Rhodes v. Robinson

• Decision Date: 25 April 2005
• Docket Number: No. 03-15335.,03-15335.
• Citation: 408 F.3d 559
• Parties: Kavin Maurice RHODES, Plaintiff-Appellant, v. M. ROBINSON, R & R Officer; Ron Blevins, R & R Sergeant; Sara Malone, Ombudsman; C. Nelson, Correctional Officer; V. Pazo, Correctional Officer; B. Jones, Sergeant; Robertson, Sergeant; J. Tidwell, Correctional Officer; A. Lopez, Facility Captain; Huebner, Lieutenant, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

408 F.3d 559

Kavin Maurice RHODES, Plaintiff-Appellant, v. M. ROBINSON, R & R Officer; Ron Blevins, R & R Sergeant; Sara Malone, Ombudsman; C. Nelson, Correctional Officer; V. Pazo, Correctional Officer; B. Jones, Sergeant; Robertson, Sergeant; J. Tidwell, Correctional Officer; A. Lopez, Facility Captain; Huebner, Lieutenant, Defendants-Appellees.

No. 03-15335.

United States Court of Appeals, Ninth Circuit.

Submitted May 14, 2004.^*

Filed August 19, 2004.

Amended April 25, 2005.

COPYRIGHT MATERIAL OMITTED

Kavin Maurice Rhodes, pro se, Lancaster, California.

Bill Lockyer, Robert R. Anderson, Allen Crown, James E. Flynn, and John W. Riches II, for the respondent, Office of the Attorney General, Sacramento, California.

Appeal from the United States District Court for the Eastern District of California, Robert E. Coyle, Senior Judge, Presiding.

Before O'SCANNLAIN, SILER,^** and

WARDLAW,^*** Circuit Judges.

ORDER

The opinion filed August 19, 2004, is hereby ordered amended as follows:

Slip op. at 11715, lines 15-16: Delete "harmed the prisoner and (5) was not narrowly tailored to advance a legitimate correctional goal." and replace it with "chilled the inmate's exercise of his First Amendment rights,¹¹ and (5) the action did not reasonably advance a legitimate correctional goal."

Slip op. at 11715, lines 29-30: Delete "were not undertaken in narrowly tailored furtherance of legitimate penological purposes." and replace it with "were not undertaken to advance legitimate penological purposes."

Slip op. at 11716-17: Delete the paragraph on page 11716, lines 28-35, and 11717, lines 1-12, that begins "In this context, and at the pleading stage" and delete the paragraph on page 11717, lines 13-20, that begins "Our cases, in short, are clear" and replace them with "In this context, and at the pleading stage, we have never required a litigant, per impossibile, to demonstrate a total chilling of his First Amendment rights to file grievances and to pursue civil rights litigation in order to perfect a retaliation claim. Speech can be chilled even when not completely silenced. In Mendocino Environmental Center v. Mendocino County, we pointed out that the proper First Amendment inquiry asks "whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities." 192 F.3d 1283, 1300 (9th Cir.1999) (emphasis added), (quoting Crawford-El v. Britton, 93 F.3d 813, 826 (D.C.Cir.1996), vacated on other grounds, 520 U.S. 1273, 117 S.Ct. 2451, 138 L.Ed.2d 210 (1997) (internal quotation marks and citation omitted)). Because "it would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity," Rhodes does not have to demonstrate that his speech was "actually inhibited or suppressed." See id. Rhodes' allegations that his First Amendment rights were chilled, though not necessarily silenced, is enough to perfect his claim.

Except as herein modified, the panel has voted unanimously to deny the Petition for Rehearing. Judge O'Scannlain and Judge Wardlaw have voted to reject the Petition for Rehearing En Banc and Judge Siler so recommended.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions shall be entertained.

OPINION

O'SCANNLAIN, Circuit Judge.

We must resolve a legal quandary that only Joseph Heller, the author of Catch-22, could have imagined: Do the exhaustive efforts of an incarcerated prisoner to remedy myriad violations of his First Amendment rights demonstrate that his First Amendment rights were not violated at all?

I

Kavin Maurice Rhodes is currently imprisoned at California State Prison, Los Angeles County, in Lancaster, California. Proceeding pro se, he brings this § 1983 action against several correctional officers ("the officers") at the California Correctional Institution ("CCI") in Tehachapi, California, alleging that they repeatedly retaliated against him for exercising his First Amendment rights when he was previously incarcerated there.¹

A

Rhodes's conflict with the officers has its genesis in the most unlikely of places: the servicing of his Canon typewriter. It seems that every time Rhodes shipped his typewriter for off-site repairs, he not only would discover "considerable ... new damage" upon its return, but correctional officer M. Robinson would intentionally delay sending Rhodes's typewriter for further repairs. Angered by these actions, Rhodes eventually filed an inmate grievance criticizing Robinson's conduct and requesting that, in the future, his typewriter be returned to him in its original shipping container so that "in the event that the typewriter failed to function,[he] could assign blame to the appropriate parties." His grievance was summarily denied.

