Williams v. Fox

Filing 56

ORDER - IT IS ORDERED: Defendant Foxs Motion to Stay this case pending the outcome of Plaintiffs interlocutory appeal (Dkt. 33 ) is MOOT, as that appeal has been dismissed. Plaintiffs request for permission to resubmit his First Amended Complaint, construed as a motion for leave to file a Second Amended Complaint (Dkt. 42 ) is GRANTED. The Second Amended Complaint is found at Dkt. 43 . To maintain clarity in the record, the Clerk of Court shall add to the docket, in the lead case, the separa te Complaint in the consolidated case (Dkt. 3 in No. 1:16-cv-00478-EJL), noting the date it was originally submitted to the Court. Plaintiffs Request for Sanctions, Motion to Strike, and Seal Discovery from the Record (Dkt. 46 ) is MOOT, as the subs tantive motion to which it pertains (Dkt. 41 ) has already been denied as moot. Plaintiffs Motion for Additional Interrogatories/Motion to Strike from the Record Discovery Submitted by Defendant (Dkt. 51 ) is DENIED. Plaintiffs objections to the Or der of Reassignment and Consolidation,construed as motions to sever (Dkt. 54 in Case No. 1:16-cv-00143-EJL & Dkt. 8 in Case No. 1:16-cv-00478-EJL) are DENIED for the reasons statedin the Order of Reassignment and Consolidation. (See Dkt. 53 .) Signed by Judge Edward J. Lodge. Associated Cases: 1:16-cv-00143-EJL, 1:16-cv-00478-EJL(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs) Modified on 3/8/2017 (cjs).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KENT WILLIAMS,
Plaintiff,
v.

Case No. 1:16-cv-00143-EJL
(lead case)
ORDER

GUARD FOX,
Defendant.

KENT WILLIAMS,

Case No. 1:16-cv-00478-EJL
(consolidated case)
Plaintiff,

v.
GUARD BROOKS; GUARD
NETTLETON; GUARD HANSEN;
GUARD CULBERTSON; and
GUARD JENSEN,
Defendants.
Plaintiff Kent Williams, a prisoner currently in the custody of the Idaho
Department of Correction (“IDOC”), is proceeding pro se and in forma pauperis in this
consolidated civil rights action. The events giving rise to Plaintiff’s claims arose while he
was incarcerated at the Ada County Jail.
ORDER - 1

Currently pending is Plaintiff’s motion requesting “permission to resubmit
Plaintiffs’ first amended complaint,” which the Court construes as a motion for leave to
file a second amended complaint in Case No. 1:16-cv-00143-EJL (the lead case). (Dkt.
42.) He has also filed a proposed amendment, which the Court will identify as Plaintiff’s
Second Amended Complaint. (Dkt. 43.) Also pending are the following: (1) Defendant
Fox’s Motion to Stay (Dkt. 33); (2) Plaintiff’s Request for Sanctions, Motion to Strike
and Seal Discovery (Dkt. 46); (3) Plaintiff’s Motion for Additional Interrogatories and
Motion to Strike from the Record Discovery Submitted by Defendant (Dkt. 51); and (4)
Plaintiff’s objections to the Order of Reassignment and Consolidation, construed as
motions to sever the lead and consolidated cases (Dkt. 54; and Dkt. 8 in the consolidated
case.)
Additionally, in Case No. 1:16-cv-00478-EJL, the Court must engage in the initial
screening process as required by the Prison Litigation Reform Act. See 28 U.S.C. §§
1915 and 1915A.
1.

