9th Circuit: Prisoner Need Not Succumb to Threats in Order to Prevail on First Amendment Retaliation Claim
California prisoner Michael Brodheim (a PLN contributing writer) brought suit pursuant to 42 U.S.C. § 1983 alleging that the prison appeals coordinator, warden, and chief deputy warden retaliated against him for exercising his First Amendment right to petition the government for redress of grievances.
Brodheim filed grievances which were routinely screened out by Appeals Coordinator Cry. After one particular screen-out, Brodheim submitted a “Request for Interview” to Cry, objecting to Cry’s rationale for rejecting his grievance. He used language that Cry later claimed was disrespectful. Cry returned the interview request form to Brodheim, affirming his rejection of Brodheim’s appeal and warning Brodheim to be careful what he wrote and/or requested when he communicated with the appeals coordinator in the future.
Feeling threatened by the explicit (albeit non-specific) warning, Brodheim filed a staff complaint against Cry, asking why he had been warned and what consequences would befall him should he fail to comply. In denying the complaint, the Warden indicated that it was Brodheim who was retaliating against Cry (by filing a complaint against him), not vice-versa.
Brodheim filed suit in federal court, seeking to enjoin the defendants from disciplining him, transferring him or otherwise retaliating against him for petitioning the government for redress of grievances. While the suit was pending, Cry wrote a memo to the Chief Deputy Warden requesting that Brodheim be transferred because of his continued “focus on litigation.”
Brodheim uncovered this “smoking gun,” by chance, in discovery. After the parties filed cross motions for summary judgment, the district court found that Brodheim’s First Amendment rights had not actually been chilled, that no adverse action had been taken against him, and that there was a legitimate penological purpose in warning a prisoner regarding his use of disrespectful language. The court granted summary judgment to the defendants.
On appeal, the Ninth Circuit reversed, holding that “[t]he power of a threat lies not in any negative actions eventually taken, but in the apprehension it creates in the recipient of the threat.” It further held that “disrespectful language in a prisoner’s grievance is itself protected activity under the First Amendment” and accordingly that Cry’s warning to Brodheim did not reasonably advance any legitimate penological interest. See: Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009). On remand Brodheim was allowed to supplement his complaint but not amend it. The case remains pending as this issue goes to press. See: Brodheim v. Cry, 2010 WL 3943558 (E.D. Cal. 2010).
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Related legal cases
Brodheim v. Cry
|2010 WL 3943558 (E.D. Cal. 2010)
Brodheim v. Cry
|584 F.3d 1262 (9th Cir. 2009)
|Court of Appeals