NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS W.S. RICHEY, No. 17-35032
Plaintiff-Appellee, D.C. No. 3:12-cv-05060-BHS
v.
MEMORANDUM*
D. DAHNE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted March 13, 2018
Seattle, Washington
Before: W. FLETCHER and GOULD, Circuit Judges, and EZRA,** District
Judge.
Thomas Richey, a Washington state prisoner, filed an internal grievance
complaining about the actions of a prison guard. The grievance included rude
comments about the guard’s weight, including describing her as “extremely
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
obese.” Dennis Dahne, an official charged with handling grievances, took issue
with parts of the grievance and told Richey to rewrite the grievance to eliminate
the objectionable commentary. Richey submitted a “rewrite” that kept the rude
comments, and that resulted in the facts that generated this lawsuit.
Dahne did not process the rewritten grievance still containing the offensive
language about the guard’s weight, and the grievance was subsequently considered
to be “administratively withdrawn,” which meant that it would not be processed.
Richey sued for violation of his First Amendment right to petition and for
retaliation for exercising his rights under the First Amendment.1 The district court
granted summary judgment to Richey on the right to petition claim, and denied
summary judgment to Dahne on the retaliation claim, holding that there were
material questions of fact related to that claim.
Dahne appeals, arguing that he is entitled to qualified immunity on both
claims. We affirm the district court’s grant of summary judgment to Richey on his
right to petition claim, but reverse the district court on qualified immunity grounds
on his retaliation claim.
1. Under the First Amendment, speech is protected unless the speech
falls under one of a few narrowly defined categories of unprotected speech such as
1
We previously reviewed this case at the motion to dismiss stage, holding that
Richey had stated a plausible claim for relief. Richey v. Dahne, 624 F. App'x 525
(9th Cir. 2015).
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fighting words, defamation, or obscenity. R.A.V. v. City of St. Paul, 505 U.S. 377,
382– 84 (1992). We have previously held that “disrespectful language in a
prisoner’s grievance is itself protected activity under the First Amendment.”
Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (citing Bradley v. Hall, 64
F.3d 1276, 1281–82 (9th Cir. 1995)). But to say that a category of speech is
protected does not mean that all governmental limits on such speech are
unconstitutional. In Turner v. Safley, the United States Supreme Court held that a
prison regulation that restricts inmates’ constitutional rights could be
constitutionally sound if it “is reasonably related to legitimate penological
interests.” 482 U.S. 78, 89 (1987). The standard under Turner requires that a valid
regulation must (1) be content neutral, (2) logically advance proper goals such as
institutional security and safety, and (3) not be an exaggerated response in relation
to those goals. Id. at 93. The Supreme Court later clarified that a prison regulation
is considered to be content neutral if its purpose is “unrelated to the suppression of
expression.” Thornburgh v. Abbott, 490 U.S. 401, 415 (1989) (quoting Procunier
v. Martinez, 416 U.S. 396, 413 (1974)).
In Brodheim we held squarely that no legitimate penological interest is
served by prison rules prohibiting disrespectful language in grievances. Brodheim,
584 F.3d at 1273. We reasoned that grievances were easy to insulate from other
prisoners and from those prison officials who are the target of the grievance, so
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that disrespectful language in a grievance did not raise any substantial security
concern. Id. “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
unexpressed thoughts.” Id. (quoting Bradley 64 F.3d at 1281).
Dahne contends that Brodheim clearly established only that it would be
unconstitutional to punish a prisoner because of the content of a grievance, and not
that it was unconstitutional to refuse the grievance because of that content. We
reject this contention. The holding of Brodheim is not as narrow as Dahne
contends. While it is true that Brodheim involved a warning or threat against a
prisoner because of the content of a grievance, limiting Brodheim to only those
types of cases would require that we ignore the Brodheim court’s reasoning, and
that we disregard the broader First Amendment framework under Turner. Instead,
we consider that a correct reading of the scope of the holding in Brodheim is that
rules prohibiting disrespectful language do not serve a legitimate penological
interest in the special context of prison grievances. Under the Turner framework, a
prison may constrain the expression of prisoners for a non-content-based legitimate
penological reason, such as avoiding hostilities or potential violence. But absent
such a legitimate penological reason, content-based limitation of a prisoner’s
expression is unconstitutional. Prisoners, just like those on the outside, have and
value their First Amendment rights.
4
We clarify, however, that a prison official merely requesting that a prisoner
rewrite a grievance is not a First Amendment violation. The prison could and did
have valid grounds to make such a request in the interest of maintaining good
relations between prisoners and guards. But, the violation here occurred when
Dahne refused to allow the grievance to proceed through the administrative process
after Richey did not rewrite it in a way that satisfied Dahne’s sense of propriety.
Functionally, allowing curtailment of the prison’s grievance process in this way
would mean that only a grievance that conformed to Dahne’s personal conception
of acceptable content could get meaningful review. That is the sort of content-
based discrimination that runs contrary to First Amendment protections.
We also stress that the holding of Brodheim relates only to the narrow
category of cases dealing with prison grievances. Nothing about Brodheim or our
holding today should be construed as suggesting that prisoners have a right to
publicly use disrespectful language in the broader prison environment. Such
actions would plausibly raise legitimate penological concerns related to the
security of guards and the desirability of maintaining harmonious relationships
between guards and prisoners to the extent possible. Hence prisons will often be
justified in curtailing that sort of public disrespectful behavior outside of the prison
grievance process.
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2. Turning to Richey’s retaliation claim, we hold that the district court
erred by not granting summary judgment to Dahne on qualified immunity grounds.
In Rhodes v. Robinson, we held that a retaliation claim has five elements:
(1) An assertion that a state actor took some adverse action
against an inmate (2) because of (3) that prisoner’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 559, 567–68 (9th Cir. 2005). Neither our prior case law nor that of the
Supreme Court has clearly established that merely refusing to accept a grievance
for processing is a retaliatory adverse action. Richey claims that under Brodheim
an “adverse regulatory action” can count as a retaliatory adverse action. And he
argues that refusing to process the grievance is an adverse regulatory action.
However, in context in Brodheim the “adverse regulatory action” language refers
to some additional punitive action or threat of punitive action over and above
merely refusing to accept the grievance. Brodheim, 584 F.3d at 1270–71. Because
of the lack of case law addressing the issue of whether not processing a grievance
could be viewed as retaliation, it is not the case that “every reasonable official
would have understood” that refusing a grievance violates a prisoner’s right against
retaliation. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). We reverse the district
court and grant summary judgment for Dahne on Richey’s retaliation claim on
qualified immunity grounds.
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AFFIRMED IN PART AND REVERSED IN PART.
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