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Ninth Circuit:
Ninth Circuit Restores Suit Over Transfer-Threat to Inmate
Majority Says Law Was Clearly Established That Telling Convict Who Filed Multiple Grievances That He Might Be Moved Because He Was ‘Unhappy’ Violates First Amendment, Drawing Dissent by Collins
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held Friday, in a 2-1 decision, that a trial judge erred in finding that qualified immunity protects a prison official against a First Amendment retaliation claim by an inmate over statements by the officer that she was planning on transferring the convict because he “must not be very happy” given his many letters complaining about prisoner treatment.
Finding that the statement amounted to an explicit threat to transfer the plaintiff, the court ruled that the statement was in violation of clearly established First Amendment jurisprudence.
Appealing the dismissal of his action was Christopher Harbridge, who filed a District Court complaint in 2008 against S.L. Reed, the captain in charge, at the time, of California State Prison, Los Angeles County, as well as then-Gov. Arnold Schwarzenegger and other state officials asserting a variety of constitutional claims under 42 U.S.C. §1983. All claims were eventually dismissed after successful motions for summary judgment by the defendants.
In 2018, the Ninth Circuit reversed the dismissal as to a single claim asserting that Reed had retaliated against Harbridge in violation of the First Amendment by threatening him in 2003 with a prison transfer after he wrote letters critical of the prison.
One such letter, highlighted in the complaint, was allegedly widely distributed by his family to members of the Legislature and accused the prison of “defrauding taxpayers by forcing inmates to attend vocational training courses who didn’t want or need to attend, then allowed them to goof off all day…rather than teach them anything.”
Summary Judgment
On remand, Reed filed a motion for summary judgment, asserting qualified immunity.
An assertion of qualified immunity may be defeated by showing that a state actor violated a constitutional right of the plaintiff that was clearly established at the time of the offense.
Magistrate Judge Alka Sagar of the Central District of California concluded that Reed’s statements were at best an implied threat to transfer him if he continued to file complaints.
She declared that that the “[p]laintiff has not identified—and the Court has not found—any controlling case predating Reed’s alleged threat sufficient to put a reasonable prison official on notice that such conduct could constitute an adverse action for purposes of a First Amendment retaliation claim.” District Court Judge George Wu adopted Sagar’s conclusions and judgment was entered dismissing the action with prejudice.
In a memorandum opinion, signed by Circuit Judges Danielle J. Forrest and Jennifer Sung, the court on Friday reversed the dismissal as to the retaliation claim, finding that the statements amounted to an explicit—not implicit—threat and that qualified immunity did not shield Reed from liability because case law clearly established that threatening to transfer an inmate because he filed grievances violated the law.
Circuit Judge Daniel P. Collins dissented, disagreeing with the majority’s classification of Reed’s words as a threat saying:
“Even as recounted by Harbridge, Reed’s words were that Harbridge’s numerous complaints indicated considerable unhappiness at that particular prison and that she therefore planned to transfer him to another institution….There is no case authority from 2003 or earlier that would make clear to ‘every reasonable official’ that such comments would be objectively viewed as a retaliatory threat and that they would chill a person of ordinary firmness.”
Qualified Immunity
Forrest and Sung considered the particular statements made by Reed and concluded:
“[W]e disagree with the district court’s characterization of Reed’s statement as merely an implicit threat. According to Harbridge, Reed summoned him into her office, where she was waiting with two other correctional officers, and told him that he had ‘filed several complaints and written many letters complaining about various procedures and acts of misconduct,’ that he ‘must not be very happy,’ and ‘therefore she [was] going to transfer [him] to another institution.’ Reed had the power to transfer Harbridge, and Reed’s alleged statement explicitly identified Harbridge’s First Amendment activity as the reason that she would transfer him….[A] reasonable jury could find that Reed explicitly threatened to transfer Harbridge because he had filed complaints and written letters.”
They said the Ninth Circuit’s 2001 decision in Gomez v. Vernon “clearly established that a prison official violates a prisoner’s First Amendment rights by threatening to transfer him because of his complaints.”
Forrest and Sung declared:
“[W]e conclude that a reasonable jury could find that Reed explicitly threatened to transfer Harbridge because he had filed grievances and complaint letters, and that this threat had a chilling effect. Consequently, Reed is not entitled to summary judgment on the First Amendment retaliation claim.”
Collins’ View
Collins said the question “is whether the existing caselaw in October 2003 was sufficient to make clear to ‘every reasonable official’ that Reed’s words would objectively be viewed as a retaliatory threat and that her words would chill a person of ordinary firmness.”
Distinguishing Gomez and another case relied upon by the majority, he said that “[n]either case suffices to make clear to every reasonable officer that it is an objective threat, sufficient to chill a person of ordinary firmness, for a prison official to propose a transfer based on the discontent expressed by an inmate’s filing of multiple grievances.”
He continued:
“[T]he majority concludes that Reed violated the ‘clearly established’ law ‘that a prison official violates a prisoner’s First Amendment rights by threatening to transfer him because of his complaints.’…But this defines the applicable law at much too high a level of generality, in contravention of clear Supreme Court authority….Under the proper, objective analysis, our precedent in 2003 did not make clear to every reasonable official that Reed’s words would be viewed as a retaliatory threat and that her words would chill a person of ordinary firmness.”
The case is Harbridge v. Reed, 22-55861.
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