FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL J. BRODHEIM, No. 07-17081
Plaintiff-Appellant, D.C. No.
v. 2:02-cv-0573 FCD
MICHAEL CRY, EFB (PC)
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Argued and Submitted
September 16, 2009—San Francisco, California
Filed October 28, 2009
Before: Stephen Reinhardt and Carlos T. Bea,
Circuit Judges, and Stephen G. Larson,* District Judge.
Opinion by Judge Larson;
Partial Concurrence and Partial Dissent by Judge Bea
*The Honorable Stephen G. Larson, United States District Judge for the
Central District of California, sitting by designation.
14539
BRODHEIM v. CRY 14543
COUNSEL
Joseph David Elford, Americans for Safe Access, Oakland,
California, for the plaintiff-appellant.
Kelli Hammond, Office of the California Attorney General,
Sacramento, California, for the defendant-appellee.
OPINION
LARSON, District Judge:
Michael Brodheim, a prisoner at the California Medical
Facility (“CMF”), appeals the district court’s grant of sum-
mary judgment against him on his claim that his First Amend-
ment right to petition the government for redress of
grievances was violated by defendant Michael Cry, the prison
Appeals Coordinator. The claimed violation occurred when a
prison official denied Brodheim’s written “interview request,”
and noted on the denial that Brodheim should be “careful”
what he writes and requests in his administrative grievances.
This was also followed by a request from the same official
that Brodheim be transferred out of the CMF due to his filing
of grievances and this lawsuit.
14544 BRODHEIM v. CRY
On cross-motions for summary judgment, the district court
granted summary judgment in favor of the defendant prison
officials, on the alternative bases of res judicata and that the
undisputed facts failed to establish the required elements of a
prison retaliation claim as set forth in Rhodes v. Robinson,
408 F.3d 559 (9th Cir. 2005). Specifically, the court found
that no genuine issue of fact existed as to whether Brodheim
suffered any retaliatory adverse action, whether an adverse
action was taken in response to protected conduct, or whether
his rights were sufficiently “chilled.” Even if he had so suf-
fered, the court held that any such adverse action was justified
by a legitimate penological interest. Because we find the dis-
trict court applied the incorrect legal standards in reaching
these conclusions, we reverse the entry of summary judgment
and remand the action.
Brodheim also appeals the district court’s denial of his
motion for partial summary judgment. Because we conclude
genuine issues of material fact remain in dispute, we affirm
the denial of his motion.
I. FACTUAL BACKGROUND
Plaintiff Michael Brodheim was at all times relevant to this
action a prisoner at CMF in Vacaville, California. Defendant
Cry was an Appeals Coordinator at CMF, defendant Ana
Ramirez Palmer was the CMF Warden, and defendant J.
Valadez was the Chief Deputy Warden (collectively, “defen-
dants” or “appellees”).
A. The Initial Grievance
The California Code of Regulations contains a multi-tiered
administrative scheme for inmate grievances. Cal. Code Regs.
tit. 15, §§ 3084.5. To file a grievance, an inmate submits his
complaint on California Department of Corrections Form 602
(referred to as a “602”). Cal. Code Regs. tit. 15, §§ 3084.2(a).
In the first, “informal” step of the grievance process, the
BRODHEIM v. CRY 14545
grievance is filed directly with any correctional staff member.
This informal level is waived for a variety of grievances,
including those concerning “alleged misconduct by a depart-
mental peace officer.” Cal. Code Regs. tit. 15,
§ 3084.5(a)(3)(G). The second level, also referred to as the
First Formal Level, involves filing a 602 form with one of the
institution’s Appeals Coordinators. Cal. Code Regs. tit. 15,
§ 3084.5(b). Inmates are required to submit grievances to the
Appeals Coordinator within fifteen working days of the inci-
dent at issue or of an unsatisfactory lower level decision. Cal.
Code Regs. tit. 15, § 3084.6(c). The decision of the Appeals
Coordinator may be appealed to the Warden at the Second
Formal Level. Cal. Code Regs. tit. 15, § 3084.5(c). The Third
Formal Level, also referred to as the “Director’s Level,” is the
final avenue for administrative appeal. Cal. Code Regs. tit. 15,
§ 3084.5(d).
