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Ninth Circuit Reverses Dismissal of Nevada Prisoner’s First Amendment Retaliation Claims

The Ninth Circuit Court of Appeals resurrected the majority of a prisoner’s lawsuit raising First Amendment retaliation claims after the case had been dismissed by the district court. The suit then settled following remand.

Raymond Watison, serving a sentence in the Nevada State Prison, sued prison officials under 42 U.S.C. § 1983 alleging federal constitutional violations and eleven state-law claims. After dismissing the federal claims, the district court declined to exercise supplemental jurisdiction over the state-law claims.

On appeal, the Ninth Circuit first considered whether sexual harassment of a male prisoner by a male guard could constitute an Eighth Amendment violation. Watison had alleged in his complaint that while he was on the toilet, prison guard Sean LaGier began to search his cell and rubbed his thigh against Watison’s. Comparing this allegation with a female prisoner being harassed by a male guard, the appellate court held that the humiliation allegedly suffered by Watison did not rise to a level of psychological pain sufficiently severe to constitute cruel and unusual punishment. One circuit judge dissented from this finding.

Turning to Watison’s First Amendment retaliation claims, the Court of Appeals cited circuit precedent which held, on the one hand, that the filing of a grievance is protected conduct, citing Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005) [PLN, Feb. 2005, p.36], and on the other hand that the mere threat of harm can constitute adverse action sufficient to warrant judicial intervention, citing Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009) [PLN, Feb. 2011, p.29].

Three of Watison’s claims alleged retaliation for the filing of grievances. In one, a false disciplinary charge was filed against him and he was placed in administrative segregation; in the second, the guard about whom Watison complained threatened him with physical violence; and in the third, the guard refused to give him breakfast. The Ninth Circuit held that such acts could have a chilling effect on “a person of ordinary firmness,” and thus the district court had improperly dismissed those claims.

Watison further alleged that a guard had pointed a gun at him and, after subsequently filing a grievance, the guard harassed him. The Court of Appeals found that this harassment-retaliation claim failed because, among other things, it did not allege a chilling effect. The Court nonetheless remanded the claim with instructions that the district court grant Watison leave to amend, pursuant to Fed.R.Civ.P. 15(a), to correct its deficiencies.

Finally, the Ninth Circuit instructed the district court, on remand, to again consider whether to exercise supplemental jurisdiction over Watison’s state-law claims. See: Watison v. Carter, 668 F.3d 1108 (9th Cir. 2012).

The case settled following remand in September 2012, with the Nevada Department of Corrections agreeing to pay $700 to resolve Watison’s lawsuit, without making any admission of liability and with the parties bearing their own costs. Watison represented himself pro se in the suit but had appointed counsel on appeal.

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Related legal case

Watison v. Carter