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

IN THE

Supreme Court of the Gnited States

JEANNE WOODFORD, DEWEY WOOTEN, ANTHONY

P. KANE, H. WILLIAMS, D.A. DACANAY, AND L.A. NIEHUIS,

Petitioners,

Vv.

ROMIRICO REMEIDIO,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE STATES OF INDIANA, ALABAMA,

ALASKA, ARIZONA, COLORADO, DELAWARE,

GEORGIA, HAWAII, IDAHO, ILLINOIS, MICHIGAN,

MONTANA, NEW HAMPSHIRE, OHIO, OKLAHOMA,

OREGON, PENNSYLVANIA, SOUTH CAROLINA, TEXAS,

VIRGINIA, WASHINGTON, WEST VIRGINIA, and

WYOMING AS AMICI CURIAE

IN SUPPORT OF THE PETITION

Office of the Indiana STEVE CARTER

Attorney General Attorney General

IGC South, Fifth Floor THOMAS M. FISHER*

302 West Washington Strect Solicitor General

Indianapolis, IN 46204 JULIE A. HOFFMAN

(317) 232-6255 Deputy Attorncy General

*Counsel of Record Counsel for Amici Curiae

(Additional counsel listed inside cover)

No. 06-167 : 3 emer.

ADDITIONAL COUNSEL

Troy King

Attorney General

State of Alabama

Terry Goddard

Attorney General

State of Arizona

Carl C. Danberg

Attorney General

State of Delaware

Mark J. Bennett

Attorney General

State of Hawati

Lisa Madigan

Attorney General

State of Illinois

Mike McGrath

- Attorney General

State of Montana

Jim Petro

Attorney General

State of Ohio

Hardy Myers

Attorney General

State of Oregon

Henry McMaster

Attorney General

State of South Carolina

David W. Marquez

Attorney General

State of Alaska

John Suthers

Attomey General

State of Colorado

Thurbert E. Baker

Attorney General

State of Georgia

Lawrence G. Wasden

Attorney General

State of Idaho

Michael A. Cox

Attorney General

State of Michigan

Kelly A. Ayotte

Attorney General

State of New Hampshire

W.A. Drew Edmondson

Attorney General

State of Oklahoma

Tom Corbett

Attorney General

State of Pennsylvania

Greg Abbott

Attorney General

State of Texas

Robert F. McDonnell

Attorney General

Commonwealth of Virginia

Darrell V. McGraw, Jr.

Attorney General

State of West Virginia

Rob McKenna

Attorney General

State of Washington

Patrick J. Crank

Attorney General

State of Wyoming

QUESTION PRESENTED

Can an inmate’s First Amendment retaliation claim

survive summary judgment when the inmate cannot prove

that there was no objectively legitimate penological reason

for the government action?

