FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD H. BLAISDELL,

Plaintiff-Appellant, 

v.

C. FRAPPIEA,

Defendant-Appellee.

No. 10-16845

D.C. No.

2:08-cv-01462-JAT

OPINION

Appeal from the United States District Court

for the District of Arizona

James A. Teilborg, District Judge, Presiding

Argued and Submitted

April 16, 2013—San Francisco, California

Filed September 10, 2013

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain,

and N. Randy Smith, Circuit Judges.

Opinion by Judge O’Scannlain
2 BLAISDELL V. FRAPPIEA

SUMMARY*

Prisoner Civil Rights

The panel affirmed the district court’s summary judgment

and held that an inmate did not engage in constitutionally

protected activity when he served a prison official with a

summons and complaint on another inmate’s behalf.

Plaintiff alleged that a prison official retaliated against

him by issuing him a disciplinary report after he attempted to

serve her with a federal summons and complaint on behalf of

another inmate. The panel first held that the district court did

not err by determining that plaintiff waived his claim that his

prior litigation activity against the prison triggered retaliation

given his acknowledgment, in his own motion for summary

judgment, that the disciplinary report was not issued because

of his other litigation activities. 

The panel held that the access-to-court doctrine did not

provide plaintiff with constitutional protection. The panel

further held that because of the general incompatibility

between prison and free association, and because there was

no evidence of expressive association, the First Amendment

did not protect plaintiff’s attempted service of process on a

prison official. 

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
BLAISDELL V. FRAPPIEA 3

COUNSEL

Dawn Sestito, O’Melveny & Myers LLP, Los Angeles, CA,

argued the cause and filed the briefs for the plaintiffappellant. Mica Doctoroff, UCLA School of Law Ninth

Circuit Clinic, Los Angeles, CA, also argued the cause for the

plaintiff-appellant. With them on the briefs was Katharine S.

Mercer, O’Melveny & Myers LLP, Los Angeles, CA.

Nicholas D. Acedo, Struck Wieneke & Love, P.L.C.,

Chandler, Arizona, argued the cause and filed a supplemental

brief for the defendant-appellee. With him on the brief was

Daniel P. Struck, Struck Wieneke & Love, P.L.C, Chandler,

Arizona. Jaleh Najafi, Jones, Skelton & Hochuli, P.L.C,

Phoenix, Arizona, filed the original brief for the defendantappellant. With him on the brief were Eileen Dennis

GilBride, Jones, Skelton & Hochuli, P.L.C., Phoenix,

Arizona, and Daniel P. Struck, Jones, Skelton & Hochuli,

P.L.C., Phoenix, Arizona.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether an inmate engaged in

constitutionally protected activity when he served a prison

official with a summons and complaint on another inmate’s

behalf.
4 BLAISDELL V. FRAPPIEA

I

A

The State of Hawaii contracts with the Corrections

Corporation of America (“CCA”) to house some of its

prisoners within the Saguaro Correctional Center, a privately

operated prison in Eloy, Arizona.1 Richard Blaisdell is one of

those inmates. On April 23, 2008, Blaisdell visited Christina

Frappiea—the prison’s Classification Supervisor—to ask her

to notarize a document for a new lawsuit he planned to file

against the prison.2 This was not Blaisdell’s first attempt at

litigation. He had filed at least three lawsuits against the

prison and its officers since 2007. Frappiea notarized the

document.

As soon as Frappiea had finished, Blaisdell announced

that she had been “served” and handed her a summons and

complaint in a federal civil Racketeer Influenced and Corrupt

Organizations Act (“RICO”) suit prepared by another

prisoner: Anthony Gouveia. Blaisdell had agreed to serve

process as a favor to Gouveia and was not a party to his

lawsuit. The suit against Frappiea concerned her apparent

unwillingness to notarize a contract for Gouveia which

1 Because Blaisdell’s claim regarding retaliation was not conclusively

resolved until summary judgment, see infra Part I.B., we “draw all

reasonable inferences supported by the evidence in favor of [Blaisdell as]

the non-moving party.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002).

2 The classification supervisor’s job is to make recommendations about

inmate placement so that prisoners are “assigned to the appropriate job,

housing and rehabilitative programs.” The record is silent about whether

notarizing court documents was part of Frappiea’s official duties.
BLAISDELL V. FRAPPIEA 5

pertained to a lawsuit he had already filed in Mississippi

federal district court. After looking at the document,

Frappiea reportedly said: “Oh. Well, you can’t serve that. 

You’re a state prisoner.” Blaisdell claims he replied by

stating: “[T]his is not a state suit and I have every legal right

in the world to serve this to you. I am over 18, and I’m not a

party to the suit. And it’s not breaking any laws or any rules

or anything.”

Following this exchange of words, Frappiea prepared a

disciplinary report charging Blaisdell with Conspiracy,

Failure to Follow Rules, and “Violation of Federal, State or

Local Laws.” Under the prison rules inmates are not

permitted to possess another inmate’s property, including his

legal paperwork, without permission. The “Conspiracy” was

Blaisdell’s agreement to possess Gouveia’s summons and

complaint. As for the laws transgressed, Frappiea’s

disciplinary report references Arizona statutes that spell out

the requirements to act as a process server. Frappiea later

characterized Blaisdell’s legal violation as a failure to comply

with the screening provisions of the Prison Litigation Reform

Act (“PLRA”) before attempting service. See 28 U.S.C.

