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Grievance Discipline Struck Down
The court of appeals for the ninth circuit affirmed a lower court ruling that found Oregon DOC rules that punished prisoners for using hostile, sexual, abusive or threatening language in their written grievances to be unconstitutional. Jeff Bradley, an Oregon state prisoner, was infracted for violating Or.Admin.R. 291-105-015(2)(f), Disrespect, by prison officials after he filed a grievance complaining about a guard not taking him to the law library for a scheduled appointment. In his grievance Bradley contended that the guard had misused her authority, had a psychological disorder and had acted unprofessionally and childishly. Bradley was found guilty and punished.
Bradley filed suit challenging the application of disciplinary rules banning "disrespect" as they are applied to written prison grievances. The district court granted summary judgment in Bradley's favor holding that prisoners should be free to file grievances without fear of being punished for "an unhappy choice of words." The court enjoined prison officials from punishing Bradley for his grievance or applying the disrespect rules to the language within written grievances. The court of appeals affirmed this ruling in its entirety.
The court held that prisoners' right of access to the courts and their right to petition the government for the redress of grievances "precludes prison authorities from penalizing a prisoner for exercising those rights. In some instances, prison authorities must even take affirmative steps to help prisoners exercise their rights." "The right of meaningful access to the courts extends to established prison grievance procedures. Valadingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). See also Hines v. Gomez, 853 F. Supp. 329, 331-332 (ND CA 1994) and cases cited therein." The court noted that in some cases prisoners may be required to exhaust the established prisoner grievance systems before filing suit in federal court. "In those cases, a prisoner's fundamental right of access to the courts hinges on his ability to access the prison grievance system."
The court held that regardless of whether the prisoner is punished for the content of his grievance or the act of filing the grievance itself the chilling effect was the same from the prisoner's perspective. "Without question, the application of the ODOC disrespect regulations to Bradley's written grievance impacts his constitutionally protected rights under the Fourteenth and First Amendments."
The court analyzed the defendant's appeal and arguments under the reasonableness test of Turner v. Safley, 482 US 78, 107 S.Ct. 2254 (1987). "A prisoner's constitutional right of meaningful access to the courts is fundamental. Bounds v. Smith,... The reality and substance of any of a prisoner's protected rights are only as strong as his ability to seek relief from the courts or otherwise to petition the government for redress of the deprivation of his rights. Here, the burden the plaintiff's challenged disrespect rules places on this important right is substantial."
The court held there is a "hazy line" between honest, unabashed language and "hostile or abusive" language leaving prisoners guessing as to whether he will be punished for what he has said in his grievance. Bradley commented on the disrespect rules: "It is very hard to know what the guards might find disrespectful so it is just safer not to complain." Noting that in Casey v. Lewis, 43 F.3d 1261, 1269 (9th Cir. 1994) it had held that a policy requiring prisoners to submit confidential legal papers to prison officials for copying could serve as the basis for a denial of access to the courts claim. "The threat of punishment for an impolitic choice of words burdens the prisoner's right of meaningful access to the court as much as submitting confidential memos to prison officials for copying and occasional perusal."
The court rejected the defendants' argument that allowing any form of disrespect to prisoncrats in any forum would cause a breakdown in prison order and discipline. The court noted that easy, obvious alternatives exist to minimize the impact of any expressions of "disrespect" in prisoner grievances, such as shielding the guards who are the subject of the remarks from reading the grievances. The court held that while the disrespect rules are facially valid, they are invalid as applied to written grievances. The court noted that it left open the possibility that prisoners could be properly disciplined for making criminal threats in written grievances. "Today we hold only that prison officials may not punish an inmate merely for using 'hostile, sexual, abusive or threatening' language in a written grievance." See: Bradley v. Hall, 64 F.3d 1276 (9th Cir. 1995). The lower court ruling is published 911 F.Supp. 446 CD OR (1994).
Bradley filed suit challenging the application of disciplinary rules banning "disrespect" as they are applied to written prison grievances. The district court granted summary judgment in Bradley's favor holding that prisoners should be free to file grievances without fear of being punished for "an unhappy choice of words." The court enjoined prison officials from punishing Bradley for his grievance or applying the disrespect rules to the language within written grievances. The court of appeals affirmed this ruling in its entirety.
The court held that prisoners' right of access to the courts and their right to petition the government for the redress of grievances "precludes prison authorities from penalizing a prisoner for exercising those rights. In some instances, prison authorities must even take affirmative steps to help prisoners exercise their rights." "The right of meaningful access to the courts extends to established prison grievance procedures. Valadingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). See also Hines v. Gomez, 853 F. Supp. 329, 331-332 (ND CA 1994) and cases cited therein." The court noted that in some cases prisoners may be required to exhaust the established prisoner grievance systems before filing suit in federal court. "In those cases, a prisoner's fundamental right of access to the courts hinges on his ability to access the prison grievance system."
The court held that regardless of whether the prisoner is punished for the content of his grievance or the act of filing the grievance itself the chilling effect was the same from the prisoner's perspective. "Without question, the application of the ODOC disrespect regulations to Bradley's written grievance impacts his constitutionally protected rights under the Fourteenth and First Amendments."
The court analyzed the defendant's appeal and arguments under the reasonableness test of Turner v. Safley, 482 US 78, 107 S.Ct. 2254 (1987). "A prisoner's constitutional right of meaningful access to the courts is fundamental. Bounds v. Smith,... The reality and substance of any of a prisoner's protected rights are only as strong as his ability to seek relief from the courts or otherwise to petition the government for redress of the deprivation of his rights. Here, the burden the plaintiff's challenged disrespect rules places on this important right is substantial."
The court held there is a "hazy line" between honest, unabashed language and "hostile or abusive" language leaving prisoners guessing as to whether he will be punished for what he has said in his grievance. Bradley commented on the disrespect rules: "It is very hard to know what the guards might find disrespectful so it is just safer not to complain." Noting that in Casey v. Lewis, 43 F.3d 1261, 1269 (9th Cir. 1994) it had held that a policy requiring prisoners to submit confidential legal papers to prison officials for copying could serve as the basis for a denial of access to the courts claim. "The threat of punishment for an impolitic choice of words burdens the prisoner's right of meaningful access to the court as much as submitting confidential memos to prison officials for copying and occasional perusal."
The court rejected the defendants' argument that allowing any form of disrespect to prisoncrats in any forum would cause a breakdown in prison order and discipline. The court noted that easy, obvious alternatives exist to minimize the impact of any expressions of "disrespect" in prisoner grievances, such as shielding the guards who are the subject of the remarks from reading the grievances. The court held that while the disrespect rules are facially valid, they are invalid as applied to written grievances. The court noted that it left open the possibility that prisoners could be properly disciplined for making criminal threats in written grievances. "Today we hold only that prison officials may not punish an inmate merely for using 'hostile, sexual, abusive or threatening' language in a written grievance." See: Bradley v. Hall, 64 F.3d 1276 (9th Cir. 1995). The lower court ruling is published 911 F.Supp. 446 CD OR (1994).
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Related legal cases
Bradley v. Hall
| Year | 1995 |
|---|---|
| Cite | 64 F.3d 1276 (9th Cir. 1995) |
| Level | Court of Appeals |
Bradley v. Hall, 64 F.3d 1276 (9th Cir. 08/23/1995)
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] No. 94-35844
[4] filed: August 23, 1995.
