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PLN Editor Wins Retaliation Suit

Over the years PLN readers have read the periodic reports we have published about the legal struggle against double calling at the Washington State Reformatory (WSR) in Monroe, Washington. Not all of the struggle took place in the courtroom. When the state first announced plans to doublecell us in 1988 there was a lot of debate amongst prisoners over whether or not to seek enforcement of our consent decree, mandating single celling. Like most issues, there were two sides. One side, which I was on, sought enforcement of the single celling provisions of the consent decree. We saw it as necessary to hold the line on that issue to prevent a return to the overcrowding, with attendant ills, of the past. (This is in the context that at the time the DOC wanted to double cell us there was a surplus of state cells and some 2,000 cells were being rented out to the federal government and other states.) The other side, advocated by the administration's lackeys and collaborators, not surprisingly, pushed for total capitulation and not litigating the matter. At the time it was duly noted that most of the advocates of double celling in fact had single cells while the rest of us were double celled.

We successfully won enforcement of the consent decree in the district court in 1989. At that time the DOC was faced with having to single cell WSR. To try to pressure the prisoners into waiving our court victory they started a rumor campaign claiming they would close the prison as being "uneconomical" and transfer everyone to Walla Walla, away from their family and friends, most of whom reside in the Puget Sound area.

Faced with our court victory the DOC tried one last desperate tactic. After trying to panic the prisoner population notorious collaborators then tried to hold a vote on whether or not to pursue the litigation or to sell it out. On March 20, 1989, a meeting of the Lifer's club was held where this was to be debated.

The collaborators spoke first advocating a sell out to double celling. Some others spoke against double celling, as did I. I pointed out that if the state did close the prison that was in and of itself a major victory. The prospect of 400 prison guards in the unemployment line is a good one. I gave my spiel and after a standing ovation we voted. It was unanimous. Everyone voted against a sell out. The rats were shamed into silence and slunk out.

The next day I was slammed into administrative segregation. The "reasons" given at the time by the prison administration were that I was allegedly "developing an international revolutionary network that advocates armed resistance to the US government," the claim that I was supposedly willing to share information on access to US military bases overseas with "anti US groups", and that Ed and I were working on publishing the Red Dragon (a more politicized version of PLN).

My parents had come to see me from Florida and because I was in segregation I was denied contact visits and a trailer visit with them. I only receive visits from my family once or maybe twice a year. About ten days later I was transferred to Walla Walla as being a "security risk." Prior to leaving the Reformatory, then intelligence officer (now captain) Jim Evans told me that if I would tell them "what Ed Mead is up to" Ed would be transferred out of state, I would remain here and get contact and trailer visits with my parents, etc.

After months of fruitless attempts to administratively resolve the matter I filed suit in US District Court in Seattle over the retaliatory nature of my segregation and transfer. The district court eventually dismissed my suit claiming I had not shown any evidence of retaliation. I appealed the dismissal.

On February 26, 1993, the court of appeals for the Ninth Circuit issued an unpublished memorandum order reversing dismissal of my retaliation claim. The court held that I had shown sufficient evidence of retaliation by noting that two other opponents of double celling, Steve Plant, the president of the Indian Club, and Albert Owen, vice president of the Black Prisoners Caucus, had been put in segregation or transferred within 36 hours of my own lock up. I also presented evidence that within hours of my talk at the lifers club, Lt. Evans was interrogating the president of the lifers and another prisoner about my speech and told them he held me responsible for swaying the vote. This circumstantial evidence is enough to require a trial to determine if the administration's pretexts are a cover for retaliation.

The court also said I was entitled to discovery. Before and during the litigation the DOC came up with ten different reasons as to why they put me in segregation and transferred me, retaliation for advocating compliance with the consent decree was not one of them. I sought discovery of all documents that they referred to and used in each of their pretexts as well as the materials that supported my theory of the case. The attorney general's office refused to supply any of the documents. I filed three motions to compel production of the discovery materials and the district court refused to order production of any of the materials.

The appeals court reversal is on rather narrow grounds. Essentially it reversed for trial for factual findings rather than on legal issues. In my appeal I had sought a ruling on what legal standard should be used in the Ninth Circuit in prison retaliation cases, this wasn't ruled on. I don't know if the state will appeal the ruling to the Supreme Court or not.

