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Idaho Shaving Rule Infraction Against Prisoner with Brain Problem Vacated

The plaintiff, who suffers from a neurological disorder causing jerking and
shaking, declined to shave because doing so with a razor blade endangered
his safety (he had already cut himself trying to do so), and they wouldn't
let him use an electric razor. He told an officer that his actions and
statements could come up in pending litigation. He was convicted of a
disciplinary action for coercion, which resulted in his being denied parole.

A regulation prohibiting "involvement in any disorderly conduct by coercing
or attempting to coerce any official action" is not unconstitutional on its
face. However, the plaintiff's argument that his conversation was not
coercive should not have been dismissed. At 410: "We assign no heightened
value to Hargis's speech." The court applies the Turner test. "To the
extent the dissent argues that Shaw [v. Murphy] prohibits this sort of
examination, we disagree. The Supreme Court specifically remanded Shaw"
for that purpose. The record shows that the plaintiff's statements, "taken
in the full context of his conversation with the guard," may not have been
an attempt to coerce. A jury could reasonably conclude that he wanted to
comply with the shaving rule, had tried to shave, and was offering a way to
do so by asking for access to an electric razor, which he had been allowed
to use in the past. The plaintiff depicted a patient and courteous effort
to persuade the officer to back off or get a supervisor; the officer's
version leaves out the details but does not contradict the plaintiff.
Documentation from prison staff said, e.g., "The staff here are not in fear
of your court action and I welcome inquiries from the court." These facts
raise a material question whether the defendants' action had a rational
connection with the legitimate security concerns of the defendants and
could support a finding of "exaggerated response." (The amended opinion
changes the statement that a jury could conclude that the plaintiff did not
attempt to coerce the officer into not enforcing the rule to "a jury could
reasonably conclude that the prison officials acted unreasonably in
characterizing Hargis' statements as an attempt to coerce Beauchamp into
not enforcing the shaving rule." 312 F.3d at 406.)

The plaintiff voluntarily requested dismissal of his non-First Amendment
claims. The court initially held that the district court should not have
made the dismissal with prejudice under Rule 41(a)(2), Fed.R.Civ.P., which
calls for dismissal without prejudice. The amended opinion changes this
conclusion to hold that, absent a characterization by the plaintiff of the
dismissal he sought, the district court did not abuse its discretion. See:
Hargis v. Foster, 312 F.3d 404 (9th Cir. 2002), amending and superseding
282 F.3d 1154 (9th Cir. 2001).

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Related legal case

Hargis v. Foster

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 FOR THE NINTH CIRCUIT



312 F.3d 404; 2002 U.S. App.



December 3, 2002, Filed



PRIOR HISTORY: [**1] Hargis v. Foster, 282 F.3d 1154, 2002 U.S. App. (9th Cir. Idaho 2002).



DISPOSITION: Prior opinion amended.



COUNSEL: Christopher Hargis, Plaintiff - Appellant, Pro se, Orofino, ID.



For Christopher Hargis, Plaintiff - Appellant: Gregory Mann Miller, Seattle, WA.



For Phil Foster, Beachamp, Lahaei, D. W. Mcecheron, D.H.O. Crawford, Defendants - Appellees: Stephanie A. Altig, OFFICE OF ATTORNEY GENERAL, Boise, ID.



JUDGES: Before: Betty Binns Fletcher, M. Margaret McKeown, and Richard C. Tallman, Circuit Judges.



OPINION:

[*406] ORDER AMENDING OPINION AND DISSENT

The opinion of this court filed March 7, 2002, slip op. at 3727, is amended as follows:

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





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.

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





Hargis requested voluntary dismissal of his retaliation and Eighth Amendment claims pursuant to Fed. R. Civ. P. 41(a)(2) without specifying that he was requesting dismissal without prejudice. The district court granted the motion and dismissed with prejudice. Hargis objects to the dismissal with prejudice. We review a district court's determination of the terms and conditions of dismissal under Rule 41(a)(2) for an abuse of discretion. Koch v. Hankins, 8 F.3d 650, 652 (9th Cir. 1993).



Rule 41(a)(2) provides: [**2]





Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper [*407] . . . . Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.





Rule 41 vests the district court with discretion to dismiss an action at the plaintiff's instance "upon such terms and conditions as the court deems proper." That broad grant of discretion does not contain a preference for one kind of dismissal or another. In a separate clause, Rule 41 provides that orders that fail to specify whether dismissal is with or without prejudice are to be interpreted as dismissals without prejudice. In this limited sense, the rule has a "default position," but this default position applies to the interpretation of a silent order, not to the district court's discretionary decision in the first instance. See Semtek Int'l v. Lockheed Martin Corp., 531 U.S. 497, 503, 149 L. Ed. 2d 32, 121 S. Ct. 1021 (2001) (construing similar text in Rule 41(b) as "nothing more than a default rule for deter-mining the import [**3] of a dismissal"); 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2367 (2d ed. 1994) ("If the plaintiff either moves for dismissal without prejudice or fails to specify whether the request is for dismissal with or without prejudice, the matter is left to the discretion of the court. The court may grant dismissal without prejudice or may require that the dismissal be with prejudice. If the court's order is silent on this point, the dismissal is without prejudice . . . .").



In the instant case, Hargis requested a dismissal without specifying whether he was requesting dismissal with or without prejudice, implicitly accepting either determination by the district court. That court could have remained silent on this point, in which case we would find the dismissal to have been without prejudice. Instead, it made its determination. Because Hargis's motion did not preclude this determination, we find that the district court did not abuse its discretion in doing so.

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





Because Hargis has raised a triable issue of fact as to whether the coercion regulation [**4] was constitutional as applied to him, we reverse the district court's summary judgment on the First Amendment free speech claim and remand for further proceedings. The district court's dismissal of the retaliation and Eighth Amendment claims is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

The dissent is amended as follows:





On page 3746-47 of the slip opinion, delete the para-graph beginning "our opinion also errs . . ."



On page 3747 of the slip opinion, modify the final remaining paragraph to read: "I agree that it was too late to raise an ADA claim on appeal and that the district court acted within its discretion in dismissing Hargis's retaliation and Eighth Amendment claims. Otherwise, I respectfully dissent."

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 [**5] forthwith.