[5] JEFFREY BRADLEY, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED INDIVIDUALS, PLAINTIFF-APPELLEE,
v.
FRANK HALL, DIRECTOR, OREGON DEPARTMENT OF CORRECTIONS, DEFENDANT-APPELLANT.
[6] Appeal from the United States District Court for the District of Oregon. D.C. No. CV-93-01050-REJ. Robert E. Jones, District Judge, Presiding.
[7] Kaye Sunderland, Assistant Attorney General, Salem, Oregon, for the defendant-appellant.
[8] Spencer M. Neal, Ginsburg, Neal & Lasage, Portland, Oregon, for the plaintiff-appellee.
[9] Before: Alfred T. Goodwin and Procter Hug, Jr., Circuit Judges, and William W Schwarzer*fn* , District Judge. Opinion by Judge Goodwin.
[10] Author: Goodwin
[11] GOODWIN, Circuit Judge:
[12] Jeff Bradley, an Oregon prisoner, sued Frank Hall, the director of the Oregon Department of Corrections ("ODOC") under 42 U.S.C. § 1983 to challenge the constitutional validity of prison regulations prohibiting the use of "hostile, sexual, abusive or threatening" language, Or. Admin. R. 291-105-015(2)(f) and (g). Bradley contended that subjecting him to discipline under these rules for his use of disrespectful language in a written prison complaint form violated his right to petition for redress of grievances. The district court denied the director's motion for summary judgment, granted Bradley's cross-motion for summary judgment, and enjoined the ODOC from punishing Bradley for the wording of his written grievance under any of the ODOC disrespect rules, except to the extent that his grievance may include criminal threats. The district court found that the challenged regulations, though facially valid, were unconstitutional as applied to the contents of prisoner grievances. The director appeals and we affirm.
[13] BACKGROUND
[14] When a prison guard failed to retrieve Bradley from his room for his law library call-out as the guard promised, Bradley submitted a written grievance to the guard's superior in accord with the formal grievance procedures established by the ODOC. After receiving a copy of Bradley's complaint, the accused guard filed a disciplinary report against Bradley, charging him with violating Or. Admin. R. 291-105-015(2)(f) (Disrespect II). The guard cited Bradley for the following language in his grievance:
[15] Her [the guard's] actions shows her misuse of her authority and her psycological disorder needs attention. Then you wonder why things happen like that guard getting beat down? I suggest you talk to this woman and have her act professionally instead of like a child. [sic]
[16] Bradley was found guilty of, and punished for, the lesser offense of violating Or. Admin R. 291-105-015(2)(g) (Disrespect III).
[17] The Oregon rules prohibiting the use of disrespectful language by prisoners, Or. Admin. R. 291-105-015(2)(e), (f), and (g) respectively, provide:
[18] Disrespect I: An inmate commits Disrespect I if he/she directs hostile, sexual, abusive or threatening language or gestures, verbal or written, towards or about another person involving a physical threat to the other person;
[19] Disrespect II: An inmate commits Disrespect II if he/she directs hostile, sexual, abusive or threatening language or gestures, verbal or written, towards or about another person involving a threat to the safety security and orderly operation of the facility (including, but not limited to, when other inmates or employees are present, or in a location such as a dining hall or recreation yard);
[20] Disrespect III (minor violation): An inmate commits Disrespect III when he/she directs hostile, sexual, abusive or threatening language or gestures, verbal or written toward another person.
[21] Bradley brought this civil rights action to challenge the validity of the disrespect rules as applied to statements made in a written grievance, on the ground that fear of discipline impermissibly burdened his constitutional right of access to the courts and right to petition the government for redress of his grievances.*fn1 The director argued that the disrespect rules do not hinder a prisoner from filing a grievance or suit, but merely from using inappropriate language within the grievance itself. The district court ruled that "punishing an inmate for the content of his grievance rather than for the act of filing the grievance is a distinction without a difference." The district court concluded, "Prisoners should be allowed to file grievances within the prison system without fear of being sanctioned for an unhappy choice of words, except to the extent that [the words include] criminal threats." The court granted summary judgment to Bradley and enjoined prison officials from applying the disrespect rules to the language within Bradley's written grievances.
[22] Discussion
[23] 1. The Prisoner's Rights Burdened by the Disrespect Rules
[24] It has long been "established beyond doubt that prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977). A prisoner's right to meaningful access to the courts, along with his broader right to petition the government for a redress of his grievances under the First Amendment, precludes prison authorities from penalizing a prisoner for exercising those rights. In some instances, prison authorities must even take affirmative steps to help prisoners exercise their rights. Id. at 821-832; Casey v. Lewis, 4 F.3d 1516, 1520 (9th Cir. 1993).
[25] The right of meaningful access to the courts extends to established prison grievance procedures. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). See also Hines v. Gomez, 853 F. Supp. 329, 331-332 (N.D. Cal. 1994) and cases cited therein. The "government" to which the First Amendment guarantees a right of redress of grievances includes the prison authorities, as it includes other administrative arms and units of government. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Moreover, in some cases a prisoner may be required to exhaust the established prisoner grievance procedure before securing relief in federal court. See 42 U.S.C. § 1997 et seq. In those cases, a prisoner's fundamental right of access to the courts hinges on his ability to access the prison grievance system.
[26] We are not persuaded by the director's argument that punishing a prisoner for the content of his grievance does not burden his ability to file a grievance. From the prisoner's point of view, the chilling effect is the same. Whether the content of the grievance or the act of filing the grievance is deemed to be the actus reus of the offense, the prisoner risks punishment for exercising the right to complain. Without question, the application of the ODOC disrespect regulations to Bradley's written grievance impacts his constitutionally protected rights under the Fourteenth and First Amendments.
[27] 2. The Turner Test and Analysis
[28] Prison regulations that infringe a prisoner's constitutional right are valid so long as they are "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987); Casey v. Lewis, 4 F.3d at 1520. The Supreme Court has identified four factors to consider when determining the reasonableness of a prison rule: 1) whether there is a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it"; 2) "whether there are alternative means of exercising the right that remain open to prison inmates"; 3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates and on the allocation of prison resources generally"; and 4) the "absence of ready alternatives" or, in other words, whether the rule at issue is an "exaggerated response to prison concerns." Turner v. Safley, 482 U.S. at 89-90 (internal quotations omitted).
[29] The record highlights several legitimate penological interests furthered by the ODOC disrespect regulations. According to expert testimony and the director's brief, the disrespect rules "help prison staff display the high degree of self-control necessary in the correctional profession," by heading off situations in which inmates may bait or goad guards into unprofessional conduct. The record evidence shows that the disrespect rules were adopted to aid in "prison control through encouragement and enforcement of respect by inmates toward staff and other inmates, and rehabilitation of inmates through insistence on their use of socially acceptable ways of solving their problems." There is no question that these are legitimate penological interests and the disrespect rules further each of these interests.
[30] Stressing the deference we owe prison officials, the director argues that, at a minimum, the articulation of these legitimate penological interests served by the rules and the evidence that the rules, in fact, were adopted to serve those interests makes summary judgment for Bradley inappropriate.