ii

TABLE OF CONTENTS

FOF Rae PEGS URIBE BEEOD vos casvesnsnicenidbsevecntieravncisansctants i

FRR, OF ATOR Ie wicinsersersiveriieryenscrisennnsinanes ill

INTEREST OF AMICE CURIAE .n.csccciccrsessnexesesesessess l

REASONS FOR GRANTING THE PETITION .......... |

I. Prison Guards in Many States Face

Unpredictable Odds Resisting _ First

Amendment Retaliation Claims While

Those in Other States Need Not Fear Having

Their Motives Second-Guessed ...............::ccc00008 l

A. A deep circuit conflict demonstrates

judicial uncertainty over how to handle

prisoners’ First Amendment retaliation

SIE vecdencimiiiciviatibinicaitcmawanctitndnduilicies I

B. The standard for retaliation claims has

real-world litigation consequences of a

DOUETHIBITY VESE SCONE ...2.cecscssccorecenesensseeseesennes 4

II. The Rule Applied in the Decision Below

Conflicts with Turner v. Safley and Fails to

Give Proper Deference to Prison Officials........... 6

CFe i AN ichnsivibbarvncniicd idiebisesiNicaecebinsugneteesiiiin 16

“we

TABLE OF AUTHORITIES

Cases

Adams v. Wainwright, 875 F.2d 1536 (11th Cir. 1989)......... 2

Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998) ..0.........c.ee eee 8

Armstead v. Clark, 2006 WL 2373241 -

a canceusbaceuseacteaniieisnurtiletind 5

Armstead v. Clark, No. TH 02-40-C-M/F, Docket No. 92,

Entry Disssing Pending Motions,

PS I I acinar ontiietvehareosaebdiimensioaioiabada 7

Babcock v. White, 102 F.3d 267 (7th Cir. 1996)............ «ae

Beard v. Banks, _U.S. _, 1268S. Ct. 2572 (2006).............. 7

Byrd v. Moseley, 942 F. Supp. 642 (D.D.C. 1996) ................ 2

Curtis v. Solomon, 2006 WL 1653354 (N.D. Fla. 2006) ....... 2

Dejesus v. Edgar, 1998 WL 171272 (7th Cir. 1998)............. 3

Garcetti v. Ceballos, _U.S. __, 1268. Ct. 1951 (2006)......9

Graham v. Henderson, 89 F.3d 75 (2d Cir. 1996)............20-- 2

Hartman vy. Moore, _ U.S. _, 1268. Ct. 1695 (2006)....7, 8

Henderson v. Baird, 29 F.3d 464 (8th Cir. 1994) ..000.0...... 2

McClain vy. Leisure, 2006 WL 2468545 (7th Cir. 2006)...5, 6

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

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

Ee a UP IE Ds ticpincisisncchclchidigiasiannsacbbiaashiblionsdjiasubni y

Overton v. Bazzetta, 539 U.S. 126 (2003) ..........cccceeeceeeseeeeeee 8 :

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

Pickering v. Bd. of Ed. of Twp. High Sch.

Fg Fe Ges Pe CUE cirsvicsnsetsnitesinrsecatenbacinientiessin 9

IV

Cases (cont'd)

Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001) 000.0. 2

Rizzo v. Dawson, 778 F.2d 527 (9th Cir. 1985)... ee. l

Smith v. Davis, No. 3:02-CV-0233-PS,

Docket No. 145 (N.D. Ind. July 14, 2004)... 5

Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999)........ 2,9

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

Wagner v. Wheeler, 13 F.3d 86 (4th Cir. 1993)... 2

Woods v. Smith, 60 F.3d 1161 (Sth Cir. 1995) 00000 3

Constitutional Provisions

See Ut MIIIND We dacetiindsccecscitinicnscscieinnlipbiieiaes ohn passim

Other Authorities

Annual Report of the Director, Judicial Business of

the United States Courts, at 162 (Table C-2A)

(2005), available at http://www. uscourts.gov/judbus

2005/appendices/c2a.pdf (last visited Aug. 29, 2006)....... 4

Bureau of Justice Statistics, Prison and Jail Inmates

at Midyear 2004, at 2 (Table 1) (Apr. 2005),

available at http://www.ojp.usdoj.gov/bjs/pub/

pdf/pjim04.pdf (last visited Aug. 29, 2006)...........0.....

INTEREST OF AMICI CURIAE

Over 91% of all inmates in the United States are in state

or local custody. See Bureau of Justice Statistics, Prison and

Jail Inmates at Midvear 2004, at 2 (Table 1) (Apr. 2005),

available at http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim04.

pdf (last visited Aug. 29, 2006). Purely as a matter of

opportunity, every negative statement from an inmate to or

about a guard may plant the seed for a First Amendment

retaliation claim in the event of later disciplinary action

against the inmate. At the same time, prisons are dangerous

places for prisoners and guards alike, and they can be made

safer only by strict enforcement of prison rules. The amici

states therefore have a compelling interest in ensuring that

guards and other prison officials may enforce prison rules

when justified by legitimate penological interests without

fearing that their motives will ultimately be put on trial.

REASONS FOR GRANTING THE PETITION

[. Prison Guards in Many States Face Unpredictable

Odds Resisting First Amendment Retaliation Claims

While Those in Other States Need Not Fear Having

Their Motives Second-Guessed

A. A deep circuit conflict demonstrates judicial

uncertainty over how to handle prisoners’ First

Amendment retaliation claims

Federal appellate decisions in prisoner-retaliation cases

are all over the board with regard to both outcome and

reasoning. At one end of the continuum is the Ninth Circuit,

which permits a trial over retaliatory motive as long as the

prisoner disputes that enforcement of prison rules was

undertaken in good faith. See Pet. 8; see also Rizzo v.

Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (“{P]laintiff has

alleged that [the prison official’s] actions were retaliatory

2

and were arbitrary and capricious. He has thereby

sufficiently alleged that the retaliatory acts were not a

reasonable exercise of prison authority and that they did not

serve any legitimate correctional goal.”). At the other end of

the continuum is the Eighth Circuit, which ignores subjective

motivations and simply asks whether there is an adequate

evidentiary basis for the disciplinary action—essentially an

objective search for any legitimate justification. See

Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994); see

also Byrd v. Moseley, 942 F. Supp. 642, 645 (D.D.C. 1996)

(placing the burden on the plaintiff to show not only that

retaliation was a substantial or motivating factor, but also

that the retaliatory action did not advance legitimate

penological goals).