On May 21, 2001, Brodheim filed an administrative griev-
ance with Correctional Officer Hearsum as a result of an inci-
dent on May 10, 2001. Brodheim claimed that, on that day,
while returning to work, Hearsum told Brodheim that Brod-
heim was “out of bounds” and instructed him to take a differ-
ent route back to his work assignment. Brodheim felt he was
not in violation of any rule, told Hearsum this, and asked what
rule he was violating. Brodheim contends that Hearsum got
“visibly angry” at this question, and that another correctional
officer nearby also got involved, acting “belligerently”
towards him, and ordered him to leave. In his grievance,
Brodheim claimed the officers’ actions were “both contemp-
tuous and discourteous” towards him, in violation of Depart-
ment of Corrections regulations. He requested that he either
be informed in writing of the rule he had been violating, or
alternatively for the officers to be told that no such rule
existed and that they be “remind[ed] . . . of their responsibili-
ties to remain both respectful and courteous at all times in
their dealings with inmates.” When Hearsum did not respond
to Brodheim’s original grievance, Brodheim filed a copy of
14546 BRODHEIM v. CRY
the 602 form on June 18, 2001, directly with Appeals Coordi-
nator Cry.
Upon receiving the grievance, Cry categorized it as a staff
complaint and rejected it as untimely because it was filed
more than fifteen days after the incident. On June 20, 2001,
Brodheim sent Cry an “inmate request for interview,” disput-
ing this categorization of his grievance. Brodheim’s request
was stated as follows:
This is not a “staff complaint” — any more than was
my appeal involving C/O Lindstrom. I am requesting
information (see part B). Any misconduct by C/O
Hearsum or C/O Hernandez was incidental to the
“story.” I want to know why I could not walk thru
Unit I and I think I’m entitled to an answer.
You’re such a “stickler” for the rules as you “see”
them. Why not teach staff that they are required to
respond informally to 602’s w/in 10 working days —
or is it your position that Title 15 applies only
“against” inmates? Or, is it your position that I am
not entitled to the information I request? What
exactly is your position, Mr. Cry — obstruct 602’s
at all costs???
This appeal was timely submitted to C/O Hearsum
w/in 15 working days. (See my 6/18 note.)
Thank you for your cooperation.
On June 21, 2001, Cry rejected the interview request with
the following notation: “The 695[1] rejection form stands as
noted. Untimely for a 5-10-01 issue. I’d also like to warn you
to be careful what you write, req[u]est on this form.”
1
Referring to California Department of Corrections Form 695, “In-
mate/Parolee Appeal Rejection Form.”
BRODHEIM v. CRY 14547
B. The Complaint Against Cry
After receiving the denial of his request for an interview,
Brodheim filed a separate complaint against Cry. In this com-
plaint, Brodheim alleged that Cry “is unprofessional in his
dealings with me and repeatedly attempts to infringe upon my
1st Amendment right to petition the government for redress of
grievances.” Specifically, Brodheim noted multiple occasions
where Cry had told him he filed too many grievances, “like
they’re soup.” As a staff complaint, the first level of review
was bypassed, and the complaint was reviewed by Correc-
tional Lieutenant B.C. Roszko, and a decision was signed by
defendant Valadez, on behalf of Warden Ramirez-Palmer. As
part of this review, Roskzo conducted a personal interview of
both Brodheim and Cry. The decision denied Brodheim’s
appeal, as did a subsequent Director’s Level Appeal issued on
November 20, 2001. The Director’s Level decision served to
exhaust Brodheim’s administrative remedies.
Between the date of the Director’s Level Decision in
November 2001 and April 18, 2006, Brodheim filed over 60
grievances with the Department of Corrections. This included
seven staff complaints, three of which were against Cry (and
were all denied).
C. Cry’s Memorandum
The instant action was filed on March 19, 2002. On June
8, 2004, Cry sent a memorandum to his supervisor, Associate
Warden Veal, “formally document[ing] a continued concern
of harassment and fixation exhibited by Inmate Brodheim.” In
the memorandum, Cry stated that “Since his return to CMF,
[Brodheim] has gradually turned his entire focus on litigation
directed towards the Inmate 602 Appeals Coordinator’s pro-
cess and the Board of Prison Terms.” Cry explained that his
rejection of Brodheim’s initial claim as untimely was a legal
issue, and that he did not feel it was a “staff complaint appeal
issue.” Cry expressed a concern that he was “starting to
14548 BRODHEIM v. CRY
receive other appeals from other inmates involving these same
allegations initiated by Inmate Brodheim.” Cry noted that two
inmates had informed him that Brodheim was “systematically
inciting other inmates and assisting them to file 602 com-
plaints utilizing these same disruptive tactics.”