[31] The Turner case makes clear that it is not our job to second guess the details of prison management. "Prison administrators . . ., and not the courts, are to make the difficult judgments concerning institutional operations." Turner v. Safley, 482 U.S. at 89. We have also said that for a prison regulation to pass muster "prison officials need merely put forward a legitimate government interest, and provide some evidence that the interest put forward is the actual reason for the regulation." Casey v. Lewis, 4 F.3d at 1520-21 (internal quotations and citations omitted). However, this deferential standard, which the director has met, does not necessarily tell the full story of the analysis required under Turner, but only describes the first, necessary step.
[32] Where appropriate, we must also look to see if the prison rule is an "exaggerated response to prison concerns." Turner v. Safley, 482 U.S. at 89-90. In order to determine whether a rule, even if rationally related to a legitimate interest, is an exaggerated response, we must balance the importance of the prisoner's infringed right against the importance of the penological interest served by the rule. We must also examine the strength of the logical nexus between the penological purpose served and restriction of the prisoner's rights.
[33] A prison rule requiring all inmates to shower on Tuesdays would serve the legitimate penological interest of maintaining hygienic conditions. However, it is unlikely that this Court would permit prison officials to keep a prisoner from attending a court date that happened to fall on a Tuesday. The importance of the prisoner's right to attend his own court date would outweigh the legitimate, though less pressing, prison interest in a clean, fragrant prison atmosphere. Such a rule would be an exaggerated response. Thus, our analysis does not necessarily end at the recognition that the prison rule was adopted to serve, and actually does serve, a legitimate penological interest. "Deference does not mean abdication." Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990).
[34] A prisoner's constitutional right of meaningful access to the courts, which underlies the issue here, is fundamental. Bounds v. Smith, 430 U.S. at 828. The reality and substance of any of a prisoner's protected rights are only as strong as his ability to seek relief from the courts or otherwise to petition the government for redress of the deprivation of his rights. Here, the burden the challenged disrespect rules places on this important right is substantial.
[35] Bradley was punished under a rule that proscribes directing "hostile, sexual, abusive or threatening language or gestures, verbal or written toward another person." Or. Admin. R. 291-105-015(2)(g). Although Bradley does not direct a vagueness or overbreadth challenge to the rules, his challenge reveals a basic contradiction between a prisoner's open, possibly cutting criticism of the conduct of guards which prison grievance systems and the courts invite, and the ODOC rules' mandate of respect for guards in every statement, verbal or written, in every situation. If a line between honest, unabashed airing of a grievance and "hostile, . . . [or] abusive" language exists, it is a hazy one, leaving the aggrieved prisoner guessing whether he will be punished for what he has said in his formal prison complaint. As Bradley himself said of the ODOC disrespect regulations, "It is very hard to know what the guards might find disrespectful so it is just safer not to complain."
[36] We have previously held that a prison policy requiring prisoners to submit confidential legal papers to prison officials for photocopying can serve as the basis for a claim for the denial of meaningful access to the courts. Casey v. Lewis, 43 F.3d 1261, 1269 (9th Cir. 1994). The threat of punishment for an impolitic choice of words burdens the prisoner's right of meaningful access to the courts at least as much as submitting confidential memos to prison officials for copying and occasional perusal.
[37] We of course acknowledge the prison's valid interest in the peaceable operation of the prison through the insistence on respect, rather than through violent confrontation. However, the link between this important purpose and the disrespect rules as applied to formal written grievances is weak. The director and his experts argue that to permit the utterance of disrespectful language in any forum at any time would result in a total breakdown of prison security and discipline. Other courts that have addressed this argument in similar contexts have rejected it. See, Loggins v. Delo, 999 F.2d 364, 367 (8th Cir. 1993) (statements in prisoner's letter to his brother did not implicate prison security concerns and application of disrespect rules to the letter violated the First Amendment)*fn2 and cases cited therein. We agree with these courts that such absolutist arguments for enforcement of disrespect rules in every communication public and private overstate their substantial importance.
[38] The ODOC's legitimate security concerns would be largely served by procedures that require grievances to be in writing and shield those prison officials who are in direct contact with the inmates from reading any insulting remarks that might be contained in those grievances. Cf. Id. In so saying, we do not mandate any alteration to ODOC's current procedures, but merely state that there are obvious, simple alternatives that both accommodate the prisoner's right to file a grievance and prevent any open expression of disrespect or any disrespectful communication between prisoner and guard or between prisoner and prisoner. It takes little imagination to structure a grievance system and regime of disrespect rules that would make a prisoner's statements in a complaint or grievance invisible to all those involved in the daily operations of the prison, alleviating any security concern. A prisoner's statement in a grievance need not have any more impact on prison security through the maintenance of respect than the prisoner's unexpressed thoughts.
[39] Likewise, the rehabilitative aims of the disrespect rules are legitimate penological interests, but are overshadowed by the importance of the prisoner's right of access to the courts in the context of filing a grievance. If there is any time a prisoner should be permitted to speak freely, it is at the bar of Justice.
[40] Conclusion
[41] Because the legitimate penological interests the rules serve could be accommodated without burdening a prisoner's fundamental right of access to the courts, the application of the ODOC Disrespect III rule, Or. Admin. R. 291-105-015(2)(g), to the content of Bradley's written grievance represents an "exaggerated response." Turner v. Safley, 482 U.S. at 89-90. Therefore, the ODOC Disrespect III rule, though facially valid, is invalid as applied to Bradley's written grievance. We leave open the possibility that there may be situations in which prison officials may properly discipline inmates for criminal threats contained in written grievances. Today we hold only that prison officials may not punish an inmate merely for using "hostile, sexual, abusive or threatening" language in a written grievance.
[42] AFFIRMED.
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Judges Footnotes
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[43] *fn* The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation.
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Opinion Footnotes
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[44] *fn1 Bradley challenges the constitutional validity of the disrespect rules only as applied to written grievances. Whether prison officials impermissibly punished Bradley in retaliation for his filing a grievance is a separate issue not present in this appeal.
[45] *fn2 We recognize that the court in Loggins v. Delo was applying the more stringent test under Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974) used to Judge censorship of a prisoner's outgoing mail. However, the reasoning of that opinion regarding the low security risk posed by written material not addressed to prison officials applies with equal force here.
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[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] No. 94-35844
[4] filed: August 23, 1995.
[5] JEFFREY BRADLEY, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED INDIVIDUALS, PLAINTIFF-APPELLEE,
v.
FRANK HALL, DIRECTOR, OREGON DEPARTMENT OF CORRECTIONS, DEFENDANT-APPELLANT.
[6] Appeal from the United States District Court for the District of Oregon. D.C. No. CV-93-01050-REJ. Robert E. Jones, District Judge, Presiding.
[7] Kaye Sunderland, Assistant Attorney General, Salem, Oregon, for the defendant-appellant.
[8] Spencer M. Neal, Ginsburg, Neal & Lasage, Portland, Oregon, for the plaintiff-appellee.
[9] Before: Alfred T. Goodwin and Procter Hug, Jr., Circuit Judges, and William W Schwarzer*fn* , District Judge. Opinion by Judge Goodwin.
[10] Author: Goodwin
[11] GOODWIN, Circuit Judge:
[12] Jeff Bradley, an Oregon prisoner, sued Frank Hall, the director of the Oregon Department of Corrections ("ODOC") under 42 U.S.C. § 1983 to challenge the constitutional validity of prison regulations prohibiting the use of "hostile, sexual, abusive or threatening" language, Or. Admin. R. 291-105-015(2)(f) and (g). Bradley contended that subjecting him to discipline under these rules for his use of disrespectful language in a written prison complaint form violated his right to petition for redress of grievances. The district court denied the director's motion for summary judgment, granted Bradley's cross-motion for summary judgment, and enjoined the ODOC from punishing Bradley for the wording of his written grievance under any of the ODOC disrespect rules, except to the extent that his grievance may include criminal threats. The district court found that the challenged regulations, though facially valid, were unconstitutional as applied to the contents of prisoner grievances. The director appeals and we affirm.