Other courts apply standards somewhere in. the middle.

The Second, Third, Fourth, Sixth, Seventh, and Eleventh

Circuits consider evidence of actual motive, but use the

burden-shifting analysis of Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274 (1977), to allow prison

officials to overcome a showing of improper motive with

evidence that the punishment would have been imposed

regardless. See Graham v. Henderson, 89 F.3d 75, 79-80 (2d

Cir. 1996); Rauser v. Horn, 241 F.3d 330, 334 (3d Cir.

2001); Wagner v. Wheeler, 13 F.3d 86, 90 (4th Cir. 1993);

Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999);

Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996); Adams

v. Wainwright, 875 F.2d 1536, 1537 (LIth Cir. 1989)

(declining “to adopt the ‘but for’ standard” because it places

a greater burden of proof on the prisoner); see also Curtis v.

Solomon, 2006 WL 1653354, at *18 (N.D. Fla. 2006)

(applying Mt. Healthy and stating that “it is beneficial to

maintain uniformity of analysis of First Amendment

retaliation claims’ ).

Meanwhile, the First, Fifth, and Tenth Circuits defin-

itively tax the prisoner to establish but-for causation. See

3

McDonald v. Hall, 610 F.2d 16, 18-19 (Ist Cir. 1979);

Woods v. Smith, 60 F.3d 1161, 1166 (Sth Cir. 1995);

Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998).

As the Petition outlines with respect to the Ninth Circuit,

see Pet. 8-9, even cases within circuits demonstrate

confusion and inconsistency. For example, while the

Seventh Circuit’s Babcock decision adopts the Mt. Healthy

burden-shifting standard, requiring the government to

disprove but-for causation, the court at times uses Babcock

to require prisoners to prove both the existence of a

retaliatory motive and its but-for relationship to the alleged

retaliatory action. See, e.g., Dejesus v. Edgar, 1998 WL

171272, at *2 (7th Cir. 1998) (“To state a claim of retaliatory

treatment for the exercise of a constitutionally protected

right, [plaintiff] must allege a chronology of events from

which retaliation may be inferred. Moreover, [plaintiff]

must show that he would [not] have been placed in

protective custody were it not for the fact that he filed

lawsuits against prison officials and served as a prison

litigator.”’).

These standards are fundamentally incompatible and lead

to different litigation burdens, settlement incentives, and

judicial results for prison officials of different states. Given

the same set of facts, a prison guard in the Second Circuit

will likely have more incentive to settle than one in the

Eighth Circuit, but less than one in the Ninth Circuit, where

nearly any prisoner-retaliation claim with some modicum of

evidentiary support may be tried. As important, these

different standards may translate into different levels of

vigilance when it comes to enforcing prison rules. Prison

guards in several pro-prisoner circuits, particularly the Ninth

Circuit but also the Second, Third, Fourth, Sixth, Seventh,

and Eleventh Circuits, may be more easily deterred from

disciplining inmates known to have filed grievances because

they are sitting ducks for burdensome and unpredictable

4

retaliation claims. Meanwhile, guards in the Eighth Circuit

may be confident that their legitimate enforcement

judgments will survive scrutiny even if an offending inmate

has recently filed a grievance.

The lower courts plainly have not reached and will not

reach a consensus on a proper, consistent standard for First

Amendment retaliation claims. With all eleven regional

Circuits that govern states having attempted to divine the

proper standard, there is little point in allowing the issue to

percolate any further. The Court should step in now and

settle this deep conflict.

B. The standard for retaliation claims has real-world

litigation consequences of a potentially vast scope

It is no secret that inmates generate an enormous volume

of civil-rights litigation: For the year ending September 30,

2005, 16,005 prisoner-civil-rights complaints were filed in

federal court, a 3.4% increase from 2004. See Annual

Report of the Director, Judicial Business of the United States

Courts, at 162 (Table C-2A) (2005), available at http://www.

uscourts.gov/judbus2005/appendices/c2a.pdf (last visited

Aug. 29, 2006). Neither the federal government nor many

states systematically collect data concerning First

Amendment retaliation claims, but it nonetheless appears

that a significant percentage of prisoner cases include such

claims. For example, in 2005, California state officials were

sued in 61 new federal prisoner-civil-rights cases alleging

retaliation, and in the first six months of 2006, California

officials have already been sued in 36 new retaliation cases.