Standard of Law for Review of Prisoner Complaints
The Court is required to review complaints filed in forma pauperis, or complaints

filed by prisoners seeking relief against a governmental entity or an officer or employee
of a governmental entity, to determine whether summary dismissal is appropriate. The
Court must dismiss a complaint, or any portion thereof, that states a frivolous or
malicious claim, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§§ 1915(d)(2) & 1915A(b).
ORDER - 2

A complaint fails to state a claim for relief under Rule 8 of the Federal Rules of
Civil Procedure if the factual assertions in the complaint, taken as true, are insufficient
for the reviewing court plausibly “to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. In other words, although Rule 8 “does not require detailed
factual allegations, . . . it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Id. (internal quotation marks omitted). If the facts pleaded are
“merely consistent with a defendant’s liability,” the complaint has not stated a claim for
relief that is plausible on its face. Id. (internal quotation marks omitted).
Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. To state a
valid claim under § 1983, a plaintiff must allege a violation of rights protected by the
Constitution or created by federal statute proximately caused by the conduct of a person
acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
Prison officials generally are not liable for monetary damages in their individual
capacities under § 1983 unless they personally participated in the alleged constitutional
violations. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Iqbal, 556 U.S. at
677 (“[E]ach Government official, his or her title notwithstanding, is only liable for his or
her own misconduct.”). However, “[a] defendant may be held liable as a supervisor under
§ 1983 ‘if there exists . . . a sufficient causal connection between the supervisor’s

ORDER - 3

wrongful conduct and the constitutional violation.’” Starr v. Baca, 652 F.3d 1202, 1207
(9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)).
A plaintiff can establish this causal connection by alleging that a defendant (1)
“set[] in motion a series of acts by others”; (2) “knowingly refus[ed] to terminate a series
of acts by others, which [the supervisor] knew or reasonably should have known would
cause others to inflict a constitutional injury”; (3) fail[ed] to act or improperly acting in
“the training, supervision, or control of his subordinates”; (4) “acquiesc[ed] in the
constitutional deprivation”; or (5) engag[ed] in “conduct that showed a reckless or callous
indifference to the rights of others.” Id. at 1205-09. A plaintiff cannot simply restate these
standards of law in a complaint; instead, a plaintiff must provide specific facts supporting
the elements of such a claim, and he must allege facts showing a causal link between
each defendant and Plaintiff’s injury or damage. Alleging “the mere possibility of
misconduct” is not enough. Iqbal, 556 U.S. at 679.
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that leave to amend
a complaint should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A
liberal amendment policy is especially important with respect to pro se litigants. Courts
must liberally construe civil rights actions filed by pro se litigants so as not to close the
courthouse doors to those truly in need of relief. Eldridge v. Block, 832 F.2d 1132, 1135,
1137 (9th Cir. 1995).
2.

Background
In Case No. 1:16-cv-00143 (the lead case), United States Magistrate Judge Candy

W. Dale reviewed Plaintiff’s initial Complaint, pursuant to 28 U.S.C. §§ 1915 and
ORDER - 4

1915A, and allowed Plaintiff to proceed on his First Amendment claim alleging that
Defendant Deputy Fox retaliated against Plaintiff for filing jail grievances containing
disrespectful language; Fox allegedly threatened to injure Plaintiff if he continued to file
such grievances. The Court did not allow Plaintiff to proceed on a freestanding free
speech claim. (Dkt. 8.)
Plaintiff filed a motion to reconsider the Court’s analysis of his free speech claim,
as well as a motion for a preliminary injunction, and the case was reassigned to the
undersigned judge. The Court denied both motions. (Dkt. 23.) Plaintiff then filed a
request for an “Amended Temporary Restraining Order and/or Preliminary Injunction[]
and Updated Information” and a “Request to Amend Complaint and Add an Additional
Defendant” (Dkt. 24, 31), both of which the Court construed as seeking leave to amend
the initial Complaint. Because it was evident from Plaintiff’s filings that he did not intend
for his proposed first amended complaint to supersede the initial Complaint—the
amendment contained only new allegations and omitted any claims against Defendant
Fox—the Court denied the motions to amend without prejudice. (Dkt. 37.) The Court
gave Plaintiff 30 days to submit a new motion to amend and a proposed second amended
complaint.
On October 28, 2016, Plaintiff filed a new civil rights action, asserting similar
claims against Defendant Deputies Brooks, Nettleton, Hansen, Culbertson, and Jensen.
See Case No. 1:16-cv-00478. That case was recently reassigned to the undersigned judge