[13] BACKGROUND
[14] When a prison guard failed to retrieve Bradley from his room for his law library call-out as the guard promised, Bradley submitted a written grievance to the guard's superior in accord with the formal grievance procedures established by the ODOC. After receiving a copy of Bradley's complaint, the accused guard filed a disciplinary report against Bradley, charging him with violating Or. Admin. R. 291-105-015(2)(f) (Disrespect II). The guard cited Bradley for the following language in his grievance:
[15] Her [the guard's] actions shows her misuse of her authority and her psycological disorder needs attention. Then you wonder why things happen like that guard getting beat down? I suggest you talk to this woman and have her act professionally instead of like a child. [sic]
[16] Bradley was found guilty of, and punished for, the lesser offense of violating Or. Admin R. 291-105-015(2)(g) (Disrespect III).
[17] The Oregon rules prohibiting the use of disrespectful language by prisoners, Or. Admin. R. 291-105-015(2)(e), (f), and (g) respectively, provide:
[18] Disrespect I: An inmate commits Disrespect I if he/she directs hostile, sexual, abusive or threatening language or gestures, verbal or written, towards or about another person involving a physical threat to the other person;
[19] Disrespect II: An inmate commits Disrespect II if he/she directs hostile, sexual, abusive or threatening language or gestures, verbal or written, towards or about another person involving a threat to the safety security and orderly operation of the facility (including, but not limited to, when other inmates or employees are present, or in a location such as a dining hall or recreation yard);
[20] Disrespect III (minor violation): An inmate commits Disrespect III when he/she directs hostile, sexual, abusive or threatening language or gestures, verbal or written toward another person.
[21] Bradley brought this civil rights action to challenge the validity of the disrespect rules as applied to statements made in a written grievance, on the ground that fear of discipline impermissibly burdened his constitutional right of access to the courts and right to petition the government for redress of his grievances.*fn1 The director argued that the disrespect rules do not hinder a prisoner from filing a grievance or suit, but merely from using inappropriate language within the grievance itself. The district court ruled that "punishing an inmate for the content of his grievance rather than for the act of filing the grievance is a distinction without a difference." The district court concluded, "Prisoners should be allowed to file grievances within the prison system without fear of being sanctioned for an unhappy choice of words, except to the extent that [the words include] criminal threats." The court granted summary judgment to Bradley and enjoined prison officials from applying the disrespect rules to the language within Bradley's written grievances.
[22] Discussion
[23] 1. The Prisoner's Rights Burdened by the Disrespect Rules
[24] It has long been "established beyond doubt that prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977). A prisoner's right to meaningful access to the courts, along with his broader right to petition the government for a redress of his grievances under the First Amendment, precludes prison authorities from penalizing a prisoner for exercising those rights. In some instances, prison authorities must even take affirmative steps to help prisoners exercise their rights. Id. at 821-832; Casey v. Lewis, 4 F.3d 1516, 1520 (9th Cir. 1993).
[25] The right of meaningful access to the courts extends to established prison grievance procedures. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). See also Hines v. Gomez, 853 F. Supp. 329, 331-332 (N.D. Cal. 1994) and cases cited therein. The "government" to which the First Amendment guarantees a right of redress of grievances includes the prison authorities, as it includes other administrative arms and units of government. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Moreover, in some cases a prisoner may be required to exhaust the established prisoner grievance procedure before securing relief in federal court. See 42 U.S.C. § 1997 et seq. In those cases, a prisoner's fundamental right of access to the courts hinges on his ability to access the prison grievance system.
[26] We are not persuaded by the director's argument that punishing a prisoner for the content of his grievance does not burden his ability to file a grievance. From the prisoner's point of view, the chilling effect is the same. Whether the content of the grievance or the act of filing the grievance is deemed to be the actus reus of the offense, the prisoner risks punishment for exercising the right to complain. Without question, the application of the ODOC disrespect regulations to Bradley's written grievance impacts his constitutionally protected rights under the Fourteenth and First Amendments.
[27] 2. The Turner Test and Analysis
[28] Prison regulations that infringe a prisoner's constitutional right are valid so long as they are "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987); Casey v. Lewis, 4 F.3d at 1520. The Supreme Court has identified four factors to consider when determining the reasonableness of a prison rule: 1) whether there is a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it"; 2) "whether there are alternative means of exercising the right that remain open to prison inmates"; 3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates and on the allocation of prison resources generally"; and 4) the "absence of ready alternatives" or, in other words, whether the rule at issue is an "exaggerated response to prison concerns." Turner v. Safley, 482 U.S. at 89-90 (internal quotations omitted).
[29] The record highlights several legitimate penological interests furthered by the ODOC disrespect regulations. According to expert testimony and the director's brief, the disrespect rules "help prison staff display the high degree of self-control necessary in the correctional profession," by heading off situations in which inmates may bait or goad guards into unprofessional conduct. The record evidence shows that the disrespect rules were adopted to aid in "prison control through encouragement and enforcement of respect by inmates toward staff and other inmates, and rehabilitation of inmates through insistence on their use of socially acceptable ways of solving their problems." There is no question that these are legitimate penological interests and the disrespect rules further each of these interests.
[30] Stressing the deference we owe prison officials, the director argues that, at a minimum, the articulation of these legitimate penological interests served by the rules and the evidence that the rules, in fact, were adopted to serve those interests makes summary judgment for Bradley inappropriate.
[31] The Turner case makes clear that it is not our job to second guess the details of prison management. "Prison administrators . . ., and not the courts, are to make the difficult judgments concerning institutional operations." Turner v. Safley, 482 U.S. at 89. We have also said that for a prison regulation to pass muster "prison officials need merely put forward a legitimate government interest, and provide some evidence that the interest put forward is the actual reason for the regulation." Casey v. Lewis, 4 F.3d at 1520-21 (internal quotations and citations omitted). However, this deferential standard, which the director has met, does not necessarily tell the full story of the analysis required under Turner, but only describes the first, necessary step.
[32] Where appropriate, we must also look to see if the prison rule is an "exaggerated response to prison concerns." Turner v. Safley, 482 U.S. at 89-90. In order to determine whether a rule, even if rationally related to a legitimate interest, is an exaggerated response, we must balance the importance of the prisoner's infringed right against the importance of the penological interest served by the rule. We must also examine the strength of the logical nexus between the penological purpose served and restriction of the prisoner's rights.
[33] A prison rule requiring all inmates to shower on Tuesdays would serve the legitimate penological interest of maintaining hygienic conditions. However, it is unlikely that this Court would permit prison officials to keep a prisoner from attending a court date that happened to fall on a Tuesday. The importance of the prisoner's right to attend his own court date would outweigh the legitimate, though less pressing, prison interest in a clean, fragrant prison atmosphere. Such a rule would be an exaggerated response. Thus, our analysis does not necessarily end at the recognition that the prison rule was adopted to serve, and actually does serve, a legitimate penological interest. "Deference does not mean abdication." Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990).