Cry’s memorandum concluded with a recommendation that
Brodheim be considered for a possible transfer out of CMF,
noting a lack of restraining orders against Brodheim and gen-
erally questioning Brodheim’s “psychiatric override” designa-
tion, which is what led to his placement in CMF. Cry noted
that Brodheim’s “major problem” was “his attitude of superi-
ority above everyone else in levels of authority in CDC,” and
that he was “starting to make it difficult [for Cry] to perform
[his] duties as the Appeals Coordinator.”
In response to this memorandum, plaintiff was not trans-
ferred or disciplined. However, all appeals by Cry were sub-
sequently assigned to the other Appeals Coordinator at CMF,
R. Piazza.
D. The State Court Proceedings
On January 15, 2004, Brodheim filed a petition for a writ
of habeas corpus in the Superior Court of California for the
County of Solano. That petition was denied by the Superior
Court on the basis that Brodheim had failed “to make a prima
facie showing that the Appeals Coordinator engaged in mis-
conduct by rejecting petitioner’s prior appeals.” Upon appeal
of that decision, the state Court of Appeal denied the petition
on the alternative ground that Brodheim had failed to exhaust
his administrative remedies, noting that Brodheim could file
a subsequent petition upon doing so.
On May 31, 2005, Brodheim filed a second habeas corpus
petition in the Solano County Superior Court. The complaint
was based on the claim that the CMF warden at the time,
Warden Schwartz, was “infring[ing] upon petitioner’s statu-
BRODHEIM v. CRY 14549
tory and regulatory rights to file a complaint alleging peace
officer misconduct by permitting the very subject of such a
complaint to screen, review, and ‘reject’ the complaint itself.”
The factual allegations in that complaint discuss a griev-
ance Brodheim brought in November, 2003, challenging “in-
tentionally ambiguous language when preparing risk
assessments of indeterminably sentenced prisoners for consid-
eration by the Board of Prison Terms (‘Board’ or ‘BPT’) at
parole consideration hearings.” The CMF Appeals Coordina-
tor (presumably Cry) rejected that grievance on both jurisdic-
tional grounds and on the basis that it was untimely.
Brodheim subsequently filed a staff complaint alleging mis-
conduct by the CMF Appeals Coordinator in rejecting the
grievance, and subsequent complaints alleging misconduct in
the rejection of that staff complaint. Brodheim further alleged
that Warden Schwartz failed to properly respond to his com-
plaints, and wrote a memorandum that “criticized petitioner
for his protected First Amendment activity.” In addition to the
writ, Brodheim sought declaratory relief and an order to show
cause pursuant to Cal. Rules of Court 4.551(c)(1).
On December 12, 2005, the Superior Court issued a brief
order denying the second petition. The court characterized
Brodheim’s allegation as one that “his statutory right to file
a citizen’s complaint against a correctional officer was being
violated because Appeals Coordinator Cry had screened peti-
tioner’s inmate appeal directed against the appeals coordina-
tor.” Citing People v. Duvall, 9 Cal. 4th 464, 475 (1995), the
court held Brodheim “failed to state a prima facie case for
relief.” Id.
II. PROCEDURAL BACKGROUND
Brodheim filed a motion for partial summary judgment on
his First Amendment retaliation claims, and defendants filed
a motion for summary judgment on all of Brodheim’s claims.
On September 24, 2007, the district court adopted the findings
14550 BRODHEIM v. CRY
and recommendations of the magistrate judge assigned to the
case, granting defendants’ motion for summary judgment in
its entirety and denying Brodheim’s motion for partial sum-
mary judgment. In so doing, the court found that (1) there was
no adverse action taken in retaliation for Brodheim’s exercise
of his First Amendment rights; (2) “there was no evidence
that a reasonable fact finder could rely upon to conclude that
Cry’s written warning had a chilling effect on the exercise of
plaintiff’s rights;” (3) the warning was justified by the “legiti-
mate penological purpose in admonishing inmates as to the
manner and tone they adopt with prison authorities;” (4)
Brodheim’s claims were barred by res judicata; and (5) sup-
plemental jurisdiction over Brodheim’s pendent state claims
was inappropriate.
III. STANDARD OF REVIEW
We review an order granting summary judgment de novo,
applying the same standard as the district court: “[W]hether,
with the evidence viewed in the light most favorable to the
non-moving party, there are no genuine issues of material
fact, so that the moving party is entitled to a judgment as a
matter of law.” San Diego Police Officers’ Ass’n v. San Diego
City Employees’ Retirement Sys., 568 F.3d 725, 733 (9th Cir.
2009).
