution

cases, an odd incongruence occurs. Under Hartman, a free

citizen who is charged with a criminal violation but later

acquitted is barred from pursuing a retaliation claim as long

as the criminal charge was objectively reasonable. Hartman,

126 S.Ct. at 1707. Yet under the rule applied below, a

prisoner who is not only charged with, but also convicted of

violating a prison rule, can challenge the conviction as

retaliatory despite its objective legitimacy.

This incongruence transfers to the respective officers

as well. The officer on the street who induced the criminal

prosecution has his decision reviewed for objective reason-

ableness. Id. But the correctional officer who files discipli-

nary charges against a prisoner has his subjective motives

probed regardless of how reasonable his action was —

indeed, even when the charges resulted in a conviction.

This inconsistency is exacerbated by the fact that inmates

are not limited to impugning officers’ motives only when

they are charged with a rules violation. Rather, they can

bring retaliation suits nearly any time officers take ad-

verse action against them. E.g., Morris v. Powell, 449 F.3d

682, 685-86 (5th Cir. 2006) (holding that an inmate may

bring a retaliation claim for any adverse action that would

chill an inmate of ordinary firmness from exercising First

Amendment rights in the future).

Such a result does not square with Hartman’s ration-

ale. The Court explained in Hartman that in order to show

causation in a retaliatory-prosecution case, the plaintiff

must overcome the presumption of legitimacy that is

afforded to prosecutorial decisions. Hartman, 126 S. Ct. at

1706. And it is appropriate to require the plaintiff to do

this by showing a lack of probable cause because there is

ordinarily ample evidence demonstrating whether prob-

able cause existed. Jd. at 1706. Likewise, this Court __

affords a high presumption of legitimacy to prison admin-

istrators’ decisions because of the intractable challenges

they must address. Turner, 482 U.S. at 84-85; see also

Hewitt v. Helms, 459 U.S. 460, 474 (1983) (describing how

administrators must be wary of subtle security threats

that have potentially disastrous consequences). And also

similar to the retaliatory-prosecution context, there exists

a ready body of evidence to demonstrate whether there

was a reasonable basis for adverse action against an

inmate. Prisons keep their own extensive records, and

under the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(a), prisoners must exhaust their administrative

remedies before filing suit, creating even more-detailed

documentation concerning the adverse action.

For these reasons, prisoners who bring retaliation

claims should be required to plead and prove an absence of

objective reasonableness in the same way that retaliatory-

prosecution plaintiffs must plead and prove a lack of

probable cause.

CONCLUSION

For the reasons stated above and in the petition for a

writ of certiorari, the petition should be granted.

Dated: September 12, 2006

Respectfully submitted,