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Entler v. Gregoire

United States Court of Appeals, Ninth Circuit

October 6, 2017

John Thomas Entler, Plaintiff-Appellant,
v.
Christine Gregoire; Bernie Warner, AKA Berny Waner; Steven Sinclair; Ron Knight; Lynn Irish Clark; Pierce, Mr., Defendants-Appellees.

          Argued and Submitted April 7, 2017 Seattle, Washington

         Appeal from the United States District Court for the Eastern District of Washington D.C. No. 2:12-cv-05141-JPH Lonny R. Suko, District Judge, Presiding

          Jared R. Wigginton (argued), Stoel Rives LLP, Seattle, Washington, for Plaintiff-Appellant.

          Timothy J. Feulner (argued), Assistant United States Attorney; Robert W. Ferguson, Attorney General; United States Attorney's Office, Olympia, Washington; for Defendants-Appellees.

          Before: William A. Fletcher and Ronald M. Gould, Circuit Judges, and Frederic Block, [*] District Judge.

         SUMMARY [**]

         Prisoner Civil Rights

         The panel reversed in part and affirmed in part the district court's dismissal, on the pleadings, of a complaint brought pursuant to 42 U.S.C. § 1983 by a prisoner who alleged that his First Amendment rights were violated when he was disciplined for threatening to initiate civil litigation and file a criminal complaint against prison officials.

         Plaintiff was disciplined for his threats under a Washington Department of Corrections regulation that bars prisoners from intimidating or coercing prison staff. With regard to plaintiff's threats to bring civil litigation, the panel disagreed with the district court's conclusions that plaintiff has not alleged an actionable First Amendment retaliation claim and that, alternatively, the prison officials were entitled to qualified immunity. The panel held that threats to sue fall within the purview of the constitutionally protected right to file grievances and that in 2012 it was clearly established that plaintiff had a right to file his grievances and pursue civil litigation. The panel held that taking the complaint as true in the face of a Rule 12(c) motion to dismiss on the pleadings, it could not conclude that a reasonable official would not have understood that disciplining plaintiff for threatening to file a civil suit was constitutionally impermissible.

         With regard to the discipline imposed for plaintiff's threat to file a criminal complaint, the panel held that both the filing of a criminal complaint by a prisoner, as well as the threat to do so, are protected by the First Amendment, provided they are not baseless. The panel nevertheless held that defendants were entitled to qualified immunity because it was not clearly established at the time that the threat to file a criminal complaint was constitutionally protected conduct.

          OPINION

          BLOCK, District Judge

         John Thomas Entler ("Entler" or "Appellant") is a prisoner at the Washington State Penitentiary ("WSP"). During the summer of 2012, he took issue with certain incidents at the WSP and submitted written complaints to the prison officials involved.[1] In all but one, Entler threatened to initiate civil litigation if his concerns were not addressed; in the other, he threatened to file a criminal complaint against a number of state officials and have them arrested.[2] Entler was disciplined for these threats under a Washington Department of Corrections ("DOC") regulation that bars prisoners from intimidating or coercing prison staff.

         With regard to the threats to bring civil litigation, we disagree with the district court's conclusions that Entler has not alleged an actionable First Amendment retaliation claim and that, alternatively, the prison officials were entitled to qualified immunity. With regard to the threat to file a criminal complaint, we disagree with the district court's implicit conclusion that Entler has not alleged an actionable First Amendment retaliation claim[3]; however, we hold that the Defendants were entitled to qualified immunity. Accordingly, we reverse the judgment dismissing the Complaint on the pleadings in part, affirm in part, and remand for further proceedings in accordance with this decision.

         I

         A. The Grievance Process

         The DOC has established an Offender Grievance Program to allow prisoner grievances to be "heard and dealt with in a formal manner." The Manual provides, however, that prisoners should "try to informally resolve [their] issue before filing a formal grievance" by submitting a "kite"-a letter on a pre-printed DOC form[4]-to the officer implicated in the issue; consequently, prisoners are "expected . . . to seek informal resolution to [their] concerns through regular administrative channels prior to utilizing the grievance procedure." The Manual is silent, however, as to what action, if any, is required of the officer receiving the kite. It simply provides that if the prisoner cannot resolve the issue informally, he or she may file a formal complaint "[w]ithin 20 working days of the date of the incident."

         A prisoner files a formal complaint by submitting a "statement of concern"[5] on the DOC's official Complaint Form-DOC form 5-165-to the prison Grievance Coordinator, who must then respond "[w]ithin 5 working days of the date of receipt." From there, "[t]he grievance coordinator or assigned investigator will: review assigned investigator's instructions; review local policies and procedures; review DOC policies, [Washington Administrative Code], [Revised Code of Washington] as necessary; review inventories, daily logs, medical records, etc[.], as necessary; interview resource staff (doctors, supervisors, chaplain, etc.) for additional perspective, as necessary; interview grievant and/or witnesses as appropriate. Written statements may be accepted." The next step is "[r]eview of the complaint by the Grievance Coordinator, " followed by an "[a]ttempt to resolve grievance by the Grievance Coordinator, " then "[r]eview by Superintendent/facility supervisor, " and, finally, a "[r]eview by Deputy Secretary/designee."

         B. Prisoner Discipline

         Prison administration is governed by the Washington Administrative Code ("WAC"). Rule 663 of Section 137-25-030 ("Rule 663") lists as a "serious violation" the use by a prisoner of "physical force, intimidation, or coercion against any person." By contrast, Rule 202 of WAC 137-28-220 ("Rule 202") lists as a "general violation . . . [h]arassing, using abusive language, or engaging in other offensive behavior directed to or in the presence of another person(s) or group(s)."