ORDER - 5

and consolidated with Case No. 1:16-cv-00143, as the cases appear related and would
benefit from coordinated processing. (Dkt. 53.)
Before the expiration of the 30-day amendment period in Case No. 1:16-cv-00143,
Plaintiff filed a motion for an extension of time “to submit any matter with the Court
which is currently under a time line or which may in the near future arrise [sic].”
However, Plaintiff did not attach a certificate of service, nor did he specifically request an
extension of time to file a second amended complaint. (Dkt. 38.) Plaintiff filed his latest
motion to amend and a proposed second amended complaint on December 20, 2016.
(Dkt. 42, 43.) Though the motion and amendment appear to be untimely, the Court will
exercise its discretion to accept the filing of the motion to amend and the proposed
second amended complaint.
The Court has reviewed the law regarding prisoner grievances and the First
Amendment and will proceed to screen the pleadings in both the lead and consolidated
cases. See 28 U.S.C. §§ 1915(e) and 1915A.
In the proposed second amended complaint in the lead case, No. 1:16-cv-00143EJL, Plaintiff appears to allege that Defendant Fox refused to process Plaintiff’s
grievances regarding (1) Fox’s action in throwing away Plaintiff’s outgoing mail, and (2)
Plaintiff’s classification in administrative segregation. (Dkt. 43-1 at 3-4.) Plaintiff also
claims that Defendant Fox threatened Plaintiff with disciplinary action in retaliation for
Plaintiff’s use of disrespectful language in grievances. (Dkt. 43 at 2, 5-6.) Although
Plaintiff previously asserted, in his initial Complaint, that Fox threatened to injure

ORDER - 6

Plaintiff by stating, “[F]irst chance I get at your neck” (Dkt. 3 at 4), he has withdrawn
that allegations, as it is not contained in the proposed second amended complaint. (Dkt.
43; see also Dkt. 37 at 3 (informing Plaintiff that an amended pleading supersedes the
original pleading and that any claims contained in an initial complaint, but not in an
amended complaint, are deemed waived).)
In the Complaint in the consolidated case, No. 1:16-cv-00478-EJL, Plaintiff
asserts that he was accused of and punished for using disrespectful language in two other
grievances, again while he was housed at the Ada County Jail:


“The decision I am grieving is: not to allow me to review my medical file.
Really? You people won’t even let inmates to review their medical files?
You guys got some mental issues. Time for a new sheriff: This one runs a
sadistic camp.”



“You might want to train that mentally handicapped Deputy Brooks and the
moron who wrote the inmate handbook. That doesn’t trump the
constitution.”

(Dkt. 3, in No. 1:16-cv-00478-EJL, at 4-5.) Plaintiff’s grievances were rejected. Plaintiff
was also charged with a disciplinary violation, found guilty of the violation, and punished
with a loss of privileges for five days. Plaintiffs asserts claims of violations of the rights
to free speech, to file grievances, and to be free from retaliation for exercising free speech
rights.
3.

Discussion of Plaintiff’s Claims in Both the Lead and Consolidated Cases
The standards governing First Amendment claims of incarcerated persons were

outlined by the United States Supreme Court in Turner v. Safley, 482 U.S. 78 (1987). The
legal standards applicable to First Amendment claims involving prison grievances have
ORDER - 7

been further sharpened and refined in Bradley v. Hall, 64 F.3d 1276 (9th Cir. 1995);
Shaw v. Murphy, 532 U.S. 223 (2001); Hargis v. Foster, 312 F.3d 404 (9th Cir. 2002);
and Brodheim v. Cry, 584 F.3d 1262 (2009).
Based upon these cases of precedent, various district courts have forged new
ground in addressing claims based on disrespectful language in prison grievances. These
decisions are not binding on this Court, but they are cases of interest for the Court to
consider in its survey of the evolving law in this area. See, e.g., Richey v. Dahne, No.
C12-5060, 2016 WL 7325218 (W.D. Wash. Dec. 15, 2016) (“In this case, [plaintiff] has
met his burden to show a violation of his constitutional right. [Defendant] took the
adverse action of ordering [plaintiff] to rewrite his grievance because of inappropriate
language in the grievance.”), appeal filed Jan. 13, 2017; Calloway v. California Dep’t of
Corr. & Rehab., No. 116-cv-1305, 2017 WL 220310 (E.D. Cal. Jan. 18, 2017) (“Because
there is no right to any particular grievance process, it is impossible for due process to
have been violated by ignoring or failing to properly process grievances. Prisoners do,
however, retain a First Amendment right to petition the government through the prison
grievance process. Therefore, interference with the grievance process may, in certain
circumstances, implicate the First Amendment.”) (internal citations omitted).
A.

