NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS W.S. RICHEY, 

Plaintiff-Appellee, 

 v. 

D. DAHNE, 

Defendant-Appellant.

No. 17-35032 

D.C. No. 3:12-cv-05060-BHS 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted March 13, 2018

Seattle, Washington

Before: W. FLETCHER and GOULD, Circuit Judges, and EZRA,** District 

Judge.

Thomas Richey, a Washington state prisoner, filed an internal grievance 

complaining about the actions of a prison guard. The grievance included rude 

comments about the guard’s weight, including describing her as “extremely 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable David A. Ezra, United States District Judge for the 

District of Hawaii, sitting by designation.

FILED

APR 25 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

obese.” Dennis Dahne, an official charged with handling grievances, took issue 

with parts of the grievance and told Richey to rewrite the grievance to eliminate 

the objectionable commentary. Richey submitted a “rewrite” that kept the rude 

comments, and that resulted in the facts that generated this lawsuit. 

Dahne did not process the rewritten grievance still containing the offensive 

language about the guard’s weight, and the grievance was subsequently considered 

to be “administratively withdrawn,” which meant that it would not be processed.

Richey sued for violation of his First Amendment right to petition and for 

retaliation for exercising his rights under the First Amendment.1 The district court 

granted summary judgment to Richey on the right to petition claim, and denied 

summary judgment to Dahne on the retaliation claim, holding that there were 

material questions of fact related to that claim. 

Dahne appeals, arguing that he is entitled to qualified immunity on both 

claims. We affirm the district court’s grant of summary judgment to Richey on his

right to petition claim, but reverse the district court on qualified immunity grounds 

on his retaliation claim. 

1. Under the First Amendment, speech is protected unless the speech 

falls under one of a few narrowly defined categories of unprotected speech such as 

 

1 We previously reviewed this case at the motion to dismiss stage, holding that 

Richey had stated a plausible claim for relief. Richey v. Dahne, 624 F. App'x 525 

(9th Cir. 2015).
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fighting words, defamation, or obscenity. R.A.V. v. City of St. Paul, 505 U.S. 377, 

382– 84 (1992). We have previously held that “disrespectful language in a 

prisoner’s grievance is itself protected activity under the First Amendment.” 

Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (citing Bradley v. Hall, 64 

F.3d 1276, 1281–82 (9th Cir. 1995)). But to say that a category of speech is 

protected does not mean that all governmental limits on such speech are 

unconstitutional. In Turner v. Safley, the United States Supreme Court held that a 

prison regulation that restricts inmates’ constitutional rights could be 

constitutionally sound if it “is reasonably related to legitimate penological 

interests.” 482 U.S. 78, 89 (1987). The standard under Turner requires that a valid 

regulation must (1) be content neutral, (2) logically advance proper goals such as 

institutional security and safety, and (3) not be an exaggerated response in relation 

to those goals. Id. at 93. The Supreme Court later clarified that a prison regulation 

is considered to be content neutral if its purpose is “unrelated to the suppression of 

expression.” Thornburgh v. Abbott, 490 U.S. 401, 415 (1989) (quoting Procunier

v. Martinez, 416 U.S. 396, 413 (1974)). 

 In Brodheim we held squarely that no legitimate penological interest is 

served by prison rules prohibiting disrespectful language in grievances. Brodheim, 

584 F.3d at 1273. We reasoned that grievances were easy to insulate from other 

prisoners and from those prison officials who are the target of the grievance, so 
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that disrespectful language in a grievance did not raise any substantial security 

concern. Id. “A prisoner’s statement in a grievance need not have any more 

impact on prison security through the maintenance of respect than the prisoner’s 

unexpressed thoughts.” Id. (quoting Bradley 64 F.3d at 1281). 

Dahne contends that Brodheim clearly established only that it would be 

unconstitutional to punish a prisoner because of the content of a grievance, and not 

that it was unconstitutional to refuse the grievance because of that content. We 

reject this contention. The holding of Brodheim is not as narrow as Dahne 

contends. While it is true that Brodheim involved a warning or threat against a 

prisoner because of the content of a grievance, limiting Brodheim to only those 

types of cases would require that we ignore the Brodheim court’s reasoning, and 

that we disregard the broader First Amendment framework under Turner. Instead, 

we consider that a correct reading of the scope of the holding in Brodheim is that 

rules prohibiting disrespectful language do not serve a legitimate penological 

interest in the special context of prison grievances. Under the Turner framework, a 

prison may constrain the expression of prisoners for a non-content-based legitimate 

penological reason, such as avoiding hostilities or potential violence. But absent 

such a legitimate penological reason, content-based limitation of a prisoner’s 

expression is unconstitutional. Prisoners, just like those on the outside, have and 

value their First Amendment rights. 
5 

We clarify, however, that a prison official merely requesting that a prisoner 

rewrite a grievance is not a First Amendment violation. The prison could and did 

have valid grounds to make such a request in the interest of maintaining good 

relations between prisoners and guards. But, the violation here occurred when 

Dahne refused to allow the grievance to proceed through the administrative process

after Richey did not rewrite it in a way that satisfied Dahne’s sense of propriety. 

Functionally, allowing curtailment of the prison’s grievance process in this way 

would mean that only a grievance that conformed to Dahne’s personal conception 

of acceptable content could get meaningful review. That is the sort of contentbased discrimination that runs contrary to First Amendment protections. 

We also stress that the holding of Brodheim relates only to the narrow 

category of cases dealing with prison grievances. Nothing about Brodheim or our 

holding today should be construed as suggesting that prisoners have a right to 

publicly use disrespectful language in the broader prison environment. Such 

actions would plausibly raise legitimate penological concerns related to the 

security of guards and the desirability of maintaining harmonious relationships 

between guards and prisoners to the extent possible. Hence prisons will often be 

justified in curtailing that sort of public disrespectful behavior outside of the prison 

grievance process. 
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2. Turning to Richey’s retaliation claim, we hold that the district court 

erred by not granting summary judgment to Dahne on qualified immunity grounds. 

In Rhodes v. Robinson, we held that a retaliation claim has five elements:

(1) An assertion that a state actor took some adverse action 

against an inmate (2) because of (3) that prisoner’s 

protected conduct, and that such action (4) chilled the 

inmate’s exercise of his First Amendment rights, and (5) 

the action did not reasonably advance a legitimate 

correctional goal.

408 F.3d 559, 567–68 (9th Cir. 2005). 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. Richey claims that under Brodheim 

an “adverse regulatory action” can count as a retaliatory adverse action. And he 

argues that refusing to process the grievance is an adverse regulatory action. 

However, in context in Brodheim the “adverse regulatory action” language refers

to some additional punitive action or threat of punitive action over and above 

merely refusing to accept the grievance. Brodheim, 584 F.3d at 1270–71. Because 

of the lack of case law addressing the issue of whether not processing a grievance 

could be viewed as retaliation, it is not the case that “every reasonable official 

would have understood” that refusing a grievance violates a prisoner’s right against 

retaliation. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). We reverse the district 

court and grant summary judgment for Dahne on Richey’s retaliation claim on 

qualified immunity grounds.
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AFFIRMED IN PART AND REVERSED IN PART.