IV. ANALYSIS
A. Res Judicata
As an alternative basis for summary judgment, the district
court ruled that Brodheim’s claims were barred by the doc-
trine of res judicata. This was in error. First, the district court
applied the incorrect standard in evaluating whether plaintiff’s
claims were precluded by the December 2005 California state
court decision. Under 28 U.S.C. § 1738, federal courts are
required to give state court judgments the preclusive effects
they would be given by another court of that state. Migra v.
BRODHEIM v. CRY 14551
Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 84 (1984);
Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2004).
However, the district court applied the standard used to ana-
lyze the preclusive effect of prior federal court judgments.
[1] California law holds a final judgment of a state court
“precludes further proceedings if they are based on the same
cause of action.” Maldonado, 370 F.3d at 952. Unlike the fed-
eral courts, which apply a “transactional nucleus of facts” test,
“California courts employ the ‘primary rights’ theory to deter-
mine what constitutes the same cause of action for claim pre-
clusion purposes.” Id.
Under this theory, “a cause of action is (1) a primary right
possessed by the plaintiff, (2) a corresponding primary duty
devolving upon the defendant, and (3) a harm done by the
defendant which consists in a breach of such primary right
and duty.” City of Martinez v. Texaco Trading & Transp.,
Inc., 353 F.3d 758, 762 (9th Cir. 2003), citing Citizens for
Open Access to Sand and Tide, Inc. v. Seadrift Ass’n, 60 Cal.
App.4th 1053, 1065 (1998). “[I]f two actions involve the
same injury to the plaintiff and the same wrong by the defen-
dant, then the same primary right is at stake even if in the sec-
ond suit the plaintiff pleads different theories of recovery,
seeks different forms of relief and/or adds new facts support-
ing recovery.” Eichman v. Fotomat Corp., 147 Cal. App.3d
1170, 1174 (1983), quoted in San Diego Police Officers’
Ass’n, 568 F.3d at 734.
[2] The “causes of action” in the federal and state court
actions here were distinct, and thus the state court decision
did not preclude the federal action.2 Brodheim’s state court
2
Appellants argue that any claims that Brodheim could have brought in
his state court claim are barred by res judicata. However, under California
law, not all claims that may have been brought in an earlier case are barred
in a later action; rather only those that derive from the same primary right
are precluded. Grisham v. Philip Morris U.S.A., Inc., 40 Cal. 4th 623, 641
(Cal. 2007).
14552 BRODHEIM v. CRY
suit challenged the fairness of having staff complaints against
the Appeals Coordinator reviewed by the Appeals Coordina-
tor. He claimed that this effectively deprived him of his statu-
tory and regulatory rights to file a complaint by denying him
any meaningful review. Brodheim’s federal complaint, on the
other hand, concerned specific acts which he claimed consti-
tuted retaliation for the exercise of his constitutional right to
file a grievance, namely, the “warning” message and the sub-
sequent transfer request. These acts, he alleged, harmed him
by chilling the further exercise of his rights.
[3] The critical focus of primary rights analysis “is the
harm suffered.” San Diego Police Officers Ass’n, 568 F.3d at
734, quoting Agarwal v. Johnson, 25 Cal. 3d 932 (1970); see
also City of Martinez, 353 F.3d at 762. The two harms here—
lack of meaningful review, a procedural harm, and a retalia-
tory chilling of constitutional substantive rights—are distinct.
They were caused at different times, by different acts, and by
different actors. In the state action, the alleged harm was
inflicted by the Warden in 2003, when he allowed Cry to
review grievances Brodheim filed against Cry. In Brodheim’s
federal complaint, on the other hand, the actual alleged harm
was inflicted by Cry himself when he placed the handwritten
warning on Brodheim’s interview request form in 2001.
[4] Because the claims involved different causes of action
under the primary rights theory, we conclude the federal
action was not barred by the state court’s decision, and thus
reverse the district court’s contrary holding.
B. The Validity of Brodheim’s Claim on the Merits
[5] “Prison walls do not form a barrier separating prison
inmates from the protections of the Constitution.” Turner v.
Safley, 482 U.S. 78, 84 (1987); see also Bell v. Wolfish, 441
U.S. 520, 545 (1979). It is well-established that, among the
rights they retain, prisoners have a First Amendment right to
file prison grievances. See Rhodes v. Robinson, 408 F.3d 559,
BRODHEIM v. CRY 14553
566 (9th Cir. 2005); Bruce v. Ylst, 351 F.3d 1283, 1288 (9th
Cir. 2003). Retaliation against prisoners for their exercise of
this right is itself a constitutional violation, and prohibited as
a matter of “clearly established law.” See Rhodes, 408 F.3d at
566; Pratt v. Rowland, 65 F.3d 802, 806 & n.4 (9th Cir.