Free Speech

The context of an inmate’s exercise of free speech determines how much
protection is afforded the speech. In Turner v. Safley, the United States Supreme Court
examined the free speech issue in the context of prison officials prohibiting
correspondence between inmates residing at different state institutions. The Court
ORDER - 8

instructed the federal district courts to review four factors when a prison regulation or
practice impinges on a First Amendment right of a prisoner: (1) whether there is a
“rational connection between the prison regulation and the legitimate governmental
interest put forward to justify it”; (2) whether “there are alternative means of exercising
the right that remain open to prison inmates”; (3) what “impact accommodation of the
asserted constitutional right will have on guards and other inmates, and on the allocation
of prison resources generally”; and (4) whether “ready alternatives” at a “de minimis
cost” exist, which “may be evidence that the regulation is not reasonable, but is an
exaggerated response to prison concerns.” Turner, 482 U.S. at 89-93 (internal quotation
marks omitted).
When considering a prison rule or regulation under Turner, a court must review
both (1) the facial validity of the regulation under the four Turner factors and (2) whether
the regulation was unconstitutional as applied to the inmate by examining “whether
applying the regulation to [the] speech . . . was rationally related to the legitimate
penological interest asserted by the prison.” Hargis, 312 F.3d at 410.
Verbal expressions of free speech in prison are treated differently from written
expressions. In both Bradley and Brodheim, the Ninth Circuit drew an important
distinction between (1) the act of writing disrespectful words in a grievance directed to
prison officials, and (2) the legitimate interest a prison has in “prevent[ing] any open
expression of disrespect or any disrespectful communication between prisoner and guard
or between prisoner and prisoner.” Brodheim, 584 F.3d at 1273 (emphasis added) (citing

ORDER - 9

Bradley, 64 F.3d at 1281); see also Custodio v. Idaho State Bd. of Corr., No. 1:13-CV00332-BLW, 2016 WL 5661984, at *5 (D. Idaho Sept. 29, 2016) (unpublished).
Further, written expressions in documents other than prison grievances appear to
be treated differently than written expressions contained within grievances. Compare
Barrett v. Belleque, 2011 WL 802707 (D. Or. 2011) (unpublished), aff’d, 475 F. Appx.
653 (9th Cir. 2012) (unpublished), cert. denied, 133 S. Ct. 318 (2012),1 with Richey, 2016
WL 7325218 (unpublished).
1

On appeal in Barrett, the Ninth Circuit determined:
The district court properly granted summary judgment to the defendants
on Barrett's claim for damages because the defendants are entitled to qualified
immunity. See Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172
L.Ed.2d 565 (2009) (“The doctrine of qualified immunity protects government
officials ‘from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.
Ct. 2727, 73 L.Ed.2d 396 (1982))).
Procunier v. Martinez, 416 U.S. 396, 415–16, 94 S. Ct. 1800, 40 L.Ed.2d
224 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401,
109 S. Ct. 1874, 104 L.Ed.2d 459 (1989), established that prison officials cannot
censor outgoing inmate mail merely because it contains exaggerated complaints;
magnified grievances; expressions of inflammatory political, racial or religious
views; unwelcome criticism of policies, rules or officials; or disrespectful
comments. Procunier, however, did not address whether inmates can be
disciplined for posting letters directing hostile and abusive language to and at
prison staff, which the defendants here reasonably believed Barrett to have done.
Rules prohibiting inmates from directing disrespectful comments toward staff
indisputably further legitimate penological interests in security, order and
rehabilitation. See Bradley v. Hall, 64 F.3d 1276, 1280 (9th Cir.1995), abrogated
on other grounds by Shaw v. Murphy, 532 U.S. 223, 121 S. Ct. 1475, 149
L.Ed.2d 420 (2001).
Procunier also did not address whether an inmate can be disciplined for
posting letters that endorse a white supremacist prison gang that prison officials
have identified as a security threat group (STG). ODOC had identified Barrett as
a member of the Aryan Soldiers, a white supremacist STG. The defendants could
have reasonably believed that disciplining Barrett for posting letters expressing
support and endorsement for his STG furthered an important penological interest
in rehabilitation. The defendants are therefore entitled to qualified immunity.