§ 1915A.3 A CCA hearing officer found Blaisdell guilty on

all three counts and sentenced him to sixty days of

administrative segregation.

B

Proceeding pro se, Blaisdell initiated the instant litigation

in Arizona Superior Court. The case was removed to federal

3 Frappiea has no formal legal education and acknowledged that her

characterization ofBlaisdell’s legal violation was a “good faith,” although

potentially inaccurate, interpretation of the PLRA.
6 BLAISDELL V. FRAPPIEA

district court where Blaisdell subsequently filed an amended

pro se complaint under 42 U.S.C. § 1983 containing four

counts. Count One claimed that his discipline in connection

with the events of April 23 had been unconstitutional

retaliation. Counts Two, Three, and Four asserted violations

of the Due Process Clause, Arizona state law, and the federal

Freedom of Information Act. He sought $10,000 in

compensatory and punitive damages.

Pursuant to the PLRA, 42 U.S.C. § 1997e(c), the district

court sua sponte screened the complaint, dismissing Counts

Two, Three, and Four. During its screening, the district court

perceived two distinct assertions within Count One. First, the

court identified an allegation of retaliation by Frappiea for

Blaisdell’s attempt to serve Gouveia’s lawsuit. Second, the

court identified a possible assertion that Frappiea had

prepared the disciplinary charge “to get even” with Blaisdell

for his own prior lawsuits against CCA and its officers. The

court’s screening order, while expressing the view that

Blaisdell’s service of process was not an actionable basis for

a retaliation claim, did not definitively screen that allegation. 

Instead, the order simply directed Frappiea to file an answer

as to Count One.

Following discovery, both sides moved for summary

judgment.4 Frappiea argued in her motion that (1) Blaisdell’s

“actions as a process server [did] not constitute protected

conduct” under the Constitution and (2) there was no causal

“nexus between the disciplinary report and [Blaisdell’s]

litigation activity.” The district court agreed that Blaisdell’s

service of process was not constitutionally protected. As for

Blaisdell’s own litigation activity, the court observed that, in

 

4

 Blaisdell’s cross motion for summary judgment was denied.
BLAISDELL V. FRAPPIEA 7

responding to Frappiea’s summary judgment briefing,

Blaisdell had disclaimed a claim for retaliation on that basis. 

The court concluded that “[f]or this reason alone,” any such

theory of retaliation necessarily failed.

Blaisdell timely appealed from the order granting

summary judgment to Frappiea and received court-appointed

counsel.

II

Blaisdell first argues that the district court erred in

determining that he waived the claim that his prior litigation

activity against the prison triggered retaliation.

Courts in this circuit have an obligation to give a liberal

construction to the filings of pro se litigants, especially when

they are civil rights claims by inmates. See Thomas v.

Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010); Bretz v.

Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). 

This rule relieves pro se litigants from the strict application

of procedural rules and demands that courts not hold missing

or inaccurate legal terminology or muddled draftsmanship

against them. See, e.g., Agyeman v. I.N.S., 296 F.3d 871, 877

(9th Cir. 2002) (“Albeit inartfully, Aygeman raised pro se his

due process claims . . . . [notwithstanding that] he did not use

the specific phrase ‘due process violation’. . . .’”). 

In this case, Blaisdell wrote in his summary judgment

briefing that “[t]he issue in this case is not whether Frappiea

wrote a false D.R. [disciplinary report] because of plaintiff’s

multiple lawsuits, it is because plaintiff legally served

Frappiea with a federal summons and complaint naming her

as a defendant in a Mississippi lawsuit.” (emphasis in
8 BLAISDELL V. FRAPPIEA

original). Through counsel, Blaisdell now argues that our

decision in Bretz and the rule of liberal construction compel

us to ignore his statement.

In Bretz, we construed a pro se claim “drafted in terms of

§ 1983” as arising instead under section 1985—a related

civil-rights provision. 773 F.2d at 1027 n.1. Blaisdell is not

asking us to identify which legal terminology describes his

cause of action; instead, he is asking us to take up on appeal

a claim which he clearly told the district court he was not

bringing. We decline to do so. See Zixiang Li v. Kerry, 710

F.3d 995, 1000 n.4 (9th Cir. 2013) (“[A] party waives an

argument by failing to make it before the district court . . . .”)

(quoting G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d

534, 538 (7th Cir. 2012) (alterations and omission in

original)).

Without resort to Orwellian “Newspeak,” liberal

construction cannot turn Blaisdell’s explanation about what

his “case is not” into a description about what his case is. In

part, we credit his disavowal because it conforms with how

he described his claim at other times during the litigation. He

used a form complaint designed to aid prisoners proceeding

pro se. When the form complaint prompted him to state the

right violated, Blaisdell wrote: “Retaliation against the

plaintiff for exercising his right to serve Federal Summons

and Complaint on Frappiea.”