1994).
In Rhodes v. Robinson, we set forth the five basic elements
of a “viable claim of First Amendment retaliation”3 in the
prison context:
(1) An assertion that a state actor took some adverse
action against an inmate (2) because of (3) that pris-
oner’s protected conduct, and that such action (4)
chilled the inmate’s exercise of his First Amendment
rights, and (5) the action did not reasonably advance
a legitimate correctional goal.
408 F.3d at 567-68. See also Barnett v. Centoni, 31 F.3d 813,
815-16 (9th Cir. 1994) (per curiam). We also noted that a
plaintiff who fails to allege a chilling effect may still state a
claim if he alleges he suffered some other harm. Rhodes, 408
F.3d at 568 n. 11.
The district court found that no genuine issue of material
fact existed as to four of these elements: The existence of an
adverse action, the causation for the adverse action, the chill-
ing of Brodheim’s rights, and the relationship of any action to
a legitimate correctional goal. We find the district court erred
on each of these four grounds.
3
Although Rhodes concerned a district court’s grant of a Rule 12(b)(6)
motion to dismiss for failure to state a claim, the elements of the claim are
the same on a motion for summary judgment. On summary judgment,
however, the plaintiff must demonstrate there is a triable issue of material
fact on each element of his claim, as opposed to merely alleging facts suf-
ficient to state a claim.
14554 BRODHEIM v. CRY
1. Adverse Action
The district court found there was insufficient evidence to
support a finding that Cry’s handwritten statement constituted
an adverse action. In doing so, the court acknowledged that a
threat of discipline or transfer was sufficient to state a claim
for retaliation, but held that, on a motion for summary judg-
ment, a plaintiff “must present evidence showing that such a
threat to transfer for the exercise of First Amendment rights
actually occurred,” and that Brodheim failed to do so. This
was the incorrect standard to apply.
[6] As we have stated multiple times, “a retaliation claim
may assert an injury no more tangible than a chilling effect on
First Amendment rights.” Gomez v. Vernon, 255 F.3d 1118,
1127 (9th Cir. 2001), citing Hines v. Gomez, 108 F.3d 265,
269 (9th Cir. 1997). See also Burgess v. Moore, 39 F.3d 216,
218 (8th Cir. 1994) (“[A] threat of retaliation is sufficient
injury if made in retaliation for an inmate’s use of prison
grievance procedures.”). In Rhodes itself, we made this clear
by noting that an allegation that a person of ordinary firmness
would have been chilled is sufficient to state a retaliation
claim, and that, “since harm that is more than minimal will
almost always have a chilling effect [, a]lleging harm and
alleging the chilling effect would seem under the circum-
stances to be no more than a nicety.” 408 F.3d at 568, n. 11
(emphasis in original). Thus, the mere threat of harm can be
an adverse action, regardless of whether it is carried out
because the threat itself can have a chilling effect.
The district court and the defendants, however, contend that
a threat of harm must be explicit and specific to constitute an
adverse action. Thus, they argue, the threat here was not an
adverse action because it failed to explicitly state that disci-
pline, transfer, or some other negative result would occur as
a consequence for failing to comply.
[7] Outside the prison context, we have never held that a
plaintiff must establish an explicit threat to prevail on a retali-
BRODHEIM v. CRY 14555
ation claim. See, e.g., Berry v. Dep’t of Soc. Servs., 447 F.3d
642, 655 (9th Cir. 2006) (noting implicit threat of adverse
action sufficient to establish Title VII prima facie case);
N.L.R.B. v. Island Film Processing Co., Inc., 784 F.2d 1446,
1451 (9th Cir. 1986) (“Implied threats of retaliation suffice to
taint a [labor representation] election.”); see also Yanowitz v.
L’Oreal USA, Inc., 36 Cal. 4th 1028 (2005) (holding that
implied threat of termination plus pattern of negative treat-
ment may be adverse employment action for sex discrimina-
tion retaliation claim). We see no reason why a different
standard should apply in this setting. Thus, Brodheim need
not need establish that Cry’s statement contained an explicit,
specific threat of discipline or transfer if he failed to comply.
As the Second Circuit held in a related context, the question
for the district court to ask is whether “the record, taken in the
light most favorable to the plaintiff, reveals statements by the
defendant that a reasonable factfinder could . . . interpret as
intimating that some form of punishment or adverse regula-
tory action would follow.” Okwedy v. Molinari, 333 F.3d 339,
343 (2d Cir. 2003) (per curiam) (internal marks omitted).
