In Shepard v. Quillen, published October 26, 2016, a divided 9th Circuit panel reversed summary judgment granted to a California corrections lieutenant in a state prisoner's retaliation claim under 42 U.S.C. section 1983. The prisoner told the lieutenant that another officer had roughed him up. The lieutenant offered to "maybe . . . work something out" and suggested the prisoner recant his statement. The inmate went forward with his complaint. That day he was transferred to an administrative segregation unit, where he remained for three months. The inmate sued the lieutenant, alleging that the segregation was retaliation for reporting the other officer. The officer contended that he acted properly, or alternatively was entitled to qualified immunity, because a California prison regulation, Cal. Code Regs. tit. 15, section 3335(a), provided that an imate "shall be immediately removed from general population and be placed in administrative segregation" when his presence in the general population presents an immediate threat to the safety of the inmate or others, endangers institutional security, or jeopardizes an investigation of an alleged serious misconduct.
The panel majority held that genuine issues of material fact barred summary judgment. The regulation could not be interpreted, as the lieutenant contended, to require that all prisoners who allege serious staff misconduct be administratively segregated. An official must determine whether one of the concerns addressed in the regulation apply to a complaining inmate before deciding whether to segregate the inmate. The proximity in time between the complaint and the segregation, the offer to "work something out" and suggestion to recant the accusation, and the statement on a form that the segregation was for disciplinary purposes raised genuine issues of fact over whether the segregation was retaliatory. The segregation would potentially chill inmate reports of misconduct. That a review committee later upheld the segregation did not address whether the motive for the segregation was retaliation. Since there was virtually no evidence that the inmate needed to be transferred to protect himself or an investigation, and the regulation could not reasonably be interpreted as requiring segregation of all complaining inmates, issues of fact defeated qualified immunity.
The dissenting judge opined that the lieutenant acted reasonably in interpreting the regulation to require under the circumstances that the prisoner be segregated. Deciding otherwise entangled the court in the day-to-day management of the prison.