[34] A prisoner's constitutional right of meaningful access to the courts, which underlies the issue here, is fundamental. Bounds v. Smith, 430 U.S. at 828. The reality and substance of any of a prisoner's protected rights are only as strong as his ability to seek relief from the courts or otherwise to petition the government for redress of the deprivation of his rights. Here, the burden the challenged disrespect rules places on this important right is substantial.
[35] Bradley was punished under a rule that proscribes directing "hostile, sexual, abusive or threatening language or gestures, verbal or written toward another person." Or. Admin. R. 291-105-015(2)(g). Although Bradley does not direct a vagueness or overbreadth challenge to the rules, his challenge reveals a basic contradiction between a prisoner's open, possibly cutting criticism of the conduct of guards which prison grievance systems and the courts invite, and the ODOC rules' mandate of respect for guards in every statement, verbal or written, in every situation. If a line between honest, unabashed airing of a grievance and "hostile, . . . [or] abusive" language exists, it is a hazy one, leaving the aggrieved prisoner guessing whether he will be punished for what he has said in his formal prison complaint. As Bradley himself said of the ODOC disrespect regulations, "It is very hard to know what the guards might find disrespectful so it is just safer not to complain."
[36] We have previously held that a prison policy requiring prisoners to submit confidential legal papers to prison officials for photocopying can serve as the basis for a claim for the denial of meaningful access to the courts. Casey v. Lewis, 43 F.3d 1261, 1269 (9th Cir. 1994). The threat of punishment for an impolitic choice of words burdens the prisoner's right of meaningful access to the courts at least as much as submitting confidential memos to prison officials for copying and occasional perusal.
[37] We of course acknowledge the prison's valid interest in the peaceable operation of the prison through the insistence on respect, rather than through violent confrontation. However, the link between this important purpose and the disrespect rules as applied to formal written grievances is weak. The director and his experts argue that to permit the utterance of disrespectful language in any forum at any time would result in a total breakdown of prison security and discipline. Other courts that have addressed this argument in similar contexts have rejected it. See, Loggins v. Delo, 999 F.2d 364, 367 (8th Cir. 1993) (statements in prisoner's letter to his brother did not implicate prison security concerns and application of disrespect rules to the letter violated the First Amendment)*fn2 and cases cited therein. We agree with these courts that such absolutist arguments for enforcement of disrespect rules in every communication public and private overstate their substantial importance.
[38] The ODOC's legitimate security concerns would be largely served by procedures that require grievances to be in writing and shield those prison officials who are in direct contact with the inmates from reading any insulting remarks that might be contained in those grievances. Cf. Id. In so saying, we do not mandate any alteration to ODOC's current procedures, but merely state that there are obvious, simple alternatives that both accommodate the prisoner's right to file a grievance and prevent any open expression of disrespect or any disrespectful communication between prisoner and guard or between prisoner and prisoner. It takes little imagination to structure a grievance system and regime of disrespect rules that would make a prisoner's statements in a complaint or grievance invisible to all those involved in the daily operations of the prison, alleviating any security concern. A prisoner's statement in a grievance need not have any more impact on prison security through the maintenance of respect than the prisoner's unexpressed thoughts.
[39] Likewise, the rehabilitative aims of the disrespect rules are legitimate penological interests, but are overshadowed by the importance of the prisoner's right of access to the courts in the context of filing a grievance. If there is any time a prisoner should be permitted to speak freely, it is at the bar of Justice.
[40] Conclusion
[41] Because the legitimate penological interests the rules serve could be accommodated without burdening a prisoner's fundamental right of access to the courts, the application of the ODOC Disrespect III rule, Or. Admin. R. 291-105-015(2)(g), to the content of Bradley's written grievance represents an "exaggerated response." Turner v. Safley, 482 U.S. at 89-90. Therefore, the ODOC Disrespect III rule, though facially valid, is invalid as applied to Bradley's written grievance. We leave open the possibility that there may be situations in which prison officials may properly discipline inmates for criminal threats contained in written grievances. Today we hold only that prison officials may not punish an inmate merely for using "hostile, sexual, abusive or threatening" language in a written grievance.
[42] AFFIRMED.
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Judges Footnotes
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[43] *fn* The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation.
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Opinion Footnotes
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[44] *fn1 Bradley challenges the constitutional validity of the disrespect rules only as applied to written grievances. Whether prison officials impermissibly punished Bradley in retaliation for his filing a grievance is a separate issue not present in this appeal.
[45] *fn2 We recognize that the court in Loggins v. Delo was applying the more stringent test under Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974) used to Judge censorship of a prisoner's outgoing mail. However, the reasoning of that opinion regarding the low security risk posed by written material not addressed to prison officials applies with equal force here.
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Bradley v. Hall
| Year | 1994 |
|---|---|
| Cite | 911 F.Supp. 446 (D OR 1994) |
| Level | District Court |
JEFFREY BRADLEY, individually and on behalf of all others similarly situated individuals, Plaintiff, v. FRANK HALL, Defendant.
Civil No. 93-1050-JO
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
911 F. Supp. 446; 1994 U.S. Dist. LEXIS 20804
July 21, 1994, DATED
July 21, 1994, FILED; July 22, 1994, Entered
DISPOSITION: [**1] Plaintiff's Cross-Motion for Summary Judgment granted; Defendant's Motion for Summary Judgment denied; and plaintiff's request for an injunction granted.
COUNSEL: Spencer M. Neal, GINSBURG & NEAL, Portland, OR, Of Attorneys for Plaintiff.
Jan Peter Londahl, DEPARTMENT OF JUSTICE, Administration, Salem, OR, Of Attorneys for Defendant.
JUDGES: ROBERT E. JONES, United States District Judge
OPINIONBY: ROBERT E. JONES
OPINION:
[*446] OPINION AND ORDER
JONES, Judge:
Plaintiff inmate brought this ç 1983 claim against the Director of the Oregon Department of Corrections challenging the constitutionality of a regulation that punishes an inmate for use of disrespectful language. Plaintiff claims that when the regulation is applied to language within an inmate grievance, it violates his First Amendment rights to free speech and petition for redress of grievance. Both parties have moved for summary judgment concerning the constitutionality of the regulation. For the reasons set forth below, defendant's Motion for Summary Judgment ( # 29-1) is denied, and plaintiff's [*447] Cross-Motion for Summary Judgment ( # 39) is granted.
I. BACKGROUND
On June 12, 1993, plaintiff filed a grievance with the Oregon Department of [**2] Corrections alleging misconduct by a guard. Plaintiff's grievance included the following: "Her actions shows [sic] her misuse of her authority and her psychological disorder needs attention. Then you wonder why things happen like that guard getting beat down? . . . I suggest you talk to this woman and have her act professionally instead of like a child." Plaintiff's Second Amended Complaint, Attachment 1. Plaintiff was subsequently found guilty of violating OAR 291-105-015(2)(g), one of three disrespect regulations, which provides: "An inmate commits Disrespect III when he/she directs hostile, sexual, abusive or threatening language or gestures, verbal or written, towards or about another person." As a result, plaintiff was punished with a 14-day loss of privileges, suspended on the condition of 30 days clear conduct. Plaintiff's Motion for Preliminary Injunction, Exhibit A, Affidavit of Jeffrey Bradley, at P 11.