Even a small state such as Indiana has seen over I5 new

retaliation cases filed by prisoners in state and federal court

since 2005 and nearly 40 since 2003.

The conflicting and unpredictable standards that swirl

about the country have a real impact on how states litigate

3

the rafts of retaliation claims they face each year, as a couple

of cases illustrate. In Smith v. Davis, No. 3:02-CV-0233-PS,

Docket No. 145 (N.D. Ind. July 14, 2004), where a prisoner

who filed a grievance was confined in administrative

segregation after he physically assaulted another inmate, the

court upheld a jury’s award of punitive damages based on

the prisoner’s testimony that a guard said “he would get him

for filing the grievance.” /d. at 7. Thus, an allegation of a

single hot-headed statement from one guard was enough to

defeat an undisputed compelling penological justification for

discipline. Prison officials likely would have prevailed

under the standards imposed by the First, Fifth, Eighth, and

Tenth Circuits. Within the Seventh Circuit, however, the

punitive-damages verdict may encourage prisoner-retaliation

claims even where there is undisputed prisoner misconduct.

Similarly, in Armstead v. Clark, No. TH 02-40-C-M/F,

Docket No. 92, Entry Discussing Pending Motions, (S.D.

Ind. Nov. 30, 2004), an inmate threatened a guard in a

grievance and the same day was formally reported for doing

so. The court said that the prisoner could not prevail “unless

he establishes that the challenged action would not have

occurred ‘but for’ the constitutionally protected -conduct,”

yet permitted the case to proceed to trial simply because the

prisoner disputed “the defendant’s reason for writing the

conduct report.” See id. at 2d. After a bench trial, the court

entered judgment for the guard. See Armstead v. Clark, 2006

WL 2373241, at *3 (7th Cir. 2006) (affirming). Summary

judgment, however, was defeated not by any serious evid-

ence of retaliation, but by a clever prisoner’s use of the

grievance procedure to simultaneously threaten a guard and

lay the groundwork for a plausible inference of retaliatory

motive when he was punished for the threat. Moreover, the

court was so unceftain how to apply the doctrine that it did

not even holed the prisoner to the but-for standard that the

court thought shoud apply (but which appears to have been

contrary to Babcock in any event). But see McClain v.

6

Leisure, 2006 WL 2468545, at *6-7 (7th Cir. 2006)

(granting summary judgment to a prison guard who issued a

conduct report against a prisoner for making false statements

in a grievance because there was no evidence to support the

contention of retaliatory motive).

il. The Rule Applied in the Decision Below Conflicts

with Turner v. Safley and Fails to Give Proper

Deference to Prison Officials

In Turner v. Safley, 482 U.S. 78 (1987), the Court, up-

holding a rule restricting inmate correspondence, announced

a legal standard for prisoners’ constitutional claims “that is

responsive both to the ‘policy of judicial restraint regarding

prisoner complaints and [to] the need to _ protect

constitutional rights.’” /d. at 85. Under Turner, a prison rule

will be upheld if it is “reasonably related to legitimate

penological interests.” /d. at 89. This standard is significant

here for two reasons.

1. First, under the Turner standard, it makes no dif-

ference whether the government’s legitimate interests are

mere pretexts and the rule at issue results from some

retaliatory motive on the part of prison officials. See id. at

89. Under the standard articulated by the decision below,

however, if an inmate so much as alleges that the rule or

regulation was applied to him in retaliation for exercise of

. his First Ameadment rights, the inmate is entitled to a jury

trial concerning the validity of the action. See Pet. 6.

In other words, absent a retaliation claim, courts analyze

prison restrictions impinging constitutional rights only for

bare legitimacy. However, in the Ninth Circuit’s view, if an

inmate alleges that otherwise legitimate enforcement of a

legitimate rule was undertaken in retaliation against his

exercise of First Amendment rights, courts must then

examine the officials’ motives. Neither the Ninth Circuit, nor

7

any other lower court, however, has explained why

prisoners’ First Amendment retaliation claims are entitled to

more searching review than prisoners’ other First Amend-

ment claims. See Beard v. Banks, _ US. _, 126 S. Ct.

2572, 2578 (2006) (applying Turner to a prisoner’s First

Amendment challenge to a prison rule).

