Hargis v. Foster

• Citation: 282 F.3d 1154
• Decision Date: 07 March 2002
• Docket Number: No. 00-35466.,00-35466.
• Parties: Christopher HARGIS, Plaintiff-Appellant, v. Phil FOSTER, Beauchamp, Lahaei, D.W. McEcheron, and D.H.O. Crawford, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

282 F.3d 1154

Christopher HARGIS, Plaintiff-Appellant, v. Phil FOSTER, Beauchamp, Lahaei, D.W. McEcheron, and D.H.O. Crawford, Defendants-Appellees.

No. 00-35466.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 8, 2001.

Filed March 7, 2002.

Gregory Mann Miller, Seattle, WA, for the plaintiff-appellant.

Stephanie A. Altig, Boise, ID, for the defendants-appellees.

Appeal from the United States District Court for the District of Idaho, Mikel H. Williams, Magistrate Judge, Presiding. D.C. No. CV-98-00510-MHW.

Before: B. FLETCHER, McKEOWN, and TALLMAN, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge.

Christopher Hargis, an Idaho prisoner who suffers from a neurological disorder causing jerking and shaking, brings this action, pursuant to 42 U.S.C. § 1983, against the defendant prison officials in their individual and official capacities for violating his First and Eighth Amendment rights. He asserts that the defendants violated his First Amendment right to free speech when they punished him under a coercion regulation. Hargis was disciplined for violating the coercion regulation when he informed a guard that shaving with a razor blade endangered his safety due to his medical condition and that the guard's actions and statements could come up in pending state court litigation. Hargis also claims the defendants used the coercion regulation as a pretext to retaliate against him for exercising his First Amendment right to petition the government for redress of grievances. Finally, he claims the defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment by forcing him to injure himself by shaving with a razor blade. The district court granted the defendants summary judgment on the free speech claim and dismissed the remaining claims.

We are asked to decide two questions: (1) whether there is a triable issue of fact as to whether the defendants' application of the coercion regulation in this case violated Hargis's right to free speech and (2) whether the district court abused its discretion in dismissing Hargis's retaliation and Eighth Amendment claims with prejudice. We answer both questions in the affirmative. In addition, Hargis's newly-appointed counsel raises an ADA claim. However, because the ADA claim was neither alleged nor argued in the district court, we will not consider the ADA claim on this appeal. United States v. Antonakeas, 255 F.3d 714, 721 (9th Cir.2001) (noting that ordinarily this court will not hear issues raised for the first time on appeal).

I. Factual and Procedural Background

Hargis suffers from a medical condition known as spasmodic torticollis, a neurological disorder that causes his head to twist and jerk uncontrollably. In an attempt to obtain medical treatment for this condition, Hargis petitioned for a writ of habeas corpus in state court. While the case was pending, a prison guard, Defendant Beauchamp, ordered Hargis to shave. Prison regulations require inmates to shave daily. Hargis attempted to shave but cut himself as a result of a neck spasm after shaving only half his face. The next day Beauchamp warned that he would issue a disciplinary offense report ("DOR") if Hargis did not shave.

When the guard saw Hargis later that day, he still had not shaved. Hargis explained that he had a medical condition that made it impossible for him to shave without cutting himself. Beauchamp responded by explaining that he had discussed Hargis's medical problem with the prison medical staff and was told that Hargis had no diagnosed medical condition that would interfere with his ability to shave. Hargis suggested to Beauchamp, as an alternative to the DOR, that he be allowed to use an electric razor. According to Hargis, Beauchamp's supervisor had allowed him to use an electric razor in the past. Beauchamp refused to give Hargis an electric razor. Hargis requested to speak with the medical personnel himself or to a supervisor. Beauchamp refused.

Hargis informed Beauchamp of the pending state court proceeding and asked if Beauchamp would wait until the issue was adjudicated. Again, Beauchamp refused. Finally, Hargis told Beauchamp that anything he said or did could come up in litigation later. Beauchamp asked Hargis if he was threatening him, and Hargis told him he was not threatening him but just informing him that his actions could be subject to review by the court. Hargis explained to the guard that he was not trying to challenge Beauchamp's authority, rather he was only asking for patience and understanding during the pendency of the state court proceedings.