         WAC 137-28 is a comprehensive chapter dealing with prison discipline. It defines an infraction as "[a] term designating the procedures and documents related to offender misconduct and the facility disciplinary process as a result of a rule violation." WAC 137-28-160(6). Each category of infraction-whether general or serious-calls for a separate process and set of sanctions. See WAC 137-28-230, 137-28-270. A "general infraction" does not require a hearing and subjects a prisoner to mild sanctions imposed by the prisoner's supervisor, including a "[r]eprimand or warning[, ]" an "[i]ssuance of a written order to cease the problematic behavior[, ]" and "confinement to cell/room . . . for a period not to exceed ten consecutive days." WAC 137-28-240.

         A "serious infraction" requires a staff member who witnesses the serious violation to "prepare and submit an infraction report" to an infraction review officer, who forwards the report to a hearing clerk. WAC 137-28-270. The hearing clerk then schedules a disciplinary hearing before a hearing officer, which the prisoner can choose to attend to listen, testify, and/or call witnesses. See WAC 137-28-285. If the hearing officer finds the prisoner guilty of a serious violation, the officer may impose more severe sanctions than those appropriate for a general infraction, including cell confinement, "confinement on isolation status, " or "[s]uspension or termination of visitation." WAC 127-28-350.

         C. Entler's Kites and Discipline

         The following facts are drawn from Appellant's voluminous pro se Complaint[6] relying on 19 attachments, most of which document all of Entler's kites and disciplines.

         Entler sought redress for the following issues, which arose in June and July of 2012. Rather than immediately filing formal complaints through the Offender Grievance Program, Entler filed several informal complaints-as "expected" by the Manual-with the alleged offending officials.

         1. Wrongful charge to prison account, failure to provide copies of legal documents, and denial of art curio permit

         On June 12, 2012, Entler submitted a kite to the WSP Accounting Department contesting a $200 charge to his prison account. In the kite, Entler stated: "The [charge] you added to my account is not from the Superior Court and does not relate to a felony conviction. Please remove it." The WSP Accounting Department responded with a copy of a court order awarding the DOC $200 against Appellant. Entler filed a second kite on June 18, 2012, challenging the WSP Accounting Department's response. In that kite he stated: "Remove the [charge] or I will sue you and make you remove it." Appellant raised the same issue in a letter to the DOC Inmate Accounts Unit on June 20, 2012, stating: "Please remove these illegal [charges] from my account or I will be left with no other alternative but to seek legal redress to make you remove them." After receiving no response for a month, he wrote a second letter to the Inmate Accounts Unit on July 30, 2012, in which he stated, "If you fail to respond to this letter within 20 days, or by August 20, 2012, I will assume that you are not going to respond, and I'll be left with no other alternative by [sic] to seek legal redress to make you remove these illegal [charges] you have added to my Inmate Account."

         On June 25, 2012, Appellant submitted kites to the WSP superintendent and Bar Unit Manager Lynn Clark ("BUM Clark") requesting that they fire Baker Unit Counselor Joanna Irwin ("BUC Irwin") for failing to provide him copies of legal documents. He stated: "If you do not fire her for refusing to provide me legal copies, which she has done again, I'll file criminal charges with the Sheriff's office and have you arrested. If I see or hear of here [sic] being at this institution I'll file criminal charges against you and have you arrested." On July 5, 2012, he submitted a lengthy complaint to the Sheriff's Office in Walla Walla County (where the WSP is located) "seeking to initiate criminal charges against the named State Officials."[7] He requested that the Sheriff's Office "arrest these individuals and place them in custody, or issue a citation to them for the mentioned misdemeanor crimes."

         On July 18, 2012, Entler received notice that the WSP denied his application for an art curio permit. He sent a kite contesting the denial the same day. In this kite, he stated, "I'll give you 7 working days from 7-19-12 to answer this kite before I exercise my legal rights to file a grievance, retaliation against me, by you and these staff that are giving you false negitive imput [sic] as a disguise to deny me a [sic] art curio permit." The next day, July 19, BUM Clark visited Entler's cell, and Entler told him that Entler planned to file a formal complaint.

         On July 19, 2012, BUM Clark issued Entler a serious infraction in response to these kites, stating that Entler: (1) "has threatened to sue the entire WSP Accounting Department" regarding the $200 charge on his prison account; (2) "has threatened me that he will file criminal charges/arrest by sheriff against me if I do not fire [BUC Irwin], " or "if he sees or hears of [BUC Irwin] being at this institution"; (3) "has threatened" to "file a grievance" if he did not receive a response to his complaint regarding the denial of his application for an art curio permit. BUM Clark stated further that Entler was "using these kites as intimidation and coercion" in violation of Rule 663. A disciplinary hearing was held on August 1, 2012 before Hearing Officer Jackson, who found that "the way [Appellant] worded his verbiage in his kite[s] was intimidating." The hearing officer sentenced Entler to fifteen days of lost "big yard" and gym time. Id.[8]

         2. Compelled work assignment contrary to religious beliefs

         The same day that Entler received this serious infraction-July 19-WSP officers informed him of a mandatory job assignment. Entler contested the assignment in a letter to the WSP's Religious Programs Manager that same day. In the letter he stated:

I'm requesting that DOC recognize my religious beliefs, and stop making me work contrary to my Seriously Held Religious Beliefs rooted in my religion, under threat of punishment for refusing to work. . . . If DOC refuses to recognize my Seriously Held Religious Beliefs ...

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