Prison rules help bring order and safety to a chaotic and

insecure environment. Prison guards must be able to enforce

these rules so long as there is an objectively reasonable basis

for doing so. Relationships between prisoners and guards

are often contentious, but general bad feelings are part of the

nature of prison life and should be irrelevant in determining

whether a prisoner was subjected to unlawful First

Amendment retaliation. Subjective inquiries into motivation

are unpredictable, and prison guards cannot adequately

prepare airtight defenses, no matter how pure their personal

motivations. Prison guards usually can, however, prove an

objectively legitimate basis for enforcing a prison rule—if

one exists—and such evidence ought to be enough to defeat

a retaliation claim in this particular setting. Cf Hartman v.

Moore, __ US. _ , 126 S. Ct. 1695, 1704 (2006) (holding

that probable cause defeats retaliatory prosecution claims in

part because there is a “distinct body of highly valuable

circumstantial evidence available and apt to prove or

disprove retaliatory causation, namely evidence showing

whether there was or was not probable cause to bring the

criminal charge”).

2. Second, the Ninth Circuit’s rule also fails to give due

deference to the judgment of prison officials. In Turner, the

Court recognized that “‘courts are ill equipped to deal with

the increasingly urgent problems of prison administration

and reform’” and “{rjunning a prison is an inordinately

difficult undertaking that requires expertise, planning, and

commitment of resources, all of which are peculiarly within

the province of the legislative and executive branches of

P

government.” ,Turner, 482 U.S. at 84-85. The Court “‘ac-

cord{s] substantial deference to the professional judgment of

prison administrators, who bear a significant responsibility

for defining the legitimate goals of a corrections system and

for determining the most appropriate means to accomplish

them.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003); cf

Hartman, 126 S. Ct. at 1706 (proceeding from the

“presumption that a prosecutor has legitimate grounds for the

action he takes”).

The Ninth Circuit’s standard contravenes these principles

and enables inmates to use speech to immunize themselves

from the enforcement of prison rules. If an inmate can

simply file a grievance, violate the rules, and then assert a

triable federal claim that resulting discipline is illegal

retaliation, grievances may well create bubbles of protection

for prisoners-¢lever enough to use grievances as weapons.

Furtherniore, only in prisons, government employment,

and a few other contexts can ordinary, everyday conver-

sations prompt government action threatening First

Amendment rights. See Amatel v. Reno, 156 F.3d 192, 195-

96 (D.C. Cir. 1998). In these contexts, a class of subordinate

individuals must constantly interact with a class of

government supervisors whose actions may form the

predicate for constitutional claims. Some mode of deference

to government officials is even more necessary in these

contexts because every communication may become, or at

least plant the seeds for, a federal case. See id. (observing

that prisons, public schools, the military, and government

workplaces demand “regulation more intrusive than what

may lawfully apply to the gencral public”).

The mode of deference in government employment

cases relates to the content of employee speech. The

government has an interest in “promoting the efficiency of

the public services it performs through its employees,” so

9

government employee speech is protected only as to “mat-

ter[s] of public concern.” Pickering v. Bd. of Ed. of Twp.

High Sch. Dist. 205, 391 U.S. 563, 568 (1968). If the speech

relates in any way to official duties, courts defer to the legit-

imate judgments of government employers. See Garcetti v.

Ceballos, U.S. _, 1268. Ct. 1951, 1960 (2006).

The speech of prison inmates, however, is not similarly

divisible into categories of protected and unprotected speech.

As with ordinary citizens who are not government

employees, there is no requirement that inmate speech touch

a matter of public concern to be protected by the First

Amendment. See Thaddeus-X, 175 F.3d at 391 (“No circuit

has held that the . . . public concer limitation applies to

prisoners’ speech.”). Under standards such as that applied in

the decision below, therefore, nearly all speech or expressive

conduct by an inmate can become the basis for a First

Amendment retaliation claim.

To check that possibility, the same deference that courts

ordinarily pay to prison officials in response to prisoners’

constitutional claims should impose a brake on retaliation

claims as well. Rejecting prisoners’ retaliation claims where

a legitimate penological interest supports the government

action would prevent prisoners from using every

conversation to set up prison guards and other officials for

retaliation claims. It would also eliminate the apparent

inferiority of government employees relative to prisoners as

First Amendment retaliation plaintiffs. Regardless, the Court

should grant the petition to examine this issue.

10

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Office of the Indiana STEVE CARTER

Attorney General Attorney General

IGC South, Fifth Floor THOMAS M. FISHER*

302 West Washington Street Solicitor General

Indianapolis, IN 46204 JULIE A. HOFFMAN

(317) 232-6255 : Deputy Attorney General

*Counsel of Record Counsel for Amici Curiae

Dated: September |, 2006