Plaintiff claims that application of the disrespect rule to inmate grievances is violative of his First Amendment rights to free speech and petition for redress of grievance. Both parties have moved for summary judgment.
II. LEGAL ANALYSIS
Summary judgment is proper if [**3] the moving party establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Here, the parties do not dispute the facts, and the only question is whether the rule is constitutional when applied to language contained in a grievance.
A. IS THE REGULATION CONSTITUTIONAL UNDER TURNER V. SAFLEY?
The proper test for determining whether the prison regulation at issue is constitutional is set forth in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), n1 which "applies to all circumstances in which the needs of the prison administration implicate constitutional rights." Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 1038, 108 L. Ed. 2d 178 (1990).
n1 Plaintiff's argument that this court should apply the stricter standard of Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1973), is unavailing. Martinez was decided on the basis that the rule at issue impinged upon the constitutional rights of non-inmates; plaintiff's attempt to argue here that the regulation adversely affects the prison administrators' right to receive hostile or threatening grievances is not persuasive.
[**4]
The Turner Court began its analysis of the constitutional rights afforded prisoners by stressing that the courts should give deference to regulations promulgated by prison officials:
Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and the separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have, as we indicated in Martinez, additional reason to accord deference to the appropriate prison authorities.
Turner, 482 U.S. 78, 84-85 (citing Martinez, 416 U.S. 396, 405, 94 S. Ct. 1800, 40 L. Ed. 2d 224) (emphasis added).
With this judicial deference in mind, the Court held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. at 89. The Court then set forth a four-part test to determine whether a reasonable relation [**5] exists, including: (1) whether there is a rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (2) whether the prison inmates have alternative means of exercising the right at issue; (3) what impact accommodation of the asserted constitutional right will [*448] have on guards and other inmates; and (4) whether ready alternatives to the regulation under attack exist (absence of such alternatives being evidence of the rule's reasonableness).
On its face, the rule appears to be reasonably related to legitimate penological interests, as required by Turner. Prison administrators face the difficult task of controlling and rehabilitating large numbers of unruly and largely antisocial inmates. The administrators have a legitimate interest in seeing that the prison runs smoothly and effectively, and continued smooth operation is largely dependent upon inmate recognition of the guards' authority. Mandating prisoner respect for the guards through the enforcement of a disrespect rule such as the one at issue enables the guards to retain control. "While it is unrealistic to expect prisoners to revere their prison guards, open hostility [**6] must be avoided. Such hostility threatens prison security. For this reason, a regulation prohibiting prisoners from verbally abusing their jailers is essential." Robichaux v. Tanner, 1992 U.S. Dist. LEXIS 17337, 1992 WL 345372, *2 (E.D.La.).
However, even though the disrespect regulation on its face satisfies the Turner test, I cannot find a rational connection between the regulation and the prison administration's interest when it is applied to language contained in a grievance.
Defendant argues that the disrespect rule is essential to effective prison operation because unfettered disrespect by inmates towards guards would inevitably lead to loss of control of the prison. While this may be a valid concern in face-to-face situations, I fail to see how an inmate's written complaint, directed to a guard's superior, could provoke the type of volatile reaction that might threaten prison security. The fact that the guards who are the subjects of the grievances eventually read them does not alter my analysis; the explosive potential present in a face-to-face altercation remains absent.
Granted, another function of prison officials is to rehabilitate inmates in preparation for their eventual release. The disrespect [**7] regulation can therefore be viewed as an attempt to mandate respectful behavior in an effort to improve prisoners' basic social skills. However, this rehabilitative mission cannot override the need for inmates to be able to freely address their complaints in the grievance procedure. Similarly, allowing inmates this one avenue of unrestricted speech would not seriously undercut the prison's rehabilitative mission as a whole.
For these reasons, despite the Supreme Court's history of judicial deference in such matters, I cannot find that there is a rational connection between the disrespect rule and the penological interest of the prison when the rule is applied to language contained within a grievance. Although the regulation may be constitutional on its face, it fails the Turner test when applied to grievances. The question remains, however, whether language contained in a grievance is or should be entitled to special protection.
B. ARE INMATE GRIEVANCES ENTITLED TO SPECIAL PROTECTION?
Plaintiff asserts that his right to petition for redress of grievances has been chilled because the broad definitional latitude of the words "hostile" and "abusive" renders almost anything [**8] negative he may write about a guard capable of being construed as violative of the disrespect rule. Further, he asserts that the prison administration's ability to sanction him for language within a grievance effectually amounts to retaliation for the filing of the grievance itself.
It is well-settled that an inmate cannot be punished for the act of filing a grievance. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (filing of disciplinary charge actionable under section 1983 if done in retaliation for having filed a grievance); Wright v. Newsome, 795 F.2d 964, 968 (11th Cir. 1986) (actions taken in retaliation for filing administrative grievance violate inmate's First Amendment rights and right of access to courts). The prison administrative rules recognize this, but draw a distinction between the content of the grievance and the grievance itself: "Inmates/offenders will not be subject to reprisal for filing a grievance or for contacting or seeking review of a complaint outside the Department of Corrections; [*449] however, content of the grievance may subject an inmate to the rules of prohibited conduct." OAR 291-109-015(e).
Punishing an inmate for the content of his grievance [**9] rather than for the act of filing the grievance is a distinction without a difference-- both result in the chilling of free speech.
In a case involving false statements contained in an inmate grievance, the Eighth Circuit similarly rejected bifurcating the language within a grievance from the grievance itself:
Prison officials cannot properly bring a disciplinary action against a prisoner for filing a grievance that is determined by those officials to be without merit anymore than they can properly bring disciplinary action against a prisoner for filing a lawsuit that is judicially determined to be without merit. That the Constitution does not obligate the state to establish a grievance procedure is, we believe, of no consequence here, since what is at stake is a prisoner's right of access to an existing grievance procedure without fear of being subjected to retaliatory disciplinary action. As a purely practical matter, we observe that if such disciplinary actions were allowed, the purpose of the grievance procedure-- to provide an administrative forum for the airing of administrative complaints-- would be defeated.
Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. [**10] 1989).
The purpose of a grievance is to allow an inmate to air his complaints to the prison administration. Any language used by an inmate to complain of guard misconduct will necessarily appear disrespectful, particularly in light of the broad discretion granted the administration in interpreting whether language is "hostile" or "abusive."
Although speech contained in an inmate grievance is not clearly protected under the First Amendment, neither has it been clearly held to be unprotected. Instead, the courts have relied upon Supreme Court holdings in cases involving employee grievances. See, e.g. Curry v. Hall, 839 F. Supp. 1437, 1440 (D.Or. 1993). The Supreme Court has not addressed the issue of First Amendment rights in a prisoner grievance, but in the context of employee grievances has held that "there is no sound basis for granting greater constitutional protection to statements made in a petition. . . than other First Amendment expressions." McDonald v. Smith, 472 U.S. 479, 485, 86 L. Ed. 2d 384, 105 S. Ct. 2787 (1984) (statements contained in petition to President not entitled to absolute immunity). Further, the Court has also held that speech within grievances made [**11] by public employees is entitled to protection only if the employee's speech addresses a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983).
A distinction can be drawn, however, between these cases involving grievances made by citizens who possess uncircumscribed First Amendment rights, and those made by prisoners, whose First Amendment rights have been curtailed. Unincarcerated citizens possess broad First Amendment rights, but are afforded absolute immunity only in certain circumstances. Connick, supra. Prisoners, on the other hand, find their First Amendment rights restricted, and do not "enjoy the full panoply of constitutional rights to express themselves." Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir. 1986).
