Richard Blaisdell v. C. Frappiea , 729 F.3d 1237 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD H. BLAISDELL, No. 10-16845
Plaintiff-Appellant,
D.C. No.
v. 2:08-cv-01462-JAT
C. FRAPPIEA,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted
April 16, 2013—San Francisco, California
Filed September 10, 2013
Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain,
and N. Randy Smith, Circuit Judges.
Opinion by Judge O’Scannlain
2 BLAISDELL V. FRAPPIEA
SUMMARY*
Prisoner Civil Rights
The panel affirmed the district court’s summary judgment
and held that an inmate did not engage in constitutionally
protected activity when he served a prison official with a
summons and complaint on another inmate’s behalf.
Plaintiff alleged that a prison official retaliated against
him by issuing him a disciplinary report after he attempted to
serve her with a federal summons and complaint on behalf of
another inmate. The panel first held that the district court did
not err by determining that plaintiff waived his claim that his
prior litigation activity against the prison triggered retaliation
given his acknowledgment, in his own motion for summary
judgment, that the disciplinary report was not issued because
of his other litigation activities.
The panel held that the access-to-court doctrine did not
provide plaintiff with constitutional protection. The panel
further held that because of the general incompatibility
between prison and free association, and because there was
no evidence of expressive association, the First Amendment
did not protect plaintiff’s attempted service of process on a
prison official.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BLAISDELL V. FRAPPIEA 3
COUNSEL
Dawn Sestito, O’Melveny & Myers LLP, Los Angeles, CA,
argued the cause and filed the briefs for the plaintiff-
appellant. Mica Doctoroff, UCLA School of Law Ninth
Circuit Clinic, Los Angeles, CA, also argued the cause for the
plaintiff-appellant. With them on the briefs was Katharine S.
Mercer, O’Melveny & Myers LLP, Los Angeles, CA.
Nicholas D. Acedo, Struck Wieneke & Love, P.L.C.,
Chandler, Arizona, argued the cause and filed a supplemental
brief for the defendant-appellee. With him on the brief was
Daniel P. Struck, Struck Wieneke & Love, P.L.C, Chandler,
Arizona. Jaleh Najafi, Jones, Skelton & Hochuli, P.L.C,
Phoenix, Arizona, filed the original brief for the defendant-
appellant. With him on the brief were Eileen Dennis
GilBride, Jones, Skelton & Hochuli, P.L.C., Phoenix,
Arizona, and Daniel P. Struck, Jones, Skelton & Hochuli,
P.L.C., Phoenix, Arizona.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether an inmate engaged in
constitutionally protected activity when he served a prison
official with a summons and complaint on another inmate’s
behalf.
4 BLAISDELL V. FRAPPIEA
I
A
The State of Hawaii contracts with the Corrections
Corporation of America (“CCA”) to house some of its
prisoners within the Saguaro Correctional Center, a privately
operated prison in Eloy, Arizona.1 Richard Blaisdell is one of
those inmates. On April 23, 2008, Blaisdell visited Christina
Frappiea—the prison’s Classification Supervisor—to ask her
to notarize a document for a new lawsuit he planned to file
against the prison.2 This was not Blaisdell’s first attempt at
litigation. He had filed at least three lawsuits against the
prison and its officers since 2007. Frappiea notarized the
document.
As soon as Frappiea had finished, Blaisdell announced
that she had been “served” and handed her a summons and
complaint in a federal civil Racketeer Influenced and Corrupt
Organizations Act (“RICO”) suit prepared by another
prisoner: Anthony Gouveia. Blaisdell had agreed to serve
process as a favor to Gouveia and was not a party to his
lawsuit. The suit against Frappiea concerned her apparent
unwillingness to notarize a contract for Gouveia which
1
Because Blaisdell’s claim regarding retaliation was not conclusively
resolved until summary judgment, see infra Part I.B., we “draw all
reasonable inferences supported by the evidence in favor of [Blaisdell as]
the non-moving party.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002).
2
The classification supervisor’s job is to make recommendations about
inmate placement so that prisoners are “assigned to the appropriate job,
housing and rehabilitative programs.” The record is silent about whether
notarizing court documents was part of Frappiea’s official duties.