ORDER - 10

Because the free speech analysis of language uttered by inmates necessarily
depends on its context—written or unwritten, grievance or non-grievance—the Court
concludes that Plaintiff does not have a freestanding free speech claim that is separate
from its context. Therefore, Plaintiff may not proceed on such a claim, but, as explained
below, he may proceed with his First Amendment claims within the context of (1) his
right to petition the government for redress, and (2) his right to be free from retaliation.
B.

Right to Petition for Redress

Disrespectful language in an inmate’s grievance is protected activity under the
First Amendment’s “right to meaningful access to the courts” and the “broader right to
petition the government for a redress of his grievances.” Bradley, 64 F.3d at 1281-82.
“The government to which the First Amendment guarantees a right of redress of
grievances includes the prison authorities, as it includes other administrative arms and
units of government.” Id. at 1279. In Bradley, the Ninth Circuit Court of Appeals held
that accessing the courts was such an important right that prison officials should not be

Because we hold that the defendants did not violate a right that was
clearly established at the time of their conduct, we do not address whether their
conduct violated the First Amendment. See Pearson, 555 U.S. at 232, 236, 129 S.
Ct. 808 (describing the two prongs of the qualified immunity analysis and
holding that courts have discretion in deciding which of the two prongs should be
addressed first).
475 F. App’x 653, 655-56 (9th Cir. 2012).

ORDER - 11

permitted to punish prisoners for using “hostile, sexual, abusive, or threatening” language
in a written grievance. Id. at 1279, 1282.2
In Shaw v. Murphy, 532 U.S. 223 (2001), the United States Supreme Court
disapproved of the Ninth Circuit’s balancing test used to give more weight to the
importance of a grievance than to the importance of the penological interest set forth by
the prison in Bradley. The Shaw opinion clarified that “the Turner test, by its terms,
simply does not accommodate valuations of content. On the contrary, the Turner factors
concern only the relationship between the asserted penological interests and the prison
regulation.” Id. at 230.
Shaw instructed that a reviewing court’s focus must be content neutral. Prison
officials are to remain the primary arbiters of the problems that arise in prison
management. If courts were permitted to enhance constitutional protection based on their
assessments of the particular communications, courts would be in a position to assume a
greater role in decisions affecting prison administration. See Turner, 482 U.S. at 89
(“Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny
analysis would seriously hamper their ability to anticipate security problems and to adopt
innovative solutions to the intractable problems of prison administration.”).
Notwithstanding the Supreme Court’s emphasis on deference to prison officials as
articulated in Turner and Shaw, it seems the Ninth Circuit has not yet found a legitimate

2

In a somewhat similar case, Tarabochia v. Hill, Case No. 03-35600, 140 F. App’x 753, 754 (9th
Cir. Oct. 27, 2010) (unpublished), the Ninth Circuit opined that the right to be free from punishment for
writing disrespectful language in a grievance is clearly established.

ORDER - 12

penological interest that satisfies the Turner test in disrespectful-grievance cases except
that “prison officials may properly discipline inmates for criminal threats contained in
written grievances.” Bradley, 64 F.3d at 1281-82. Stated another way, inmates may be
disciplined if language in a written grievance posed “a substantial threat to security and
discipline” at the prison.3 Brodheim, 584 F.3d at 273.
Based on the foregoing, Plaintiff may proceed on his claims that Defendants
violated his First Amendment right to petition the government for redress.
C.

