In Entler v. George, published October 6, 2017, the 9th Circuit Court of Appeals reversed in part and affirmed in part a district court's dismissal of a pro se prisoner's lawsuit under FRCP 12(c). The Washington State Department of Corrections established an offender grievance program that encourages prisoners to try to informally resolve their issues before filing a formal grievance, by submitting a "kite" (a letter on a pre-printed form) to the officer implicated in the issue. The plaintiff prisoner sent multiple kites to various prison employees, threatening to sue them for various issues, and in one case threatening to file criminal charges against the penitentiary superintendent and a manager if they did not fire an employee. Prison officials punished the plaintiff with discipline. The plaintiff sued prison officials for First Amendment retaliation. The district court judge ruled that the kites were not protected by the First Amendment, and that in the alternative the officials were protected by qualified immunity.
The 9th Circuit ruled that grievances, whether formal or informal, and threats to sue were protected by the First Amendment, and that legitimate penological interests did not permit prison officials to punish that speech. Further, existing precedent clearly established that the punishment would violate the First Amendment. The officials were therefore not entitled to qualified immunity for punishing the threats to sue. The court also ruled, as a matter of first impression, that the First Amendment also protected the threat to file criminal charges from punishment. But because the law did not clearly establish that right, the officials were entitled to qualified immunity as to that portion of the plaintiff's claim.
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