[8] Under this standard, the record before the district court
was sufficient to establish a genuine issue of material fact as
to whether Cry’s warning constituted an adverse action. By its
very nature, a statement that “warns” a person to stop doing
something carries the implication of some consequence of a
failure to heed that warning. There were a number of things
that Cry, as a corrections officer, could have done if Brod-
heim failed to comply with his warning that would have had
a negative effect. In addition to the words of the warning
itself, the district court also had before it the 2004 memoran-
dum sent by Cry to the Warden, which stated that Brodheim’s
continued use of the grievance system was indeed the moti-
vating factor for his recommendation that Brodheim be trans-
ferred. While this memorandum was not submitted until after
the commencement of this suit, it is circumstantial evidence
that a jury could view as supporting Brodheim’s contention
14556 BRODHEIM v. CRY
the warning was a threat of transfer or disciplinary action if
he was not “careful” as to what he wrote in his grievances.
[9] The power of a threat lies not in any negative actions
eventually taken, but in the apprehension it creates in the
recipient of the threat. Based on the record before the district
court, a genuine issue of material fact exists as to whether
Cry’s statement intimated that some form of punishment or
adverse regulatory action would follow a failure to comply.
Thus, we reverse the district court’s finding that Brodheim
produced inadequate evidence of an adverse action.
2. Causation
[10] To prevail on a retaliation claim, a plaintiff must show
that his protected conduct was “the ‘substantial’ or ‘motivat-
ing’ factor behind the defendant’s conduct.” Sorrano’s Gasco,
Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). To show
the presence of this element on a motion for summary judg-
ment, Brodheim need only “put forth evidence of retaliatory
motive, that, taken in the light most favorable to him, presents
a genuine issue of material fact as to [Cry’s] intent” in issuing
the warning. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir.
2003). Even if there is a dispute as to whether Brodheim’s
“disrespectful language” or the grievance as a whole was the
motivating factor for Cry’s warning,4 we have previously held
that disrespectful language in a prisoner’s grievance is itself
protected activity under the First Amendment. Bradley v.
Hall, 64 F.3d 1276, 1281-82 (9th Cir. 1995) (holding that
“prison officials may not punish an inmate merely for using
‘hostile, sexual, abusive or threatening’ language in a written
4
Appellees argue that the comment was not in response to the “griev-
ance” (the 602 form), but only the “interview request form.” The applica-
bility of the constitutional right to redress of grievances does not hinge on
the label the prison places on a particular complaint. It is clear that Brod-
heim’s interview request — a challenge to an adverse ruling on his com-
plaint — was part of the grievance process, and was thus protected
activity.
BRODHEIM v. CRY 14557
grievance.”). It is thus undisputed that the warning was moti-
vated by Brodheim’s protected conduct, and we reverse the
district court’s contrary finding.
3. Chilling
[11] The district court examined several occasions on
which Brodheim claims his exercise of the right to file griev-
ances was “chilled,” as well as the number of grievances that
Brodheim filed after the incident, and concluded that Brod-
heim failed to produce sufficient evidence of such chilling.
However, this focus on whether or not the record showed Cry
was actually chilled was incorrect. In Rhodes, we explicitly
held that an objective standard governs the chilling inquiry; a
plaintiff does not have to show that “his speech was actually
inhibited or suppressed,” but rather that the adverse action at
issue “would chill or silence a person of ordinary firmness
from future First Amendment activities.” 408 F.3d at 568-69,
quoting Mendocino Enviro. Center v. Mendocino Cty., 192
F.3d 1283, 1300 (9th Cir. 1999) (emphasis in original). To
hold otherwise “would be unjust” as it would “allow a defen-
dant to escape liability for a First Amendment violation
merely because an unusually determined plaintiff persists in
his protected activity.” Id. at 569.
[12] We cannot say that, as a matter of law based upon the
record before us, Brodheim has failed to meet this objective
standard. A reasonable person may have been chilled by Cry’s
warning. We therefore reverse the finding of the district court
as to chilling.
4. Legitimate Penological Interest
[13] To prevail on a retaliation claim, a prisoner must show
that the challenged action “did not reasonably advance a legit-
imate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,
568 (9th Cir. 2005). The district court appeared to conclude
that Cry’s action “reasonably advance[d],” id., the legitimate
14558 BRODHEIM v. CRY
penological goal of “prohibiting disrespectful language.” This
is contrary to our established precedent.