Access to Courts

The Court concludes that the Complaint does not plausibly assert a separate claim
for violation of the right to access the courts, which can be construed as a slightly
different cause of action from the right to petition for redress. Plaintiff has not plausibly
alleged that he was blocked from accessing the courts on the actual claims that were the
subject of his grievances—e.g., the throwing away of his outgoing mail, his housing
classification, and the refusal of jail authorities to let him review his medical records—as
a result of Defendants’ failure to accept and process his grievances. An access to courts
claim asserting that a prisoner lost his right to bring the underlying claims because of the
grievance rejection does not appear ripe without having a court dismiss such claims on
the basis of failure to exhaust administrative remedies. Rather, here, the access to courts
3

See, e.g., Helm v. Hughes, 2011 WL 476461 (W.D. Wash. Jan. 6, 2011) (finding that language of
“abuse is violence; violence begets violence” was a threat that met the Turner standard). Cf. In re
Parmelee, 63 P.3d 800 (Wash. Ct. App. 2003) (rejecting Bradley as nonbinding precedent on a state court
and finding it appropriate under Turner and the First Amendment for prison officials to punish inmate for
writing threats in grievances: “Fire this asshole before someone reacts to his attempt to provoke violently,
correct this door problem immediately,” and, “Fire this asshole before someone reacts to his attem[pt] to
provoke violently.”)

ORDER - 13

claim is one and same as the right-to-petition claim, but for ease of reference, the Court
will refer to it simply as a claim asserted pursuant to the First Amendment right to
petition for redress.
The Court notes that the Eastern District of California courts have dismissed First
Amendment disrespectful-grievance claims by merging a claim of the right to petition the
government (in jail or prison) with the broader claim of access to courts (in court) that
requires an actual injury.4 See, e.g, Calloway, 2017 WL 220310, at *4; Galzinksi v.
Beard, No. 1:14-cv-01158, 2014 WL 5781136, at *1 (E.D. Cal. Nov. 5, 2014). Such an
analysis seems unnecessary in this case under the facts alleged in the pleadings. It
appears that Plaintiff classifies his claim as one involving the right to petition for redress,
rather than the right to access the courts.
D.

Retaliation

Inmates have a right to be free from retaliation by prison officials for exercising a
constitutional right, such as free speech or the right to petition for redress. Jones v.
Williams, (9th Cir. 2015). A retaliation claim consists of five elements: “(1) An assertion

4

An inmate has a First and Fourteenth Amendment right to access the courts, Bounds v. Smith, 430
U.S. 817 (1977), and may recover for denial of that right in a civil rights lawsuit if he or she can
demonstrate that an actual injury occurred as a result of the denial, Lewis v. Casey, 518 U.S. 343, 352-53
(1996). The right to access the courts is a limited one, aimed at ensuring that prisoners may initiate
legitimate petitions challenging their criminal convictions and complaints alleging civil rights violations.
Id. at 354. To allege an injury that affected the right to access the courts, a plaintiff must (1) adequately
describe the claim that was hindered and (2) allege facts that show it was actually hindered. Christopher
v. Harbury, 536 U.S. 403, 415 (2002). “Hindered claims” can be “forward-looking” claims (those for
which an impediment must be removed to permit the plaintiff to proceed with a still-viable claim) or
“backward-looking” claims (those now impossible to file, such as a claim barred by a statute of
limitations). Id. at 413-14.

ORDER - 14

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.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).
As to the first element, “the mere threat of harm can be an adverse action,
regardless of whether it is carried out[.]” Brodheim, 584 F.3d at 1270 (internal quotation
marks and citations omitted). In Brodheim, the Court of Appeals found that a written
warning to the inmate to be careful about what he wrote in grievances created a material
dispute of fact sufficient to go to a jury. Id. In Richey v. Dahne, a federal district court
determined that a prison official’s requirement that an inmate rewrite his disrespectful
grievance was enough to constitute an adverse action. Disagreeing with the magistrate
court’s report and recommendation in that case, the district court in that matter concluded
that it was clearly established law that requiring inmates to rewrite disrespectful
grievances was an adverse action that violated the First Amendment. That decision is
now on appeal, and the Court mentions it not as binding precedent, but as an opinion that
has emanated from the Ninth Circuit’s strict approach to protected language contained in
jail or prison grievances. See Richey v. Dahne, 2016 WL 7325218 (W.D. Wash. Dec. 15,
2016), appeal filed, Richey v. Dahne, No. 17-35032 (9th Cir. Jan. 13, 2017).
With respect to the second element—causation—there must be evidence, either
direct or circumstantial, to establish a link between the exercise of a constitutional right
and the alleged retaliatory action. Pratt v. Rowland, 65 F.3d 802, 806–07 (9th Cir. 1995).