BLAISDELL V. FRAPPIEA 5
pertained to a lawsuit he had already filed in Mississippi
federal district court. After looking at the document,
Frappiea reportedly said: “Oh. Well, you can’t serve that.
You’re a state prisoner.” Blaisdell claims he replied by
stating: “[T]his is not a state suit and I have every legal right
in the world to serve this to you. I am over 18, and I’m not a
party to the suit. And it’s not breaking any laws or any rules
or anything.”
Following this exchange of words, Frappiea prepared a
disciplinary report charging Blaisdell with Conspiracy,
Failure to Follow Rules, and “Violation of Federal, State or
Local Laws.” Under the prison rules inmates are not
permitted to possess another inmate’s property, including his
legal paperwork, without permission. The “Conspiracy” was
Blaisdell’s agreement to possess Gouveia’s summons and
complaint. As for the laws transgressed, Frappiea’s
disciplinary report references Arizona statutes that spell out
the requirements to act as a process server. Frappiea later
characterized Blaisdell’s legal violation as a failure to comply
with the screening provisions of the Prison Litigation Reform
Act (“PLRA”) before attempting service. See 28 U.S.C.
§ 1915A.3 A CCA hearing officer found Blaisdell guilty on
all three counts and sentenced him to sixty days of
administrative segregation.
B
Proceeding pro se, Blaisdell initiated the instant litigation
in Arizona Superior Court. The case was removed to federal
3
Frappiea has no formal legal education and acknowledged that her
characterization of Blaisdell’s legal violation was a “good faith,” although
potentially inaccurate, interpretation of the PLRA.
6 BLAISDELL V. FRAPPIEA
district court where Blaisdell subsequently filed an amended
pro se complaint under 42 U.S.C. § 1983 containing four
counts. Count One claimed that his discipline in connection
with the events of April 23 had been unconstitutional
retaliation. Counts Two, Three, and Four asserted violations
of the Due Process Clause, Arizona state law, and the federal
Freedom of Information Act. He sought $10,000 in
compensatory and punitive damages.
Pursuant to the PLRA, 42 U.S.C. § 1997e(c), the district
court sua sponte screened the complaint, dismissing Counts
Two, Three, and Four. During its screening, the district court
perceived two distinct assertions within Count One. First, the
court identified an allegation of retaliation by Frappiea for
Blaisdell’s attempt to serve Gouveia’s lawsuit. Second, the
court identified a possible assertion that Frappiea had
prepared the disciplinary charge “to get even” with Blaisdell
for his own prior lawsuits against CCA and its officers. The
court’s screening order, while expressing the view that
Blaisdell’s service of process was not an actionable basis for
a retaliation claim, did not definitively screen that allegation.
Instead, the order simply directed Frappiea to file an answer
as to Count One.
Following discovery, both sides moved for summary
judgment.4 Frappiea argued in her motion that (1) Blaisdell’s
“actions as a process server [did] not constitute protected
conduct” under the Constitution and (2) there was no causal
“nexus between the disciplinary report and [Blaisdell’s]
litigation activity.” The district court agreed that Blaisdell’s
service of process was not constitutionally protected. As for
Blaisdell’s own litigation activity, the court observed that, in
4
Blaisdell’s cross motion for summary judgment was denied.
BLAISDELL V. FRAPPIEA 7
responding to Frappiea’s summary judgment briefing,
Blaisdell had disclaimed a claim for retaliation on that basis.
The court concluded that “[f]or this reason alone,” any such
theory of retaliation necessarily failed.
Blaisdell timely appealed from the order granting
summary judgment to Frappiea and received court-appointed
counsel.
II
Blaisdell first argues that the district court erred in
determining that he waived the claim that his prior litigation
activity against the prison triggered retaliation.
Courts in this circuit have an obligation to give a liberal
construction to the filings of pro se litigants, especially when
they are civil rights claims by inmates. See Thomas v.
Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010); Bretz v.
Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc).
This rule relieves pro se litigants from the strict application
of procedural rules and demands that courts not hold missing
or inaccurate legal terminology or muddled draftsmanship
against them. See, e.g., Agyeman v. I.N.S., 296 F.3d 871, 877
(9th Cir. 2002) (“Albeit inartfully, Aygeman raised pro se his
due process claims . . . . [notwithstanding that] he did not use
the specific phrase ‘due process violation’. . . .’”).