In Bradley v. Hall, 64 F.3d 1276 (9th Cir. 1995), we con-
sidered a challenge to Oregon correctional regulations which
prohibited the use of “hostile, sexual, abusive, or threatening
language.” 64 F.3d at 1278. In invalidating these “disrespect
regulations,” we acknowledged that they furthered several
legitimate penological interests, but “balance[d] the impor-
tance of the prisoner’s infringed right against the importance
of the penological interest served by the rule” to find that, as
applied to the content of formal written grievances, the rule
impermissibly “substantially burdened” prisoners’ right of
access to the courts. Id. at 1280-81.
The Supreme Court explicitly disapproved of our “balanc-
ing” method of analysis, though not the holding of Bradley,
in Shaw v. Murphy, 532 U.S. 223 (2001). There, the Supreme
Court reaffirmed that the four factors set forth in Turner v.
Safley, 482 U.S. 78 (1987), are the only factors a court is to
consider in determining whether a proffered legitimate peno-
logical interest is reasonably related to a regulation which
infringes on a prisoner’s constitutional right. The Court re-
elucidated these factors:
First and foremost, “there must be a ‘valid, rational
connection’ between the prison regulation and the
legitimate [and neutral] governmental interest put
forward to justify it.” If the connection between the
regulation and the asserted goal is “arbitrary or irra-
tional,” then the regulation fails, irrespective of
whether the other factors tilt in its favor. In addition,
courts should consider three other factors: the exis-
tence of “alternative means of exercising the right”
available to inmates; “the impact accommodation of
the asserted constitutional right will have on guards
and other inmates, and on the allocation of prison
resources generally”; and “the absence of ready
BRODHEIM v. CRY 14559
alternatives” available to the prison for achieving the
governmental objectives.
532 U.S. at 228, quoting Turner (internal citations omitted);
see also Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008)
(noting Turner factors). A balancing inquiry, the Court noted,
would lead courts to “unnecessarily perpetuat[e]the involve-
ment of the federal courts in affairs of prison administration.”
532 U.S. at 230, quoting Turner, 482 U.S. at 89.
[14] Removing the balancing step from our analysis, and
solely applying the Turner factors, we reach the same result
as the Bradley court. In Bradley, we found that the policy at
issue failed to meet the first Turner factor of the connection
between the valid interest and the regulation at issue. The
court stated:
We of course acknowledge the prison’s valid interest
in the peaceable operation of the prison through the
insistence on respect, rather than through violent
confrontation. However, the link between this impor-
tant purpose and the disrespect rules as applied to
formal written grievances is weak. The director and
his experts argue that to permit the utterance of dis-
respectful language in any forum at any time would
result in a total breakdown of prison security and
discipline. Other courts that have addressed this
argument in similar contexts have rejected it. We
agree with these courts that such absolutist argu-
ments for enforcement of disrespect rules in every
communication public and private overstate their
substantial importance.
64 F.3d at 1281 (citations omitted). The reasoning applies
equally in this case; there is no indication that language in a
written complaint like Brodheim’s posed such a substantial
threat to security and discipline in CMF.
14560 BRODHEIM v. CRY
The district court distinguished this case from Bradley by
seizing on dicta that stated that, in that case, the corrections
department’s “legitimate security concerns would be largely
served by procedures that require grievances to be in writing
and shield those prison officials who are in direct contact with
the inmates from reading any insulting remarks that might be
contained in those grievances.” 64 F.3d at 1281. The district
court commented that such an alternative was impossible in
this circumstance, because it was Cry “himself who was the
subject as well as the intended reader of plaintiff’s complaint,
and therefore could not be ‘shielded’ as Bradley proposed.”
This is inconsequential for several reasons. First, immediately
after the passage quoted by the district court, we explicitly
disclaimed that we were mandating such a “shielding” alter-
native; rather, it was merely one of multiple “obvious, simple
alternatives that both accommodate the prisoner’s right to file
a grievance and prevent any open expression of disrespect or
any disrespectful communication between prisoner and guard
or between prisoner and prisoner.” Second, it was indeed pos-
sible to “shield” Cry from these complaints,5 by developing a
system by which grievances about a specific individual are
not processed by that individual. This is in fact what hap-
pened in 2004 when Brodheim’s grievances were assigned to
a different appeals coordinator. Finally, in no way is the
fourth Turner factor, the presence or absence of alternative
means of achieving the stated objective, dispositive.6
Examining the other Turner factors, we find that the warn-
ing was insufficiently related to legitimate penological inter-
ests. It does not appear that there was any other way for
Brodheim to exercise his grievance rights other than via the
written grievance system. As to the other factor, the effect
5
Moreover, as discussed above, plaintiff’s state court suit was explicitly
premised on the failure of the Warden to establish such a shielding system.
