# Reply Brief — Tilton v. Remeidio (No. 06-167) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1268%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2006 ## Text (® 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, v. 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 ii 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, 2 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 3 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. 4 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 6 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. 8 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. :s Vv 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, 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) 703-1113 Facsimile: (415) 703-5843 Counsel for Petitioners *Counsel of Record --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1268%3A2. Public record. Not legal advice.