In this case, Blaisdell wrote in his summary judgment
briefing that “[t]he issue in this case is not whether Frappiea
wrote a false D.R. [disciplinary report] because of plaintiff’s
multiple lawsuits, it is because plaintiff legally served
Frappiea with a federal summons and complaint naming her
as a defendant in a Mississippi lawsuit.” (emphasis in
8 BLAISDELL V. FRAPPIEA
original). Through counsel, Blaisdell now argues that our
decision in Bretz and the rule of liberal construction compel
us to ignore his statement.
In Bretz, we construed a pro se claim “drafted in terms of
§ 1983” as arising instead under section 1985—a related
civil-rights provision. 773 F.2d at 1027 n.1. Blaisdell is not
asking us to identify which legal terminology describes his
cause of action; instead, he is asking us to take up on appeal
a claim which he clearly told the district court he was not
bringing. We decline to do so. See Zixiang Li v. Kerry, 710
F.3d 995, 1000 n.4 (9th Cir. 2013) (“[A] party waives an
argument by failing to make it before the district court . . . .”)
(quoting G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d
534, 538 (7th Cir. 2012) (alterations and omission in
original)).
Without resort to Orwellian “Newspeak,” liberal
construction cannot turn Blaisdell’s explanation about what
his “case is not” into a description about what his case is. In
part, we credit his disavowal because it conforms with how
he described his claim at other times during the litigation. He
used a form complaint designed to aid prisoners proceeding
pro se. When the form complaint prompted him to state the
right violated, Blaisdell wrote: “Retaliation against the
plaintiff for exercising his right to serve Federal Summons
and Complaint on Frappiea.”5 Then, in his own motion for
summary judgment Blaisdell argued that “Frappiea wrote a
disciplinary report on plaintiff as a result of [p]laintiff’s
attempt to serve [d]efendant with a valid lawful federal
5
It is also salient that a claim based on Blaisdell’s own litigation would
never have been recognized were it not for the district court’s liberal
construction during screening.
BLAISDELL V. FRAPPIEA 9
summons and complaint” and stated that he was “entitled to
perform the only act he did and that was to serve Frappiea.”
Blaisdell’s “acknowledg[ment] that the disciplinary report
was not issued because of his other litigation activities”
compels the conclusion that Frappiea is entitled to summary
judgment on the retaliation claim to the extent it is based on
prior lawsuits.
III
Blaisdell’s remaining claim for retaliation therefore
hinges on whether he engaged in “protected conduct” when
he served process on another inmate’s behalf. Rhodes v.
Robinson, 408 F.3d 559, 567 (9th Cir. 2005).
Resolving this question requires us to wade into doctrinal
waters not often explored in detail by courts. Although
commonly referred to as claims for “First Amendment
retaliation,” id., such actions need not be tethered to the
speech or associational freedoms secured by that Bill of
Rights provision.6 Instead—as an aspect of the
unconstitutional conditions doctrine—a claim for retaliation
can be based upon the theory that the government imposed a
burden on the plaintiff, more generally, “because he
exercise[d] a constitutional right.” Regan v. Taxation With
Representation of Washington, 461 U.S. 540, 545 (1983); see
also Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 674
(1996) (situating several cases alleging retaliation for
6
The First Amendment provides that “Congress shall make no law . . . .
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances.” U.S. Const. amend. I.
10 BLAISDELL V. FRAPPIEA
protected speech amidst the “modern unconstitutional
conditions doctrine” (internal quotation marks omitted)).7
Blaisdell directs us to two possible sources of constitutional
protection for his effort to serve process for his fellow inmate.
A
Blaisdell first points to a “prisoner’s right of meaningful
access to the courts.” Bradley v. Hall, 64 F.3d 1276, 1279
(9th Cir. 1995), overruled on other grounds by Shaw v.