6
The district court also balanced Brodheim’s infringed right against the
defendants’ penological interest, to find the latter outweighed the former.
This was erroneous in light of Shaw.
BRODHEIM v. CRY 14561
accommodation of the asserted right would have on the cor-
rections system, we explained in Bradley:
It takes little imagination to structure a grievance
system and regime of disrespect rules that would
make a prisoner’s statements in a complaint or griev-
ance invisible to all those involved in the daily oper-
ations of the prison, alleviating any security concern.
A prisoner’s statement in a grievance need not have
any more impact on prison security through the
maintenance of respect than the prisoner’s unex-
pressed thoughts.
64 F.3d at 1281.
[15] We stand by this statement today, and hold that Cry’s
warning of Brodheim cannot escape constitutional scrutiny by
citing a legitimate penological interest. Accordingly, we
reverse the district court’s finding that a legitimate penologi-
cal interest barred plaintiff’s claim.
Since we reverse the district court on each of the alternative
grounds on which it granted summary judgment for defen-
dants, the entire grant of summary judgment is reversed.
Since the district court declined to exercise its discretion to
exercise supplemental jurisdiction over Brodheim’s state law
claims solely on the basis of summary judgment on the fed-
eral claims, these claims are also reinstated.
C. Brodheim’s Motion for Partial Summary Judgment
Brodheim also appeals the denial of his motion for partial
summary judgment. Since a denial of a motion for summary
judgment is generally not a final order, it is therefore not gen-
erally appealable. Jones-Hamilton Co. v. Beazer Materials &
Services, Inc., 973 F.2d 688, 693-94 (9th Cir. 1992). How-
ever, the Court of Appeals “may review a denial of summary
judgment where it is accompanied by a final order disposing
14562 BRODHEIM v. CRY
of all issues before the district court and where the record has
been sufficiently developed to support meaningful review of
the denied motion.” 973 F.2d at 694 n. 2.
[16] As discussed above, genuine issues of material fact
remain in dispute as to Brodheim’s retaliation claim. Namely,
it is a matter of disputed fact as to whether the warning and
surrounding circumstances were sufficiently threatening to
constitute an adverse action, and whether a “person of ordi-
nary firmness” would have had his or her First Amendment
rights chilled by the conduct of appellees. Accordingly, we
affirm the district court’s denial of Brodheim’s motion for
partial summary judgment.
V. CONCLUSION
The determination of an individual prisoner in persisting in
filing grievances in spite of a threat of retaliation does not
indicate he has not suffered a constitutional wrong. Even if
the threat or warning is general and not carried out, a prisoner
may prevail on a First Amendment claim if that threat would
chill the protected activity of an ordinary prisoner.
Since Brodheim’s claim was not barred on res judicata
grounds, and he has produced sufficient evidence to create a
genuine issue of material fact as to each of the required ele-
ments of his prison retaliation claim, we reverse the district
court on each of its alternative grounds for granting summary
judgment for defendants, affirm the district court’s denial of
plaintiff’s motion for partial summary judgment, and remand
the case for further proceedings.
REVERSED in part, AFFIRMED in part, and
REMANDED. Costs on appeal are awarded to Brodheim.
BRODHEIM v. CRY 14563
BEA, Circuit Judge, concurring in part and concurring in the
judgment:
I agree with the majority opinion except for its treatment of
the prison’s legitimate penological interest. To my mind, the
majority’s holding that there is no legitimate penological
interest in admonishing prisoners to be more respectful in
future written grievances is unnecessary to the resolution of
the case. If the majority opinion made the exact opposite
holding, that there is such a legitimate penological interest,
summary judgment would still be in error. This is because a
rational trier of fact could find, based on Cry having warned
Brodheim to “be careful what you write, request on this
form,” that Cry retaliated against Brodheim for either being
disrespectful in the grievance, or for having filed the griev-
ance itself. Because there is no legitimate penological interest
in warning prisoners not to file grievances, a trial would still
be necessary to resolve the issue of Cry’s retaliatory motive
even if the majority held there was no penological interest in
admonishing prisoners to be more respectful. Therefore,
because the district court erred by granting summary judg-
ment to defendants no matter which way we decide this issue,
it is unnecessary to decide it. However, I agree that the district
court erred by granting summary judgment to the defendants,
so I concur.