by Chuck Sharman

Few aspects of prison life are not subject to restriction by administrators. But when Washington Department of Corrections (DOC) officials extended their purview to the content of a prisoner’s literary journal submission, he filed suit. The U.S. District Court for the Eastern District of Washington dismissed his claim, applying the deferential standard to prison official’s conduct from Turner v. Safley, 482 U.S. 78 (1987). But the U.S. Court of Appeals for the Ninth Circuit reversed this dismissal.

In its ruling on August 26, 2026, the Court said the proper standard was instead found in Procunier v. Martinez, 416 U.S. 396 (1974), preventing prison officials from “refus[ing] to transmit” a prisoner’s “nonthreatening outgoing correspondence” based on its content.

While incarcerated at the DOC’s Airway Heights Correctional Center in 2022, Neil Grenning enrolled in the Writers in the Community course sponsored by Eastern Washington University (EWU). Prisoners were invited to submit their work to the program’s InRoads literary journal, but they were advised that submissions would be screened by the prison’s Community Partnership Program Coordinator, Ann Wise.

Because of a reference by the narrator to having sex with his wife, Grenning’s story was rejected by Wise, though she cited no policy it violated. The story was also never reviewed by the DOC Publications Review Committee. Grenning then mailed the story directly to EWU. But he also wrote prison superintendent James Key to object to Wise’s censorship and advise him that the story was on its way to EWU.

Key responded that Wise was justified by her obligation to “ensure nothing leaves the institution” that could cause “negative publicity.” He also threatened to bar Grenning from the program if he tried to bypass Wise again. Grenning filed a grievance over both the censorship and the threat, and a grievance coordinator he met with admitted that he could find no reason for prohibiting Grenning from sending such submissions through the mail. Meanwhile, Wise went to program leaders at EWU and asked them to reject Grenning’s submission.

Grenning then filed suit pro se in the district court under 42 U.S.C. § 1983, accusing prison officials of violating his First Amendment free-speech rights with the censorship of his work and retaliating against him for it with the threat to bar him from the program. He sought discovery of the policy governing submissions like his, plus Wise’s job description that put her in charge of approving them. Those requests were ignored. Nevertheless, the district court granted Defendants’ summary judgment motion, reasoning under Turner that any First Amendment violation was justified by the DOC’s penological interest in restricting prisoner access to sexually provocative material to promote rehabilitation—and even if it weren’t, that Key and Wise were entitled to qualified immunity (QI). Grenning timely appealed.

Ninth Circuit Reverses

Taking up the case then, the Ninth Circuit noted that Grenning was not arguing for a right to publish his work in the journal. Rather, he objected to officials’ censorship of the mail in which he sent it, based on nothing more than a subjective dislike of its content. Wise and Key argued under Turner that their penological interests trumped Grenning’s civil rights. But the Court said that was the wrong standard. What governed instead was Martinez, which “clearly established Grenning’s right not to have prison officials refuse to transmit his nonthreatening outgoing correspondence to an outside recipient because … they disapproved of its content or feared the public’s reaction to it.”

Even under that standard, the Court allowed, prison officials might still justify their censorship if they “could establish a sufficiently close fit between the restrictions and a concrete substantial or important interest in security, order, or rehabilitation.” But in rejecting Grenning’s submission, Wise offered no such justification. Rather, the Court said, “her decision turned on elastic, content-based ‘discretion[ary]’ judgments—precisely what was deemed unconstitutional in Martinez.” When Key then got involved and offered his belated justification for Wise’s actions, his “negative publicity” fears “mirror[ed] the logic of the rules invalidated in Martinez,” the Court said, rules “that worked ‘simply to eliminate unflattering or unwelcome’ perspectives, and ‘invited prison officials … to apply their own personal prejudices and opinions.’”

By its own language, Martinez applied a “less deferential” rule than Turner, the Court noted. Letting Defendants conflate the “legitimate penological interest” of the latter with the “important or substantial” interest in the former would in effect let them trample prisoners’ First Amendment rights any time they claimed to do so for “rehabilitation”—turning that into the “exception that swallows the rule.” Martinez, the Court said, does not allow a prison official to “suppress any content that she deems inconsistent with conclusory … assertions of ‘accountability,’ ‘appropriate communication standards,’ or ‘appropriate boundaries’ by claiming that doing so would be rehabilitative.” Instead, it “requires ‘a closer fit,’ with regulations on outbound mail tailored to prevent ‘danger to the community inside the prison,’” not the “specter of ‘negative publicity’ to the prison.”

The district court also erred in granting Defendants QI, the Court said, noting that DOC policy “allowed inspection and reading of mail to prevent contraband, threats to ‘facility order or security,’ and criminal activity,” while also “contemplat[ing] that ‘the contents’ of an inmate’s mail … that left the prison would be ‘uncensored.’” While that is a prison policy, and such policies do not by themselves “clearly establish a constitutional right, it nonetheless remains ‘relevant … to whether reasonable officers would have been on notice that’ their conduct violated the First Amendment,” the Court said, quoting Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003).

Finally, the Court said, the district court erred in its analysis of Grenning’s retaliation claim. “Under the First Amendment, the ‘mere threat of harm can be an adverse action, regardless of whether it is carried out[,] because the threat itself can have a chilling effect,’” the Court explained, citing Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009). But here again the district court relied on the wrong case law, citing Gaut v. Sunn, 810 F.2d 923 (9th Cir. 1987). Since that was an Eighth Amendment case, the district court on remand was ordered to look for the “five basic elements” of a “viable claim of First Amendment retaliation” found in Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005): “(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

Dissenting Judge Patrick J. Bumatay would have affirmed summary judgment for Defendants based on Turner, not Martinez, and also their grant of QI. He further argued that they were not guilty of retaliation because they relied on Grenning’s violation of program policy to suppress his work. Judges M. Margaret McKeown and William A. Fletcher decided differently, however, vacating the district court’s ruling and remanding the case. Before the Court, Grenning was represented by attorneys Brendan D. Duffy, Chloe M. Meade, Garrett W. Callen, Eric M. Walker and William D. Coglianese with Jones Day in Washington, D.C. See: Grenning v. Key, 2026 U.S. App. LEXIS 26014 (9th Cir.).

Prior to his incarceration in the DOC in October 2004, Grenning spent almost three years in solitary confinement under constant illumination in the Pierce County Jail, in retaliation for his efforts to draw attention to violations of an earlier consent decree. As PLN reported, he successfully sued the jail, winning a $10,000 settlement in October 2011. [See: PLN, Dec. 2012, p.16.] His current case has now returned to the district court, and PLN will update developments as they become available. See: Grenning v. Key, USDC (E.D. Wash.), Case No. 2:22-cv-00136.  

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