ORDER - 15

The Brodheim court clarified that, if a plaintiff puts forth evidence that, taken in a light
most favorable to him, established that the motivating factor for the punishment was
either the “‘disrespectful language’ or the grievance as a whole,” then the causation factor
of a retaliation claim will be met for purposes of defeating a defendant’s summary
judgment motion. 584 F.3d at 1271.
Although “timing can be properly considered as circumstantial evidence of
retaliatory intent,” generally there must be something more than timing alone to support
an inference of retaliatory intent. Pratt, 65 F.3d at 808. Retaliation is not established
simply by showing adverse activity by defendant after protected speech; plaintiff must
show a nexus between the two. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th
Cir. 2000) (stating that a retaliation claim cannot rest on the logical fallacy of post hoc,
ergo propter hoc, i.e., “after this, therefore because of this”).
As to the third element, it is clearly established that “[t]he First Amendment
guarantees a prisoner a right to seek redress of grievances from prison authorities as well
as a right of meaningful access to the courts.” Bradley, 64 F.3d at 1279; see also Rhodes,
408 F.3d at 567 (observing that, “[w]ithout those bedrock constitutional guarantees,
inmates would be left with no viable mechanism to remedy prison injustices”). Thus,
although there is no freestanding constitutional right to access to a jail or grievance
process, Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), if the jail or prison chooses
to provide such a process, inmates have a constitutional right to use it.

ORDER - 16

Regarding the fourth element of a retaliation claim, the chilling-of-speech inquiry
is evaluated using an objective standard. “[A] plaintiff does not have to show that ‘his
speech was actually inhibited or suppressed,’ but rather than the adverse action at issue
‘would chill or silence a person of ordinary firmness from future First Amendment
activities.’” Brodheim, 584 F.3d at 1271 (quoting Rhodes, 408 F.3d at 568-69).
As to the fifth element, a plaintiff must show that the challenged conduct “did not
reasonably advance a legitimate correctional goal.” Id. (internal quotation marks
omitted). In making this determination, the court must consider the four factors set forth
in Turner v. Safley (as listed above). Id. at 1272.
A claim of retaliation is not successful merely because the inmate was punished
for using disrespectful language in a grievance; there must also be a showing of an actual
retaliatory motive.5 For example, in Tarabochia v. Hill, the district court adopted the

5

See the concurring opinion of Judge Bea in Brodheim:
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
grievance 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 judgment 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.

584 F.3d at 1274 (Bea, J., concurring).

ORDER - 17

magistrate court’s reasoning in rejecting the plaintiff’s retaliation claim where officers
thought they were acting within the law, even though ultimately they were not:
An examination of the record reveals that defendants did not
retaliate against plaintiff for his use of the grievance system,
but punished him under the mistaken assumption that Bradley
was no longer valid legal precedent. Aside from the
disciplinary action taken the day after he filed his grievance,
plaintiff fails to direct the court to any evidence tending to
show that prison officials retaliated against him solely
because he chose to utilize the grievance process. Given these
facts, plaintiff has not met his burden of proof with respect to
the retaliation claim.
Tarabochia v. Hill, No. 3:01-cv-00920, Dkt. 34, 37 (D. Or. May 13, 2002 & June 25,
2002) (available on PACER), aff’d, No. 03-35600, 140 F. Appx. 753 (9th Cir. Oct. 27,
2010) (unpublished).
Liberally construed, Plaintiff’s allegations state plausible retaliation claims against
Defendants.
CONCLUSION
Plaintiff may proceed as outlined above. This Order does not guarantee that any of
Plaintiff’s claims will be successful; it merely finds that some are colorable, meaning that
the claims will not be summarily dismissed at this stage. This Order is not intended to be
a final or a comprehensive analysis of Plaintiff’s claims, but it is only a determination
that some of Plaintiff’s claims are plausible and should proceed to the next stage of
litigation.

