US Supreme Court undercuts California prisoner suits

Of the 28,839 federal civil actions filed in California last year, almost 20 percent were brought by prisoners, for the most part without counsel. Of these, nearly half were what's known as Section 1983 claims, challenging an inmate's conditions of confinement or alleging that prison officials violated his civil rights. 28 U.S.C. Section 1983. Such cases run the gamut from serious allegations of violent wrongdoing to frivolous claims about the commissary inventory. A recent U.S. Supreme Court decision, however, may have just crippled a common strategy to get these claims past summary judgment.

Inmate cases in the 9th Circuit, and in particular the Northern District, follow a different rhythm than normal civil litigation. By law, a pro se inmate's complaint must be "screened" by the court to identify "cognizable" claims; if any are recognized, the complaint is served on the defendants and a dispositive motion deadline is set only a few months away. 28 U.S.C. Section 1915A. That deadline is usually met with a motion for summary judgment. The inmate may or may not have the wherewithal to serve discovery before the deadline, and defendants may or may not find it worthwhile to do so themselves -- most documentary evidence will be maintained by the prison, and discovery responses from a pro se inmate might not be that useful.

If a prisoner complaint survives summary judgment, at least in the Northern District counsel will then be appointed. The entrance of sophisticated lawyers naturally ratchets up the cost and intensity of the suit. In a sense, rather than coming after a long discovery process summary judgment serves to graduate inmate lawsuits from adolescence to adulthood -- if the action can survive it. Because an inmate may develop little additional evidence beyond the allegations in his complaint, the initial pleading serves a larger role in summary judgment than in typical civil cases. This makes it critical for the plaintiff to allege claims that cannot be definitively shot down by whatever documents and declarations the defendants can put together by the summary judgment deadline.

Enter retaliation. The Constitution prohibits the government from retaliating against someone who takes actions protected by the First Amendment, such as speaking or petitioning the government. If you can show that the state took an adverse action against you as a result of your protected activity, and that the government lacked a valid or legitimate purpose for the action, you can successfully allege a Section 1983 claim for retaliation.

Retaliation claims are a potent weapon in prison litigation and frequently pled, even if the alleged retaliation is ancillary to the prisoner's central grievance. On the one hand, inmates are constantly subject to state action, given that the government entirely manages their daily lives. At the same time, inmates frequently exercise their First Amendment rights by speaking, associating with other inmates, appealing disciplinary decisions, or filing staff complaints. Even if only by coincidence, an inmate can often find some adverse state action that was taken in proximity to some protected activity by the inmate.

Moreover, retaliation claims can be hard to defeat at summary judgment. While the 9th U.S. Circuit Court of Appeals has made clear that inmates bear the burden of showing that an adverse action lacked a valid penological purpose (Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003)), the court has also made clear that a defendant who subjectively intends to retaliate against an inmate can't hide behind general justifications as a cover or pretext. See id. at 1289. It can be difficult for a defendant to show that no questions of material fact exist when his internal state of mind is at issue -- our thoughts don't leave a paper trail. Retaliation claims often come down to "he-said"/"she-said" questions that can be hard to resolve definitively through prison records or testimony. Thus, finding a way to articulate retaliation can be a useful tool for an inmate to get through the summary judgment gate.

The U.S. Supreme Court's recent decision in Nieves v. Bartlett, 2019 DJDAR 4518 (May 28, 2019), however, may have significantly undercut the value of retaliation claims. The plaintiff in Nieves had been arrested during a raucous Alaskan winter festival. The plaintiff alleged that he was targeted for arrest because he refused to speak to police at the venue and told other festival-goers to do the same; according to him, an officer taunted, "bet you wish you would have talked to me now" during the arrest. The police insisted that plaintiff had been visibly drunk and belligerently interfered with police business, providing probable cause for the arrest.

The district court granted summary judgment for the defendants, finding that the existence of probable cause precluded his retaliation claim. The 9th Circuit reversed, holding that the plaintiff had put forward sufficient evidence that the officers had acted with retaliatory intent, and that the arrest would not have occurred but for the plaintiff's protected speech (i.e., telling others not to talk to the cops). The Supreme Court granted certiorari to address whether the existence of probable cause categorically disqualifies a retaliatory arrest claim, regardless of the officer's subjective motive.

The Supreme Court ultimately decided that it does. Justice John Roberts, writing for the majority, reasoned that focusing solely on an officer's state of mind would leave too much room for dubious lawsuits, as malicious intent is "easy to allege and hard to disprove." Roberts expressed worry that "[a]ny inartful turn of phrase or perceived slight during a legitimate arrest could land an officer in years of litigation." The court therefore imposed an objective threshold: Before reaching the question of the government actor's intent, the plaintiff must establish that there was no probable cause for his arrest. To address the obvious criticism to this rule -- that it leaves the police free to target their enemies if they can articulate a colorable pretext -- the opinion created a narrow carve-out: A plaintiff can satisfy the no-probable-cause threshold by "present[ing] objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been."

While Nieves involved an allegation of retaliatory arrest, the 9th Circuit's approach in such cases is similar to that applied for prisoner retaliation claims, and the Supreme Court's logic applies equally as well. This may be bad news for California inmates. Prisons remain rough, dangerous places, and the state will generally be able to allege some penological justification for whatever actions it takes. Moreover, for privacy, security and logistical reasons it is not easy for an inmate to gather information about his fellow prisoners, which would be necessary to make use of the Supreme Court's carve-out, which in any case does not cleanly map outside the context of retaliatory arrests.

Pro se inmates can be remarkably savvy, and it remains to be seen how the 9th Circuit will respond to Nieves in prisoner cases. However, it appears that the path through summary judgment may just have gotten significantly narrower for California inmates.