After this conversation, Hargis submitted a concern form complaining that Beauchamp was trying to "coerce" him into injuring himself. Beauchamp answered that Hargis's claims of a medical condition were unsubstantiated, and that Beauchamp was not coercing him, but rather was ordering him to shave. Later that night, Hargis received a DOR. The DOR charged Hargis not with failing to shave (a Class D infraction), but with the more serious Class-A offense of coercion. The coercion regulation specifically prohibits "involvement in any disorderly conduct by coercing or attempting to coerce any official action."

The DOR was approved after a disciplinary hearing held by Defendant Crawford. Crawford sanctioned Hargis by imposing fifteen days of disciplinary segregation. However, the sanction was suspended for ninety days, and Hargis completed the suspension without serving any disciplinary time. Hargis appealed the determination to Warden Foster, who denied the appeal. Because the Class A offense remains on his disciplinary record, Hargis has been refused parole.

After exhausting his institutional appeals, Hargis filed suit in the district court under 42 U.S.C. § 1983. Hargis requests a judgment declaring that the defendants' actions violated the First and Eighth Amendments. He also asks for injunctive relief against future infringement of his First Amendment rights and for expungement of the DOR from his records. Finally, he requests nominal and punitive damages for these violations.

The defendants filed a motion for summary judgment. Hargis filed a crossmotion for partial summary judgment on his free speech claim and a motion to dismiss his Eighth Amendment and retaliation claims under Fed.R.Civ.P. 41(a)(2). The district court granted defendants' motion for summary judgment on the free speech claim and dismissed Hargis's retaliation and Eighth Amendment claims with prejudice. We have jurisdiction over Hargis's appeal pursuant to 28 U.S.C. § 1291.

II. Summary Judgment on the First Amendment Claim

Hargis contends that the district court erred in granting the defendants summary judgment denying his First Amendment free speech claim. A grant of summary judgment is reviewed de novo. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001). We must determine, viewing the evidence in the light most favorable to Hargis, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

A prisoner retains those First Amendment rights that are "not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir.2001) (quoting Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977)) (internal quotation marks omitted). Accordingly, under Turner v. Safley, a prison regulation that impinges on an inmate's First Amendment rights is "valid if it is reasonably related to legitimate penological interests." Shaw v. Murphy, 532 U.S. 223, 121 S.Ct. 1475, 1479, 149 L.Ed.2d 420 (2001); Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The district court concluded that the prison authorities have a legitimate penological interest in the consistent enforcement of prison rules and that disciplining prisoners who attempt to coerce a guard into not enforcing prison rules is reasonably related to that interest. We agree that the coercion regulation, on its face, satisfies the Turner test. Hargis concedes this much.

However, the First Amendment inquiry does not end with this facial analysis. Hargis argues that, although facially valid, the coercion regulation was unconstitutional as applied to him because his conversation with Beauchamp was not coercive. See, e.g., Shaw, 121 S.Ct. at 1481 ("[T]he question remains whether the prison regulations, as applied to Murphy, are `reasonably related to legitimate penological interests.'") (emphasis added).

We assign no heightened value to Hargis's speech. In ruling on this as-applied challenge, we examine whether applying the regulation to that speech — whatever its value — was rationally related to the legitimate penological interest asserted by the prison. To the extent the dissent argues that Shaw prohibits this sort of examination, we disagree. The Supreme Court specifically remanded Shaw to answer the question whether the prison regulations, as applied, were reasonably related to legitimate penological interests. Shaw, 121 S.Ct. at 1481.

In conducting the as-applied analysis, we must determine whether there is a genuine dispute as to whether Hargis's statements in fact implicated legitimate security concerns. As noted above, the coercion regulation is intended to further the maintenance of institutional order through the consistent enforcement of prison rules, including the rule requiring inmates to shave. However, the evidence in the record reveals that Hargis's statements, taken in the full context of his conversation with the guard, may not have been an attempt to coerce the guard into not enforcing the shaving rule.

In his sworn affidavit, Hargis states that he attempted to shave his face with a regular razor; he was only able to shave part of his face before he cut himself. Hargis described...