The prison administration cannot promulgate regulations which impair a prisoner's right of access to the courts. Ex parte Hull, 312 U.S. 546, 549, 85 L. Ed. 1034, 61 S. Ct. 640 (1940); Johnson v. Avery, 393 U.S. 483, 485, 21 L. Ed. 2d 718, 89 S. Ct. 747 (1969). The situation should be analogous within the context of prison grievances. See Carothers v. Follette, 314 F. Supp. 1014, 1022 (S.D.N.Y. [**12] 1970) (imposition or threat of punishment based on prisoner's complaints to court concerning prison conditions chills prisoner's First Amendment right to voice complaints and amounts to form of deterrent censorship). If prison administrators intend to deal honestly and effectively with prisoner complaints of guard misconduct, inmates must be allowed the opportunity to file grievances without fear of being sanctioned for using language which could be construed as hostile or threatening. Not [*450] only will this foster open communication between the inmates and the prison administration, it will also encourage prisoners to use the grievance system to remedy their complaints, rather than causing them to look to the already congested courts for relief.
III. CONCLUSION
Although Disrespect Rule OAR 291-105-015(2)(g) is constitutional under Turner in general situations, it does not have a rational connection to the interests of the prison administration when it is applied to language contained in an inmate grievance. Prisoners should be allowed to file grievances within the prison system without fear of being sanctioned for an unhappy choice of words, and their speech within a grievance should [**13] be protected, except to the extent that it includes criminal threats. Further, inmates should be encouraged to use the prison grievance system rather than resort to the courts for redress of their grievances. For these reasons, defendant is enjoined from enforcing OAR 291-105-015(2)(g), or any other disrespect rules, against language contained within this inmate's grievance.
Plaintiff's Cross-Motion for Summary Judgment ( # 39) is granted; Defendant's Motion for Summary Judgment ( # 29-1) is denied; and plaintiff's request for an injunction is granted.
Pursuant to 42 U.S.C. ç 1988, this court may award plaintiff reasonable attorney's fees incurred in pursuit of his claim. The amount of the fee award, however, is left to the court's discretion. Class status having been denied by Order dated November 30, 1993, plaintiff is therefore directed to submit to this court an application for recovery of legal fees incurred on behalf of this plaintiff only.
DATED this 21st day of July, 1994.
ROBERT E. JONES
United States District Judge
Civil No. 93-1050-JO
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
911 F. Supp. 446; 1994 U.S. Dist. LEXIS 20804
July 21, 1994, DATED
July 21, 1994, FILED; July 22, 1994, Entered
DISPOSITION: [**1] Plaintiff's Cross-Motion for Summary Judgment granted; Defendant's Motion for Summary Judgment denied; and plaintiff's request for an injunction granted.
COUNSEL: Spencer M. Neal, GINSBURG & NEAL, Portland, OR, Of Attorneys for Plaintiff.
Jan Peter Londahl, DEPARTMENT OF JUSTICE, Administration, Salem, OR, Of Attorneys for Defendant.
JUDGES: ROBERT E. JONES, United States District Judge
OPINIONBY: ROBERT E. JONES
OPINION:
[*446] OPINION AND ORDER
JONES, Judge:
Plaintiff inmate brought this ç 1983 claim against the Director of the Oregon Department of Corrections challenging the constitutionality of a regulation that punishes an inmate for use of disrespectful language. Plaintiff claims that when the regulation is applied to language within an inmate grievance, it violates his First Amendment rights to free speech and petition for redress of grievance. Both parties have moved for summary judgment concerning the constitutionality of the regulation. For the reasons set forth below, defendant's Motion for Summary Judgment ( # 29-1) is denied, and plaintiff's [*447] Cross-Motion for Summary Judgment ( # 39) is granted.
I. BACKGROUND
On June 12, 1993, plaintiff filed a grievance with the Oregon Department of [**2] Corrections alleging misconduct by a guard. Plaintiff's grievance included the following: "Her actions shows [sic] her misuse of her authority and her psychological disorder needs attention. Then you wonder why things happen like that guard getting beat down? . . . I suggest you talk to this woman and have her act professionally instead of like a child." Plaintiff's Second Amended Complaint, Attachment 1. Plaintiff was subsequently found guilty of violating OAR 291-105-015(2)(g), one of three disrespect regulations, which provides: "An inmate commits Disrespect III when he/she directs hostile, sexual, abusive or threatening language or gestures, verbal or written, towards or about another person." As a result, plaintiff was punished with a 14-day loss of privileges, suspended on the condition of 30 days clear conduct. Plaintiff's Motion for Preliminary Injunction, Exhibit A, Affidavit of Jeffrey Bradley, at P 11.
Plaintiff claims that application of the disrespect rule to inmate grievances is violative of his First Amendment rights to free speech and petition for redress of grievance. Both parties have moved for summary judgment.
II. LEGAL ANALYSIS
Summary judgment is proper if [**3] the moving party establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Here, the parties do not dispute the facts, and the only question is whether the rule is constitutional when applied to language contained in a grievance.
A. IS THE REGULATION CONSTITUTIONAL UNDER TURNER V. SAFLEY?
The proper test for determining whether the prison regulation at issue is constitutional is set forth in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), n1 which "applies to all circumstances in which the needs of the prison administration implicate constitutional rights." Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 1038, 108 L. Ed. 2d 178 (1990).
n1 Plaintiff's argument that this court should apply the stricter standard of Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1973), is unavailing. Martinez was decided on the basis that the rule at issue impinged upon the constitutional rights of non-inmates; plaintiff's attempt to argue here that the regulation adversely affects the prison administrators' right to receive hostile or threatening grievances is not persuasive.
[**4]
The Turner Court began its analysis of the constitutional rights afforded prisoners by stressing that the courts should give deference to regulations promulgated by prison officials:
Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and the separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have, as we indicated in Martinez, additional reason to accord deference to the appropriate prison authorities.
Turner, 482 U.S. 78, 84-85 (citing Martinez, 416 U.S. 396, 405, 94 S. Ct. 1800, 40 L. Ed. 2d 224) (emphasis added).
With this judicial deference in mind, the Court held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. at 89. The Court then set forth a four-part test to determine whether a reasonable relation [**5] exists, including: (1) whether there is a rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (2) whether the prison inmates have alternative means of exercising the right at issue; (3) what impact accommodation of the asserted constitutional right will [*448] have on guards and other inmates; and (4) whether ready alternatives to the regulation under attack exist (absence of such alternatives being evidence of the rule's reasonableness).
On its face, the rule appears to be reasonably related to legitimate penological interests, as required by Turner. Prison administrators face the difficult task of controlling and rehabilitating large numbers of unruly and largely antisocial inmates. The administrators have a legitimate interest in seeing that the prison runs smoothly and effectively, and continued smooth operation is largely dependent upon inmate recognition of the guards' authority. Mandating prisoner respect for the guards through the enforcement of a disrespect rule such as the one at issue enables the guards to retain control. "While it is unrealistic to expect prisoners to revere their prison guards, open hostility [**6] must be avoided. Such hostility threatens prison security. For this reason, a regulation prohibiting prisoners from verbally abusing their jailers is essential." Robichaux v. Tanner, 1992 U.S. Dist. LEXIS 17337, 1992 WL 345372, *2 (E.D.La.).