ORDER - 18

Defendants may file a motion for dismissal on any basis other than failure to state
a claim.6 Because prisoner filings must be afforded a liberal construction, because prison
officials often possess the evidence prisoners need to support their claims, and because
many defenses are supported by incarceration records, an early motion for summary
judgment—rather than a motion to dismiss—is often a more appropriate vehicle for
asserting defenses such as qualified immunity. In such instances, the parties may be
required to exchange limited information and documents directly relevant to the defense
at issue.
ORDER
IT IS ORDERED:
1.

Defendant Fox’s Motion to Stay this case pending the outcome of
Plaintiff’s interlocutory appeal (Dkt. 33) is MOOT, as that appeal has been
dismissed. (See Dkt. 50.)

2.

Plaintiff’s request for permission to resubmit his First Amended Complaint,
construed as a motion for leave to file a Second Amended Complaint (Dkt.
42) is GRANTED. The Second Amended Complaint is found at Dkt. 43.

3.

To maintain clarity in the record, the Clerk of Court shall add to the docket,
in the lead case, the separate Complaint in the consolidated case (Dkt. 3 in
No. 1:16-cv-00478-EJL), noting the date it was originally submitted to the
Court.

6

The standards for a motion to dismiss for failure to state a claim under Rule 12(b)(6) are the same
standards that the Court has used to screen the Complaint under §§ 1915 and 1915A.

ORDER - 19

4.

Plaintiff may proceed on his retaliation and right-to-petition claims in both
(1) the Second Amended Complaint against Defendant Fox, in Case No.
1:16-cv-00143-EJL, and (2) the Complaint against Defendants Brooks,
Nettleton, Hansen, Culbertson, and Jensen, in Case No. 1:16-cv-00478EJL.

5.

Within 10 days after entry of this Order, counsel for Defendant Fox shall
inform the Court whether counsel in the lead case will also be representing,
and whether counsel will waive service on behalf of, Defendants Brooks,
Nettleton, Hansen, Culbertson, and Jensen—the Defendants in the
consolidated case.

6.

If Defendants Brooks, Nettleton, Hansen, Culbertson, and Jensen choose to
waive service of process, their answer or pre-answer motion shall be due in
accordance with Rule 12(a)(1)(A)(ii). If Defendants Brooks, Nettleton,
Hansen, Culbertson, and Jensen do not waive service, or if counsel for
Defendant Fox lacks authority to do so on their behalf, counsel shall so
notify the Court via the ECF system, with a copy mailed to Plaintiff. In that
event, Plaintiff shall have an additional 60 days to submit the physical
service addresses of those Defendants to the Court so that the Court may
effect service upon them, or the claims against them will be dismissed
without prejudice.

ORDER - 20

7.

Plaintiff’s Request for Sanctions, Motion to Strike, and Seal Discovery
from the Record (Dkt. 46) is MOOT, as the substantive motion to which it
pertains (Dkt. 41) has already been denied as moot. (See Dkt. 48.)

8.

Plaintiff’s Motion for Additional Interrogatories/Motion to Strike from the
Record Discovery Submitted by Defendant (Dkt. 51) is DENIED. The
Court has not yet entered a scheduling order governing discovery in this
case, and Defendant Fox has not submitted to the Court any discovery
responses. Rather, discovery is exchanged between parties, only, unless
properly attached as an exhibit to a motion or pleading.

9.

Plaintiff’s objections to the Order of Reassignment and Consolidation,
construed as motions to sever (Dkt. 54 in Case No. 1:16-cv-00143-EJL &
Dkt. 8 in Case No. 1:16-cv-00478-EJL) are DENIED for the reasons stated
in the Order of Reassignment and Consolidation. (See Dkt. 53.)

DATED: March 7, 2017
_________________________
Edward J. Lodge
United States District Judge

ORDER - 21