Thomas Richey v. D. Dahne , 624 F. App'x 525 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 08 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
THOMAS W.S. RICHEY, No. 12-36045
Plaintiff - Appellant, D.C. No. 3:12-cv-05060-BHS
v.
MEMORANDUM*
D. DAHNE,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted October 16, 2015
Seattle, Washington
Before: W. FLETCHER and GOULD, Circuit Judges and EZRA,** District Judge.
The facts of this case are fully set out in the jointly-filed opinion addressing
Dahne’s motion to revoke Richey’s in forma pauperis status on appeal. We review
de novo whether the district court properly granted a motion to dismiss under Rule
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
12(b)(6) of the Federal Rules of Civil Procedure, accepting all factual allegations
in the complaint as true. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015)
(citations omitted).
“[W]e 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)).1 The prison has a legitimate penological interest in
encouraging “respect by inmates toward staff and other inmates, and rehabilitation
of inmates through insistence on their use of socially acceptable ways of solving
their problems.” Bradley, 64 F.3d at 1280. But “the link between this important
purpose and the disrespect rules as applied to formal written grievances is weak.”
Id. at 1281. As we have twice explained, applying the Turner v. Safley, 482 U.S.
78 (1987), factors for assessing the constitutionality of a prison regulation, a prison
may not take or threaten adverse action against an inmate for using disrespectful
language in a grievance. Brodheim, 584 F.3d at 1272–73; Bradley, 64 F.3d at1279–81. Richey has stated a plausible claim that his rights were violated when
1
As Brodheim noted, while we no longer “balance[] the importance of the
prisoner’s infringed right against the importance of the penological interest served
by the [prison] rule,” Bradley’s holding remains good law. Id. at 1272 (alteration
omitted) (quoting Bradley, 64 F.3d at 1280–81).
2
the prison refused to process and investigate his grievance because it contained
“objectionable” language describing the prison guard as “extremely obese.”2
Dahne’s contrary arguments are unavailing. Dahne claims that Bradley is
distinguishable because inmates like Richey “have the opportunity to rewrite their
grievances” without offensive language. But Bradley rejected the prison’s
argument that “the disrespect rules do not hinder a prisoner from filing a grievance
or suit, but merely from using inappropriate language within the grievance itself.”
64 F.3d at 1279 (emphasis in original). Dahne also attempts to distinguish Bradley
by suggesting that unlike here, that case involved language “necessary to the
explanation or resolution of a grievance,” but not once did Bradley suggest that the
prisoner’s language was protected because it was “necessary.” Moreover, Bradley
recognized that prison rules governing an inmate’s language cannot create “a hazy
[line], leaving the aggrieved prisoner guessing whether he will be punished for
what he has said in his formal prison complaint.” 64 F.3d at 1281. A policy under
which prison officials have unfettered discretion to determine what information is
“necessary” to a grievance would suffer the same constitutional infirmities.
2
As we are reviewing only Richey’s complaint to determine whether it
states a claim for relief, we do not consider whether additional statements in
Richey’s grievance—which were not included in the complaint—are also protected
under Bradley.
3
In the alternative, Dahne seeks qualified immunity because his “actions and
decisions were based on his application of Department policy and his attempt to
have Richey comply with the grievance program’s requirements so that Richey’s
complaint could be addressed.” At the motion to dismiss stage, however, “it is the
defendant’s conduct as alleged in the complaint that is scrutinized for ‘objective
legal reasonableness,’” Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)) (emphasis in original), and
Richey’s complaint says nothing about whether the prison had any language
policy, what that policy was, and how consistently that policy was enforced.
Dahne is therefore not entitled to qualified immunity at this time.3
REVERSED AND REMANDED.
3
In this posture, we do not consider whether the law in our circuit is clearly
established that “disrespectful language in a prisoner’s grievance is itself protected
activity under the First Amendment.” Brodheim, 584 F.3d at 1271 (citing Bradley,
64 F.3d at 1281–82).
4