Ninth Circuit: Prisoner’s Service of Process for Other Prisoner Not Protected Conduct

by Mark Wilson

On September 10, 2013, the Ninth Circuit Court of Appeals affirmed the dismissal of a prisoner’s retaliation claim, holding that serving a summons for another prisoner is not constitutionally protected conduct.

Hawaiian prisoner Richard H. Blaisdell was incarcerated at the Saguaro Correctional Center, a prison in Arizona operated by Corrections Corporation of America (CCA). Since 2007 he has filed at least three lawsuits against prison officials.

On April 23, 2008, Blaisdell asked CCA classification supervisor Christina Frappiea to notarize a document for a lawsuit he planned to file against the facility. When she finished, Blaisdell announced that she had been “served” and handed her an unrelated summons and federal civil complaint prepared by another prisoner, Anthony Gouveia.

The complaint concerned Frappiea’s refusal to notarize a document related to a lawsuit Gouveia had filed in Mississippi. Blaisdell was not a party to that suit and had agreed to serve process for Gouveia.

Blaisdell and Frappiea argued about whether he had the right to serve her. She then issued disciplinary reports against Blaisdell, charging him with “Conspiracy” for agreeing to possess Gouveia’s summons and complaint, “Failure to Follow Rules” by possessing another prisoner’s property and “Violation of Federal, State or Local Laws” for failing to comply with Arizona’s legal requirements for process servers and the Prison Litigation Reform Act’s screening provisions of 28 U.S.C. § 1915A prior to attempting service.

A CCA disciplinary hearing officer found Blaisdell guilty of the charges and imposed a sanction of 60 days in administrative segregation.

Blaisdell filed suit in Arizona state court, but the case was removed to federal court. He alleged the discipline was retaliatory and sought damages totaling $10,000.

On initial screening, the district court interpreted Blaisdell’s claim as alleging retaliation for having attempted to serve Gouveia’s lawsuit, as well as a claim that “Frappiea had prepared the disciplinary charge ‘to get even’ with Blaisdell for his own prior lawsuits against CCA and its officers.”

The district court granted summary judgment to the defendants, concluding that Blaisdell’s service of process was not constitutionally protected conduct. It also noted that Blaisdell had expressly disclaimed that the retaliation was due to his own litigation activity.

The Ninth Circuit affirmed, first rejecting Blaisdell’s attempt to void his statement waiving his own prior litigation as the reason for retaliation by Frappiea.

The appellate court then found that Blaisdell was not engaged in protected conduct when he attempted to serve Gouveia’s complaint. Resolving that issue required it “to wade into doctrinal waters not often explored in detail by courts.”

The Court of Appeals rejected Blaisdell’s argument that his conduct was protected by his constitutional right “to pursue ‘litigation-related activities.’” The appellate court held that “while Gouveia and Blaisdell each have an access-to-courts right to file litigation from prison, they cannot vicariously assert that protection on each other’s behalf.”

Relying on Johnson v. Avery, 393 U.S. 483 (1969), Blaisdell argued that he had a right to provide “affirmative legal assistance to his fellow inmate.” The Court of Appeals disagreed, finding that “close inspection of Johnson and its progeny illustrates that.... Blaisdell misconceives the true nature of the right to assistance.” In Johnson, prison officials “failed to provide any other mechanism for helping inmates who were incapable of preparing legal papers themselves.” In contrast, CCA’s policy “provides for a law library and for contract attorneys or paralegals.” Blaisdell did not challenge the sufficiency of either, and acknowledged that the Federal Rules of Civil Procedure provide for alternative methods of service.

Based on Rizzo v. Dawson, 778 F.2d 527 (9th Cir. 1985), Blaisdell also contended that his conduct was protected by “the freedom of ‘association for the advancement of beliefs and ideas’” recognized in NAACP v. Button, 371 U.S. 415 (1963).

The Ninth Circuit found Rizzo was not controlling because Blaisdell had not engaged in the kind of activity which Rizzo held was protected. It also refused to extend Rizzo to service of process.

Although the appellate court did not – and could not – overrule Rizzo, it wrote that “its holding is difficult to square with the Supreme Court’s subsequent teachings on prisoners’ rights.”

In conclusion, “Because of questions about Rizzo’s vitality, the general incompatibility between prison and free association, and because there is no evidence of expressive association,” the Court of Appeals held “that the First Amendment does not protect Blaisdell’s attempted service of process on Frappiea.” See: Blaisdell v. Frappiea, 729 F.3d 1237 (9th Cir. 2013).

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