Murphy, 532 U.S. 223, 230 n.2 (2001). In the context of
prisoners’ rights, the Supreme Court chiefly has located the
access-to-courts doctrine in the Constitution’s Due Process
and Equal Protection Clauses. See, e.g., Lewis v. Casey, 518
U.S. 343, 367 (1996) (Thomas, J., concurring) (observing that
over the decades the Court has characterized the right “as a
‘consequence’ of due process, as an ‘aspect’ of equal
protection, or as an ‘equal protection guarantee’” (internal
citations omitted)). At other times, the Court has described
the doctrine as part of every citizen’s First Amendment right
to petition the government. See Turner v. Safley, 482 U.S.
78, 84 (1987) (“[P]risoners retain the constitutional right to
petition the government for the redress of grievances . . . .”);
Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508,
7
Perhaps not any constitutional right will suffice, however. According
to one scholar, the unconstitutional conditions doctrine only safeguards
“those rights that depend on some sort of exercise of autonomous choice
by the rightholder, such as individual rights to speech, exercise of religion
or privacy, corporate rights to do interstate business or invoke federal
diversity jurisdiction, or state rights to self-government.” Kathleen M.
Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1426
(1989).
BLAISDELL V. FRAPPIEA 11
510 (1972) (“The right of access to the courts is indeed but
one aspect of the right of petition.”).8
Blaisdell argues that two access-to-courts principles cover
his conduct: (1) a right to pursue “litigation-related activities”
and (2) the right of legal assistance between inmates.
1
Prisoners have the “right[] to litigate without active
interference,” Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th
Cir. 2011), a guarantee that exists so prisoners have a “viable
mechanism to remedy prison injustices.” Rhodes v.
Robinson, 408 F.3d 559, 567 (9th Cir. 2005). The heart of the
anti-interference right is “the presentation of constitutional,
civil rights and habeas corpus claims,” Snyder v. Nolen, 380
F.3d 279, 291 (7th Cir. 2004).9 But, by virtue of their
“broader right to petition the government for a redress of
[their] grievances under the First Amendment,” Bradley, 64
F.3d at 1279, prisoners must also have opportunities to pursue
certain other types of civil litigation. See, e.g., Snyder, 380
F.3d at 291; Straub v. Monge, 815 F.2d 1467, 1470 (11th Cir.
1987); Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir.
1986).
8
The exercise of rights while in prison, though, is cabined. See Turner,
482 U.S. at 89 (“[W]hen a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.”).
9
The access-to-courts right originated with direct appeals from
convictions and habeas corpus and then was extended “only slightly, to
‘civil rights actions’—i.e., actions under 42 U.S.C. § 1983 to vindicate
‘basic constitutional rights.’” Lewis, 518 U.S. at 354.
12 BLAISDELL V. FRAPPIEA
The exact nature of Gouveia’s lawsuit is unknown.
According to Blaisdell, it was “was a personal suit and had
nothing to do with the Saguaro Prison.” We will look past
this statement, however, since the complaint which Blaisdell
sought to serve did concern a perceived injustice at Saguaro:
Frappiea’s alleged refusal to notarize a contract for Gouveia
in connection with his underlying civil action. Therefore, we
assume for the sake of argument that Gouveia’s claim against
Frappiea is the type of civil suit covered by the First
Amendment’s right to petition.
Yet, the Supreme Court has cautioned that despite some
past imprecision in its articulation of the protection, access-
to-courts rights do not exist in an “abstract, freestanding”
form. Lewis, 518 U.S. at 351. Instead, they are tethered to
principles of Article III standing. See id. (remarking that
“actual injury is apparent on the face of almost all the
opinions in the 35-year line of access-to-courts cases”).10 For
there to be a judicially cognizable injury, “the party before
[the court] must seek a remedy for a personal and tangible
harm.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013)
(emphasis added); see also New York v. Ferber, 458 U.S. 747,
767 (1982) (describing “the personal nature of constitutional
rights” as a “cardinal principle[] of our constitutional order”).
Thus, while Gouveia and Blaisdell each have an access-to-
courts right to file litigation from prison, they cannot
10
This reflects the fact that in our system of separated powers “it is not
the role of courts, but that of the political branches, to shape the
institutions of government in such fashion as to comply with the laws and
the Constitution.” Lewis, 518 U.S. at 349.