A few months later, and allegedly "in retaliation for [his] submission of the grievance," Robinson "forced[him] to send either his CD player, or his television home, in order to receive his typewriter" which had recently returned from another round of repairs. When Rhodes refused to relinquish either of those devices, Robinson refused to return his typewriter and ordered correctional officer C. Nelson to confiscate Rhodes's CD player. Robinson subsequently withheld both Rhodes's CD player and his typewriter.²

In response, Rhodes promptly drafted a "group appeal"³ on behalf of himself and his fellow inmates. That appeal, contained in the record, alleged that Robinson had a "personal vendetta" against inmates who possess personal property (especially those who possess personal typewriters) and that Robinson frequently hampered inmates' efforts to obtain their personal property from the "Receiving and Release" office. Signed by approximately 120 of his fellow inmates, Rhodes's group appeal is punctuated with comments from inmates claiming that—beyond a generally disrespectful attitude—Robinson often arbitrarily withheld their personal property and otherwise damaged or altered their belongings.

Allegedly in an effort to mask these misdeeds, and in purported retaliation for Rhodes's having prepared and submitted the group appeal, Robinson soon altered Rhodes's CD player in order to make it appear as though Rhodes had stolen another inmate's property—and "thereby [to] justify its total confiscation."⁴ To further cover his tracks, Robinson then "conspired" with prison ombudswoman Sara Malone to withhold filing of the group appeal—thus evading CCI's legal duty promptly to respond to the grievance.⁵

In hopes that one of Robinson's superiors might convince him to relinquish Rhodes's typewriter, Rhodes approached Lieutenant Huebner with a request for assistance. While Huebner was kind enough to discuss the matter with Robinson and his colleague, R. Blevins, neither admitted wrongdoing. Instead, both allegedly insisted that the only reason Rhodes had not received his typewriter was because he had refused to request it from them. With seemingly nowhere else to turn, Rhodes then sought out CCI's Facility Captain, A. Lopez, to whom he "verbally described the entire saga of events...." Lopez asked Rhodes to submit his complaints in writing, which he promptly did. Simultaneously, Rhodes forwarded to Lopez his only copy of the grievance he originally filed against Robinson.

Unfortunately, Lopez never responded to Rhodes's filing and he "obstinately refused to return to [Rhodes his] documentary evidence." Instead, Rhodes asserts, the defendants soon initiated a conspiracy to transfer him to the High Desert State Prison in Susanville, California, as "a[ ] collective, and retaliatory measure, to avoid having to respond to any of [his] grievances." As part of this "nefarious scheme," Rhodes soon was ordered to relinquish all personal property to the defendants in preparation for his scheduled transfer. Concerned that his property would be retaliatorily destroyed by the defendants, Rhodes then filed a preemptive grievance.

While this "elaborate ruse" was unfolding, Rhodes—fearing that his internal efforts to secure relief would continue to bear only poisonous fruit—turned to outside authorities for assistance: He filed a complaint with the Kern County Grand Jury. During its investigation, ombudswoman Malone informed the Grand Jury that she had delivered Rhodes's group appeal to the prison's "Men's Advisory Coun[cil]" for "remedial action," which (as formally memorialized in a letter sent to Rhodes shortly thereafter) quickly prompted the Grand Jury to dismiss Rhodes's complaint on grounds that he retained an unexhausted avenue for administrative relief. However, Rhodes alleges—and he has submitted a sworn declaration from the Chairman of the Men's Advisory Council which supports his claim—that the group appeal was never sent to the Council for action.⁶

As Rhodes contemplated his next move, fate intervened to thwart the correctional officers' scheme to transfer him. For Rhodes long had been considering donating a kidney to his ailing mother, and officials in the Department of Corrections's medical division preempted his transfer on grounds that such a move would interfere with donor compatibility testing. When Rhodes went to retrieve his property, Blevins "was very disgruntle[d] and short with[him], and began to make references to some of the claims that [he] had made against ... Robinson." When Rhodes inquired into the status of his preemptive grievance, Blevins responded that it had been forwarded to the prison Appeals Coordinator⁷—and then promptly confiscated twelve of Rhodes's compact discs and his Laser Lens Cleaner. These actions were "perceived by [Rhodes] as ... further[] ... retaliations against [him] for the submission of the `Group Appeal.'" Rhodes then requested his typewriter, and...