The 1989 transfer to Walla Walla began my three year tour of the Washington gulag. I managed to see all three Intensive Management Units in the state, both close custody prisons, and had the DOC try to transfer me out of state three times. All this without a history of institutional violence, attempts at physical liberation, drug use, etc., and a relatively "clean" disciplinary record (the infractions I have been found "guilty" of include major felonies like filing a grievance, having communist literature in my cell, getting a letter tape from Ed, etc.). So four years after being repressed for seeking enforcement of a court order it looks like I might get my day in court. We'll see how that turns out. Stay tuned.

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Related legal case

Wright v. Rebeiro

PAUL A. WRIGHT, Plaintiff-Appellant, v. VERONICA REBEIRO, et al., Defendants-Appellees.

No. 91-36087


1993 U.S. App. LEXIS 4323

February 4, 1993, ** Submitted, Seattle, Washington

** The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4.
February 26, 1993, Filed


SUBSEQUENT HISTORY: Reported as Table Case at 988 F.2d 127, 1993 U.S. App. LEXIS 10691.

Amended and Petition for Rehearing Denied, April 13, 1993, Reported at 1993 U.S. App. LEXIS 8212.

PRIOR HISTORY: Appeal from the United States District Court for the Western District of Washington. DC No. CV-90-396-R. Barbara J. Rothstein, District Judge, Presiding


LexisNexis(R) Headnotes



Washington state prisoner Paul Wright appeals the district court's grant of summary judgment on his § 1983 claim. Wright claims on appeal that he was placed in administrative segregation and transferred to another prison in retaliation for the exercise of his rights of access to the courts and free speech, and in violation of his due process and equal protection rights.


Wright participated in a class action suit to prevent the Washington State Reformatory (WSR) from double-bunking prisoners. A consent decree was reached in which the state agreed to single-bunk only, and it was implemented in approximately 1986. In 1988, WSR began [*2] to renovate the prison, and planned to double-bunk the inmates during the renovation. On March 20, 1989, Wright spoke out at an approved inmate club meeting against double-bunking and in favor of enforcing the consent decree by court order. He apparently persuaded numerous inmates to join him in the enforcement of the consent decree. The next day, the prison officials put Wright in administrative segregation, and on March 30, 1989, Wright was transferred to the Washington State Penitentiary at Walla Walla (WSP).


I. Wright's retaliation claim

We review the district court's grant of summary judgment de novo. Perez v. Curcio, 841 F.2d 255, 257 (9th Cir. 1988). Summary judgment is only appropriate if there is no genuine issue of material fact and the district court correctly applied the substantive law. Id. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Allen v. Scribner, 812 F.2d 426, 430 (9th Cir.) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2513 (1986)), [*3] amended on other grounds, 828 F.2d 1445 (9th Cir. 1987). The judge's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue of material fact for trial. Allen, 812 F.2d at 430.
To survive a motion for summary judgment on a retaliation claim, a prisoner must do more than simply allege retaliation due to his exercise of constitutional rights. He must also allege that the prison's retaliatory action did not advance a legitimate penological goal, or was not narrowly tailored to achieve that goal. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985).

Wright introduced circumstantial evidence of the defendants' retaliatory motive. He presented an affidavit from prisoner Robert Stratton which states that on the morning of March 21, defendant Evans summoned Knoll and another prisoner to Evans' office where he questioned the prisoners about Wright's role in the meeting the previous day. Evans told these prisoners that he held Wright responsible for swaying the inmates' vote on the double-bunking issue. [CR 118, Ex. 30]. Wright also contends [*4] that another advocate of enforcing the consent decree, Steve Plant, was transferred to another institution at the same time, and that prisoner Albert Owens was placed in segregation on March 21 for possessing a leaflet advocating enforcement of the consent decree. These contentions are supported by affidavits. [CR 118, Ex. 24 (affidavit of Robert McKinney); Ex. 27 (affidavit of Edward Mead); Ex. 20 (affidavit of James Chaney Bey)]. Furthermore, the close proximity between Wright's protected activity and defendants' action may lead to an inference of retaliatory motive. See Smith v. Maschner, 899 F.2d 940, 949 (10th Cir. 1990) ("Smith has supported his allegations of retaliation by the only means available to him--circumstantial evidence. . . ); McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979) (chronology of events provides support for inference of retaliation).