BLAISDELL V. FRAPPIEA 13
vicariously assert that protection on each other’s behalf.11
And because Blaisdell has no share in Gouveia’s “right to be
free from interference,” this aspect of the access-to-courts
doctrine cannot support his action. Silva, 658 F.3d at 1103.
2
Blaisdell next claims that Frappiea’s disciplinary report
was issued to retaliate against him for providing affirmative
legal assistance to his fellow inmate. See Johnson v. Avery,
393 U.S. 483, 490 (1969). “We have traditionally
differentiated between two types of access-to-court claims:
those involving prisoners’ right to affirmative assistance and
those involving prisoners’ rights to litigate without active
interference.” Silva, 658 F.3d at 1102. A close inspection of
Johnson and its progeny illustrates that, as with the access
doctrine already explored, Blaisdell misconceives the true
nature of the right to assistance.
Constitutional doctrine requires that inmates receive
affirmative assistance in the “preparation and filing” of
certain legal pleadings. Silva, 658 F.3d at 1102 (quoting
Bounds v. Smith, 430 U.S. 817, 828 (1977)). However, the
Constitution does not specify the form such assistance must
take. In Johnson, the Tennessee prison system had a
regulation barring inmates from advising or assisting each
11
Because of loose language in access-to-courts precedents before Lewis
this issue had divided the lower courts. Compare Adams v. James, 784
F.2d 1077, 1080 (11th Cir. 1986) (“In a non-class-action context a
prisoner has no standing to litigate another prisoner’s claim of denial of
access to the courts.”), with Rhodes v. Robinson, 612 F.2d 766, 769 (3d
Cir. 1979) (reading prior Supreme Court caselaw on access to courts as
“disregard[ing] the rule against Jus tertii, the vicarious assertion of
rights”).
14 BLAISDELL V. FRAPPIEA
other about legal matters. 393 U.S. at 485. The Court
invalidated that rule—not because prisoners have a
constitutional right to “the assistance of fellow inmates”—but
because Tennessee failed to provide any other mechanism for
helping inmates who were incapable of preparing legal papers
themselves. See id. (explaining that “unless and until the
State provides some reasonable alternative to assist inmates
in the preparation of petitions for post-conviction relief, it
may not validly enforce [the] regulation”); Smith v.
Maschner, 899 F.2d 940, 950 (10th Cir. 1990) (“Prison
inmates do not possess the right to a particular prisoner’s help
in preparing their legal materials, so long as prison officials
make other assistance available.”); Kunzelman v. Thompson,
799 F.2d 1172, 1179 (7th Cir. 1986) (holding that the “right
to receive assistance from other prisoners is conditioned upon
a showing that the inmates in question did not have adequate
access to the court without the help of an inmate writ-
writer”).
Confronted with arguments akin to Blaisdell’s in the years
since Johnson, the Supreme Court has made the contingent
nature of the protection for legal assistance explicit. See
Shaw, 532 U.S. at 231 n.3 (“Under our right-of-access
precedents, inmates have a right to receive legal advice from
other inmates only when it is a necessary means for ensuring
a reasonably adequate opportunity to present claimed
violations of fundamental constitutional rights to the courts.”
(quoting Lewis, 518 U.S. at 350–51 (internal quotation marks
omitted)). CCA’s Corporate and Facilities Policy provides
for a law library and for contract attorneys or paralegals to
help inmates prepare motions to proceed in forma pauperis,
motions for appointment of counsel, habeas petitions, and
§ 1983 suits. Blaisdell does not challenge either the
sufficiency or the enforcement of that access-to-courts policy.
BLAISDELL V. FRAPPIEA 15
He also acknowledges that the federal rules furnished
Gouveia with potential ways to effectuate service.12
Moreover, it is far from clear that “the right to provide legal
advice follows from a right to receive legal advice,” Shaw,
531 U.S. at 231 n.3, a crucial leap were Blaisdell to have
standing to claim the disciplinary charge impinged on the
exercise of his rights. Cf. Lewis, 518 U.S. at 351–52.
For all of these reasons, Blaisdell’s decision to serve
process on behalf of Gouveia cannot be grounded on the
access-to-court doctrine.