However, even though the disrespect regulation on its face satisfies the Turner test, I cannot find a rational connection between the regulation and the prison administration's interest when it is applied to language contained in a grievance.
Defendant argues that the disrespect rule is essential to effective prison operation because unfettered disrespect by inmates towards guards would inevitably lead to loss of control of the prison. While this may be a valid concern in face-to-face situations, I fail to see how an inmate's written complaint, directed to a guard's superior, could provoke the type of volatile reaction that might threaten prison security. The fact that the guards who are the subjects of the grievances eventually read them does not alter my analysis; the explosive potential present in a face-to-face altercation remains absent.
Granted, another function of prison officials is to rehabilitate inmates in preparation for their eventual release. The disrespect [**7] regulation can therefore be viewed as an attempt to mandate respectful behavior in an effort to improve prisoners' basic social skills. However, this rehabilitative mission cannot override the need for inmates to be able to freely address their complaints in the grievance procedure. Similarly, allowing inmates this one avenue of unrestricted speech would not seriously undercut the prison's rehabilitative mission as a whole.
For these reasons, despite the Supreme Court's history of judicial deference in such matters, I cannot find that there is a rational connection between the disrespect rule and the penological interest of the prison when the rule is applied to language contained within a grievance. Although the regulation may be constitutional on its face, it fails the Turner test when applied to grievances. The question remains, however, whether language contained in a grievance is or should be entitled to special protection.
B. ARE INMATE GRIEVANCES ENTITLED TO SPECIAL PROTECTION?
Plaintiff asserts that his right to petition for redress of grievances has been chilled because the broad definitional latitude of the words "hostile" and "abusive" renders almost anything [**8] negative he may write about a guard capable of being construed as violative of the disrespect rule. Further, he asserts that the prison administration's ability to sanction him for language within a grievance effectually amounts to retaliation for the filing of the grievance itself.
It is well-settled that an inmate cannot be punished for the act of filing a grievance. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (filing of disciplinary charge actionable under section 1983 if done in retaliation for having filed a grievance); Wright v. Newsome, 795 F.2d 964, 968 (11th Cir. 1986) (actions taken in retaliation for filing administrative grievance violate inmate's First Amendment rights and right of access to courts). The prison administrative rules recognize this, but draw a distinction between the content of the grievance and the grievance itself: "Inmates/offenders will not be subject to reprisal for filing a grievance or for contacting or seeking review of a complaint outside the Department of Corrections; [*449] however, content of the grievance may subject an inmate to the rules of prohibited conduct." OAR 291-109-015(e).
Punishing an inmate for the content of his grievance [**9] rather than for the act of filing the grievance is a distinction without a difference-- both result in the chilling of free speech.
In a case involving false statements contained in an inmate grievance, the Eighth Circuit similarly rejected bifurcating the language within a grievance from the grievance itself:
Prison officials cannot properly bring a disciplinary action against a prisoner for filing a grievance that is determined by those officials to be without merit anymore than they can properly bring disciplinary action against a prisoner for filing a lawsuit that is judicially determined to be without merit. That the Constitution does not obligate the state to establish a grievance procedure is, we believe, of no consequence here, since what is at stake is a prisoner's right of access to an existing grievance procedure without fear of being subjected to retaliatory disciplinary action. As a purely practical matter, we observe that if such disciplinary actions were allowed, the purpose of the grievance procedure-- to provide an administrative forum for the airing of administrative complaints-- would be defeated.
Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. [**10] 1989).
The purpose of a grievance is to allow an inmate to air his complaints to the prison administration. Any language used by an inmate to complain of guard misconduct will necessarily appear disrespectful, particularly in light of the broad discretion granted the administration in interpreting whether language is "hostile" or "abusive."
Although speech contained in an inmate grievance is not clearly protected under the First Amendment, neither has it been clearly held to be unprotected. Instead, the courts have relied upon Supreme Court holdings in cases involving employee grievances. See, e.g. Curry v. Hall, 839 F. Supp. 1437, 1440 (D.Or. 1993). The Supreme Court has not addressed the issue of First Amendment rights in a prisoner grievance, but in the context of employee grievances has held that "there is no sound basis for granting greater constitutional protection to statements made in a petition. . . than other First Amendment expressions." McDonald v. Smith, 472 U.S. 479, 485, 86 L. Ed. 2d 384, 105 S. Ct. 2787 (1984) (statements contained in petition to President not entitled to absolute immunity). Further, the Court has also held that speech within grievances made [**11] by public employees is entitled to protection only if the employee's speech addresses a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983).
A distinction can be drawn, however, between these cases involving grievances made by citizens who possess uncircumscribed First Amendment rights, and those made by prisoners, whose First Amendment rights have been curtailed. Unincarcerated citizens possess broad First Amendment rights, but are afforded absolute immunity only in certain circumstances. Connick, supra. Prisoners, on the other hand, find their First Amendment rights restricted, and do not "enjoy the full panoply of constitutional rights to express themselves." Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir. 1986).
The prison administration cannot promulgate regulations which impair a prisoner's right of access to the courts. Ex parte Hull, 312 U.S. 546, 549, 85 L. Ed. 1034, 61 S. Ct. 640 (1940); Johnson v. Avery, 393 U.S. 483, 485, 21 L. Ed. 2d 718, 89 S. Ct. 747 (1969). The situation should be analogous within the context of prison grievances. See Carothers v. Follette, 314 F. Supp. 1014, 1022 (S.D.N.Y. [**12] 1970) (imposition or threat of punishment based on prisoner's complaints to court concerning prison conditions chills prisoner's First Amendment right to voice complaints and amounts to form of deterrent censorship). If prison administrators intend to deal honestly and effectively with prisoner complaints of guard misconduct, inmates must be allowed the opportunity to file grievances without fear of being sanctioned for using language which could be construed as hostile or threatening. Not [*450] only will this foster open communication between the inmates and the prison administration, it will also encourage prisoners to use the grievance system to remedy their complaints, rather than causing them to look to the already congested courts for relief.
III. CONCLUSION
Although Disrespect Rule OAR 291-105-015(2)(g) is constitutional under Turner in general situations, it does not have a rational connection to the interests of the prison administration when it is applied to language contained in an inmate grievance. Prisoners should be allowed to file grievances within the prison system without fear of being sanctioned for an unhappy choice of words, and their speech within a grievance should [**13] be protected, except to the extent that it includes criminal threats. Further, inmates should be encouraged to use the prison grievance system rather than resort to the courts for redress of their grievances. For these reasons, defendant is enjoined from enforcing OAR 291-105-015(2)(g), or any other disrespect rules, against language contained within this inmate's grievance.
Plaintiff's Cross-Motion for Summary Judgment ( # 39) is granted; Defendant's Motion for Summary Judgment ( # 29-1) is denied; and plaintiff's request for an injunction is granted.
Pursuant to 42 U.S.C. ç 1988, this court may award plaintiff reasonable attorney's fees incurred in pursuit of his claim. The amount of the fee award, however, is left to the court's discretion. Class status having been denied by Order dated November 30, 1993, plaintiff is therefore directed to submit to this court an application for recovery of legal fees incurred on behalf of this plaintiff only.
DATED this 21st day of July, 1994.
ROBERT E. JONES
United States District Judge