NOT FOR PUBLICATION FILED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to be “administratively withdrawn,” which meant that it would not be processed.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).

2 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

3 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.

5 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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