B
As an alternative vehicle for constitutional protection,
Blaisdell invokes the freedom of “association for the
advancement of beliefs and ideas.” NAACP v. Button, 371
U.S. 415, 430 (1963).13
12
Rule 4 provides that at a “plaintiff’s request, the court may order that
service be made by a United States marshal or deputy marshal or by a
person specially appointed by the court. The court must so order if the
plaintiff is authorized to proceed in forma pauperis under 28 U.S.C.
§ 1915.” Fed. R. Civ. P. 4(c). See generally Laurence v. A.T. Wall, 551
F.3d 92, 93–94 (1st Cir. 2008). The fact that Gouveia paid the filing fee
in lieu of seeking in forma pauperis designation does not automatically
give him an access-to-courts claim. At the very least, there would need
to be evidence that the court refused his request for service as well as
evidence that the prison furnished no alternative mechanism for inmate
service. Blaisdell has offered no such evidence.
13
Not expressly enumerated, this freedom is a consequence of the First
Amendment’s textual guarantees. See Roberts v. United States Jaycees,
468 U.S. 609, 622 (1984) (“An individual’s freedom to speak, to worship,
and to petition the government for the redress of grievances could not be
vigorously protected from interference by the State unless a correlative
16 BLAISDELL V. FRAPPIEA
Blaisdell cites Rizzo v. Dawson, 778 F.2d 527 (9th Cir.
1985) as support for the proposition that he has a viable
associational claim. In Rizzo, we held that “a ‘jailhouse
lawyer’ assisting other inmates with habeas petitions and
other federal actions” was engaging in expressive association
under the First Amendment. 778 F.2d at 529. Rizzo
provided his legal assistance during a prison-vocational
course; thus, we held that he could viably allege that his
forced transfer out of the course had been in retaliation for his
exercise of the constitutional right to associate. Blaisdell’s
own evidence, however, shows that he does not function as a
jailhouse lawyer, or anything approaching it. In his statement
of facts in support of summary judgment, he wrote: “All of
the points on accusing me of helping other inmates at Saguaro
are fictitious and false because I have not helped any other
[inmates] with their lawsuits at Saguaro.”14 Blaisdell further
represented having “had nothing to do with the drafting or
filing of Gouveia’s lawsuit.” Because Blaisdell does not
engage in the kind of activity which Rizzo held was protected,
that case is not controlling here.
In effect, Blaisdell encourages us to extend Rizzo and to
hold that service of process, divorced from substantive legal
assistance, qualifies as First Amendment association. Two
freedom to engage in group effort toward those ends were not also
guaranteed.”).
14
The portion of the record he cited in his appellate brief, ostensibly as
evidence that he offers legal assistance, does not put this representation at
issue. There, he discusses a disciplinary action which “accused [him] of
attempting to encourage Washington inmates to file lawsuits against CCA
for violation of their civil rights.” Blaisdell testified that while he might
have offhandedly stated “Well, sue them,” he could not “even remember
the incident.”
BLAISDELL V. FRAPPIEA 17
doctrinal developments since 1985 convince us that it does
not.
First, the Court has clarified that associational rights only
extend to groups engaged in expressive activities. See Boy
Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000); Villegas v.
City of Gilroy, 484 F.3d 1136, 1141 (9th Cir. 2007).15 In
Dale, the Boy Scouts qualified as expressive because its
“general mission” was inculcating members with a set of
values “both expressly and by example.” 530 U.S. at 649–50.
Similarly, fraternal and civic associations usually can invoke
the freedom of association. See, e.g., Roberts v. United States
Jaycees, 468 U.S. 609, 612 (1984) (national men’s
organization devoted to “genuine Americanism and civil
interest” was protected).
Unable to cite to these conventional modes of association,
Blaisdell simply asserts that civil rights litigation is “a form
of political expression.” Button, 371 U.S. at 429. In Button,
the NAACP had associational rights because it worked “to
vindicate the legal rights of members of the American Negro
community, [and] at the same time and perhaps more
importantly, ma[de] possible the distinctive contribution of a
minority group to the ideas and beliefs of our society.” 371
U.S. at 431. Such litigation was deemed political expression
and thus protected “political association.” Id. When the
Court held that the ACLU’s litigation also was protected, it
did so based on the ACLU’s “extensive educational and
lobbying activities” and involvement in public-interest cases
ranging from “political dissent, juvenile rights, prisoners’
15
In Villegas, we cabined a 1984 precedent that had declared that the
Hells Angels’ motorcycle club had associational rights without analyzing
this doctrinal requirement. Id. at 1141 n. 10.
