Christopher Hargis v. Phil Foster, Beauchamp, Lahaei, D.W. McEcheron and D. H.O. Crawford

312 F.3d 404 Christopher HARGIS, Plaintiff-Appellant, v. Phil FOSTER, Beauchamp, Lahaei, D.W. McEcheron, and D. H.O. Crawford, Defendants-Appellees. No. 00-35466. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 8, 2001. Filed March 7, 2002. Amended Opinion Filed December 3, 2002. COPYRIGHT MATERIAL OMITTED Gregory Mann Miller, Seattle, WA, for the plaintiff-appellant. Stephanie A. Altig, Boise, ID, for the defendants-appellees. Appeal from the United States District Court for the District of Idaho; Mikel H. Williams, Magistrate Judge, Presiding. D.C. No. CV-98-00510-MHW. Before: B. FLETCHER, McKEOWN, and TALLMAN, Circuit Judges. ORDER 1 The opinion of this court filed March 7, 2002, slip op. at 3727 [ 282 F.3d 1154 ], is amended as follows: 2 On page 3737 [at 1159] of the slip opinion, delete the first sentence of the first full paragraph, and substitute in its stead: 3 Based on this evidence, a jury could reasonably conclude that the prison officials acted unreasonably in characterizing Hargis's statements as an attempt to coerce Beauchamp into not enforcing the shaving rule. 4 On page 3738 [at 1159] delete the entirety of the text of III. after the…

dissenting:

A recalcitrant prisoner seeking an exception to a prison regulation threatens a guard to avoid compliance. The warden affirms a disciplinary violation after a prison hearing finds the words to be coercive. The Court now holds that summary judgment in favor of the defendants dismissing his civil rights suit was improper because a jury must consider the context in which inmate Hargis delivered his threatening words to correctional officer Beauchamp. The problem with the Court’s opinion is that it virtually ignores the most important aspect of the context in which the speech was delivered — in a prison. And it is the prison setting that dictates the outcome in this case.

Individuals sentenced to prison simply do not enjoy the same liberties as ordinary citizens. Obviously, their ability to travel freely is practically negated. They can be locked up, ordered about, told when to eat, when to exercise, when to shave, when to shower, and when to sleep. They also may be deprived of their right to vote. See Richardson v. Ramirez, 418 U.S. 24 , 94 S.Ct. 2655 , 41 L.Ed.2d 551 (1974). It should therefore surprise no one that prisoners do not enjoy the same First Amendment rights…

ORDER

The opinion of this court filed March 7, 2002, slip op. at 3727 [ 282 F.3d 1154 ], is amended as follows:

On page 3737 [at 1159] of the slip opinion, delete the first sentence of the first full paragraph, and substitute in its stead:

On page 3738 [at 1159] delete the entirety of the text of III. after the heading. Replace it with the following:

Rule 41(a)(2) provides:

On page 3740 [at 1160] delete the text of IV following the heading (Conclusion). Replace it with the following:

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

The dissent is amended as follows:

With these amendments a majority of the panel has voted to deny rehearing. The full court has been advised of these amendments and has voted to deny the petition for rehearing en banc.

■ The petition for rehearing and the petition for rehearing en banc are denied. No further petition for rehearing en banc will be entertained. The Clerk is directed to file and republish the majority opinion and the dissent as amended.

The mandate shall issue forthwith.

*408 OPINION

Christopher Hargis, an Idaho prisoner who suffers from a neurological disorder causing jerking and shaking, brings this action, pursuant to 42…