Wright also established that there was a genuine issue of material fact whether or not the prison officials' actions were for a legitimate penological goal, because Wright introduced evidence sufficient for the trier of fact to conclude that the penological goals [*5] articulated by the prison officials were a pretext for retaliation. Prison officials may not defeat a retaliation claim on summary judgment simply by articulating a justification for the retaliatory action, when there is a genuine issue of material fact whether the action was taken purely in retaliation for the exercise of a constitutional right. n1

n1 At least two other circuits have taken this approach in the summary adjudication of prisoner retaliation claims. In Madewell v. Roberts, 909 F.2d 1203, 1206 (8th Cir. 1990), the court held that summary judgment on a retaliation claim was inappropriate where there were conflicting affidavits regarding the reasons for the defendants' actions. Similarly, in Smith v. Maschner, 899 F.2d 940, 948-49 (10th Cir. 1990), the court held that a jury could reasonably find retaliation where there was conflicting evidence, including affidavits, introduced at summary judgment.

The district court thus erred in granting [*6] the motion for summary judgment.

The district court also erroneously limited Wright's discovery regarding his retaliation claim. Wright sought to discover various documents related to the prison officials' articulated reasons for Wright's segregation and transfer. The magistrate judge ruled that these issues were irrelevant to the issue of retaliatory motive and denied further discovery. The district judge held that regardless of whether plaintiff's requests were relevant, "it appears that plaintiff had most of this information already in his possession" through documents attached to the motion for summary judgment and those provided directly to plaintiff at the time of his transfer.
Documents regarding the prison officials' articulated reasons for Wright's placement in administrative segregation and transfer to another prison are relevant to Wright's retaliation claim. The district court's holding that Wright has "most" of the requested documents indicates that he does not have all requested documents. Wright should be allowed complete discovery of any information not privileged, or to which defendants have a valid objection, related to the articulated reasons for Wright's [*7] segregation and transfer.

II. Wright's due process claims

Wright's due process rights were not violated by his transfer to another prison. Prisoners do not have a constitutionally protected right to be housed in a particular prison. Rizzo, 778 F.2d at 530.
Wright's due process rights were also not violated by his placement in administrative segregation. Prisoners do not have a due process right to remain in the general prison population, absent a state-created liberty interest. Hewitt v. Helms, 459 U.S. 460, 468-72 (1983); Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986). Even if Wright correctly contends that a prison policy provided that prisoners would not be placed in administrative segregation unless they posed a threat to prison security, n2 Wright received what process was due after being confined to administrative segregation. Hewitt, 460 U.S. at 477. Wright concedes that the prison officials followed the appropriate procedures for his placement in segregation.

n2 Wright has not designated the prison policy as part of the record on appeal for this court to review.

Wright's due process claims were properly dismissed.

III. Wright's prior restraint claim

Wright bases this claim on one of the proffered reasons for placing him in administrative segregation: Wright's efforts to publish the "Red Dragon" newsletter, which allegedly advocated armed overthrow of the United States.

"A prison inmate retains those first amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. However, the associational rights of prisoners 'may be curtailed whenever the institution's officials, in the exercise of their informed discretion, reasonably conclude that such associations . . . possess the likelihood of disruption of prison order or stability . . .'" Rizzo, 778 F.2d at 532 (quotations and citations omitted). Wright has not established that if indeed this was the reason he was placed in administrative segregation, it was not within the prison officials' informed discretion to reasonably conclude that the publication and circulation of the Red Dragon within the prison possessed the likelihood of disruption of prison order or stability.

IV. Wright's equal protection claim

Wright claims his right to equal [*9] protection was violated because his collaborator in publishing the Red Dragon, Edward Head, was not placed in administrative segregation as was Wright. Because Wright provides no factual support for this contention, and has not alleged discrimination based on a suspect class, he fails to state an equal protection claim.

V. Dismissal of defendants Riveland, Lehman, Kincheloe, & Rebeiro
Wright contends the district court erred in dismissing prison defendants Chase Riveland, Secretary of the Department of Corrections, Joseph Lehman, Assistant Secretary of the Department of Corrections, and Larry Kincheloe, Director of the Division of Prisons. Wright does not contest the dismissal of Ms. Rebeiro.

Wright does not allege that these individuals personally participated in the decision to place Wright in administrative segregation or to transfer him to WSP. These defendants may not be held liable solely on the basis of supervisory responsibility. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) ("A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them."). Although Wright contends [*10] that his attorney wrote letters to these defendants questioning the propriety of Wright's transfer, Wright did not introduce evidence that these defendants had actual knowledge of any retaliatory nature of the transfer.

Wright's claim that these defendants failed to adequately train personnel also fails because Wright offers no evidence that training policies or personnel regulations were not implemented or that the training was inadequate.
Defendants Riveland, Lehman, Kincheloe amd Rebeiro were thus properly dismissed.