18 BLAISDELL V. FRAPPIEA
rights, military law, amnesty, and privacy.” In re Primus,
436 U.S. 412, 427–28 (1978).
While inmates engaged in collective civil rights litigation
conceivably could claim to be expressively associating,16 the
same cannot be said for the one-time service of process at
issue here. Service of process has no inherently expressive
dimension. Cf. Villegas, 484 F.3d at 1141 (“act of wearing
. . . vests adorned with a common insignia simply does not
amount to the sort of expressive conduct protected by the
First Amendment”). Instead, it merely is a procedural
mechanism for announcing that legal proceedings have
begun.
A second reason not to extend Rizzo is that its holding is
difficult to square with the Supreme Court’s subsequent
teachings on prisoners’ rights. See Pratt v. Rowland, 65 F.3d
802, 807 (9th Cir. 1995) (cautiously applying Rizzo in light of
later admonitions). As a general matter, the Court has
instructed that “freedom of association is among the rights
least compatible with incarceration.” Overton v. Bazzetta,
539 U.S. 126, 131 (2003). More specifically, the Court
overruled a decision of ours which—relying on Rizzo—held
that an inmate law clerk had heightened First Amendment
protection because he was a purveyor of legal assistance. See
Murphy v. Shaw 195 F.3d 1121, 1124–25 (9th Cir. 1999),
16
As a three-judge panel, we respect Rizzo as binding despite some
dissatisfaction with its reasoning. The Tenth Circuit authority that Rizzo
regarded as persuasive, strikes us as wrongly decided. See Owens v. Rush,
654 F.2d 1370, 1379 (10th Cir.1981) (concluding that by helping his wife
with her Title VII suit and “accompan[ying] [her] to her attorney’s office”
a husband came “within the activities held to be protected by the First
Amendment in NAACP v. Button”). Helping one’s spouse with a single
lawsuit does not transform the couple into an expressive association.
BLAISDELL V. FRAPPIEA 19
overruled by Shaw, 532 U.S. at 227, 230–32. Blaisdell
correctly notes that Shaw fell short of holding that prisoners
have no First Amendment rights when assisting each other
with legal matters. Shaw concerned a more discrete issue: it
held that deferential scrutiny still applies when courts assess
the validity of prison regulations affecting inmate legal
assistance. See 532 U.S. at 228. Yet, not only did the Court
express skepticism about the right we declared in Rizzo,17 it
reminded us that: (1) “the constitutional rights that prisoners
possess are more limited in scope than the constitutional
rights held by individuals in society at large” and (2) “courts
are particularly ‘ill equipped’ to deal with” issues which arise
behind bars. Shaw, 532 U.S. at 229; see also id. at 228(“Traditionally federal courts did not intervene in the internal
affairs of prisons and instead ‘adopted a broad hands-off
attitude toward problems of prison administration.’”).
Because of questions about Rizzo’s vitality, the general
incompatibility between prison and free association, and
because there is no evidence of expressive association, we
conclude that the First Amendment does not protect
Blaisdell’s attempted service of process on Frappiea.
17
The skepticism is apparent both in the unanimous majority and the
concurrence. See id. at 231 (explaining in dicta that “even if we were to
consider giving special protection to particular kinds of speech based upon
content, we would not do so for speech that includes legal advice”), id.(remarking that “inmate law clerks are sometimes a menace to prison
discipline”) (internal quotation marks omitted); id. at 232 (Ginsburg, J.,
concurring) (“I agree with the Court that the Ninth Circuit erred in holding
that the First Amendment secures to prisoners a freestanding right to
provide legal assistance to other inmates.”).
20 BLAISDELL V. FRAPPIEA
IV
As any alleged retaliation against Blaisdell was not rooted
in activity safeguarded by the Constitution, the district court
properly awarded summary judgment in favor of Frappiea.
AFFIRMED.