First Amendment Case Involving Prisoner Complaint with Veiled Threats Won’t Be Reviewed by Supreme Court Over Strong Objection by Three Justices

Does the First Amendment require a prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard?  This is the question that Justices Alito, Thomas, and Kavanaugh believe should be answered by the Supreme Court.

However, over their objection, on May 13, 2019, the remaining Justices refused certiorari in Dahne v. Richey, a petition brought by a prison official who refused to process the grievance of an inmate who used threats in his appeal.

Background at District Court and Ninth Circuit

Thomas Richey, a Washington state inmate currently serving a sentence for murder, submitted a grievance complaining that a guard had improperly denied him shower privileges. His grievance not only insulted the guard, referring to her as a “fat Hispanic,” but contained language that may reasonably be construed as a threat. Specifically, the grievance stated:

“It is no wonder [why] guards are assaulted and even killed by some prisoners. When guards like this fat Hispanic female guard abuse their position . . . it can make prisoners less civilized than myself to resort to violent behavior in retaliation.”

The prison refused to process the grievance but permitted Richey to refile his complaint with the offensive language omitted.  Richey refused to comply and instead submitted a second grievance that repeated much of the original language, adding, “[i]t is no wonder why guards are slapped and strangled by some prisoners.”

Dennis Dahne, a prison employee who processes inmate grievances, refused to accept Richey’s modified grievance.  Dahne later explained his decision was based on the fact that the grievance contained “so much irrelevant, inappropriate, and borderline threatening extra language.” When Dahne refused to process Richey’s modified grievance, Richey filed this action in Federal District Court, claiming that Dahne violated his First Amendment right to petition and for retaliation for exercising his rights under the First Amendment.

Although the District Court originally dismissed Richey’s claim, the Ninth Circuit reversed the decision, holding that Richey stated a valid claim for relief under the First Amendment. Richey v. Dahne, 624 Fed. Appx. 525, 526 (9th Cir. 2015).

When this matter reached the Ninth Circuit again three years later, the Ninth Circuit held there was a First Amendment violation when the prison official refused to allow the grievance to proceed through the administrative process after the rewrite did not satisfy the official’s “sense of propriety.”  The Ninth Circuit held that this is the sort of content-based discrimination that runs contrary to First Amendment protections and that prisoners have a clearly established constitutional right to use “disrespectful” language in prison grievances. Richey v. Dahne, 733 Fed. Appx. 881, 883–884 (9th Cir. 2018)

Interestingly, the Ninth Circuit held that Dahle was entitled to qualified immunity on the retaliation claim.  The Ninth Circuit held that “neither our prior case law nor that of the Supreme Court has clearly established that merely refusing to accept a grievance for processing is a retaliatory adverse action.”  Therefore, Dahle was granted qualified immunity for refusing to process the grievance.

Supreme Court Petition & Review Denied

Dahne petitioned the Supreme Court for review of the decision granting Richey summary judgment as to his right to petition claim.  While the Supreme Court denied review, Justices Alito, Thomas, and Kavanaugh dissented on the grounds that the Supreme Court should decide whether the First Amendment requires prison officials to process prisoner grievance that contains veiled threats to kill or injure a guard.

In the dissenting opinion, written by Justice Alito, Alito noted that prisons are dangerous places. To maintain order, prison authorities may insist on compliance with rules that would not be permitted in the outside world. See Turner v. Safley, 482 U. S. 78, 89–91 (1987).  Alito stated that it does not follow that prison must tolerate veiled threats, but if the Court is uncertain, it should grant review in this case.  The dissenting opinion concluded that “the decision of the Ninth Circuit defies both our precedents and common sense.”

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