5 Then, in his own motion for

summary judgment Blaisdell argued that “Frappiea wrote a

disciplinary report on plaintiff as a result of [p]laintiff’s

attempt to serve [d]efendant with a valid lawful federal

5

It is also salient that a claim based on Blaisdell’s own litigation would

never have been recognized were it not for the district court’s liberal

construction during screening.
BLAISDELL V. FRAPPIEA 9

summons and complaint” and stated that he was “entitled to

perform the only act he did and that was to serve Frappiea.”

Blaisdell’s “acknowledg[ment]that the disciplinaryreport

was not issued because of his other litigation activities”

compels the conclusion that Frappiea is entitled to summary

judgment on the retaliation claim to the extent it is based on

prior lawsuits.

III

Blaisdell’s remaining claim for retaliation therefore

hinges on whether he engaged in “protected conduct” when

he served process on another inmate’s behalf. Rhodes v.

Robinson, 408 F.3d 559, 567 (9th Cir. 2005).

Resolving this question requires us to wade into doctrinal

waters not often explored in detail by courts. Although

commonly referred to as claims for “First Amendment

retaliation,” id., such actions need not be tethered to the

speech or associational freedoms secured by that Bill of

Rights provision.6Instead—as an aspect of the

unconstitutional conditions doctrine—a claim for retaliation

can be based upon the theory that the government imposed a

burden on the plaintiff, more generally, “because he

exercise[d] a constitutional right.” Regan v. Taxation With

Representation of Washington, 461 U.S. 540, 545 (1983); see

also Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 674

(1996) (situating several cases alleging retaliation for

6 The First Amendment provides that “Congress shall make no law . . . .

abridging the freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a redress of

grievances.” U.S. Const. amend. I.
10 BLAISDELL V. FRAPPIEA

protected speech amidst the “modern unconstitutional

conditions doctrine” (internal quotation marks omitted)).7

Blaisdell directs us to two possible sources of constitutional

protection for his effort to serve process for his fellow inmate.

A

Blaisdell first points to a “prisoner’s right of meaningful

access to the courts.” Bradley v. Hall, 64 F.3d 1276, 1279

(9th Cir. 1995), overruled on other grounds by Shaw v.

Murphy, 532 U.S. 223, 230 n.2 (2001). In the context of

prisoners’ rights, the Supreme Court chiefly has located the

access-to-courts doctrine in the Constitution’s Due Process

and Equal Protection Clauses. See, e.g., Lewis v. Casey, 518

U.S. 343, 367 (1996) (Thomas, J., concurring) (observing that

over the decades the Court has characterized the right “as a

‘consequence’ of due process, as an ‘aspect’ of equal

protection, or as an ‘equal protection guarantee’” (internal

citations omitted)). At other times, the Court has described

the doctrine as part of every citizen’s First Amendment right

to petition the government. See Turner v. Safley, 482 U.S.

78, 84 (1987) (“[P]risoners retain the constitutional right to

petition the government for the redress of grievances . . . .”);

Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508,

7 Perhaps not any constitutional right will suffice, however. According

to one scholar, the unconstitutional conditions doctrine only safeguards

“those rights that depend on some sort of exercise of autonomous choice

by the rightholder, such as individual rights to speech, exercise of religion

or privacy, corporate rights to do interstate business or invoke federal

diversity jurisdiction, or state rights to self-government.” Kathleen M.

Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1426

(1989).
BLAISDELL V. FRAPPIEA 11

510 (1972) (“The right of access to the courts is indeed but

one aspect of the right of petition.”).8

Blaisdell argues that two access-to-courts principles cover

his conduct: (1) a right to pursue “litigation-related activities”

and (2) the right of legal assistance between inmates.

1

Prisoners have the “right[] to litigate without active

interference,” Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th

Cir. 2011), a guarantee that exists so prisoners have a “viable

mechanism to remedy prison injustices.” Rhodes v.

Robinson, 408 F.3d 559, 567 (9th Cir. 2005). The heart of the

anti-interference right is “the presentation of constitutional,

civil rights and habeas corpus claims,” Snyder v. Nolen, 380

F.3d 279, 291 (7th Cir. 2004).9 But, by virtue of their

“broader right to petition the government for a redress of

[their] grievances under the First Amendment,” Bradley, 64

F.3d at 1279, prisoners must also have opportunities to pursue

certain other types of civil litigation. See, e.g., Snyder, 380

F.3d at 291; Straub v. Monge, 815 F.2d 1467, 1470 (11th Cir.

1987); Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir.

1986).

8 The exercise of rights while in prison, though, is cabined. See Turner,

482 U.S. at 89 (“[W]hen a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably related to

legitimate penological interests.”).

9 The access-to-courts right originated with direct appeals from

convictions and habeas corpus and then was extended “only slightly, to

‘civil rights actions’—i.e., actions under 42 U.S.C. § 1983 to vindicate

‘basic constitutional rights.’” Lewis, 518 U.S. at 354.
12 BLAISDELL V. FRAPPIEA

The exact nature of Gouveia’s lawsuit is unknown. 

According to Blaisdell, it was “was a personal suit and had

nothing to do with the Saguaro Prison.” We will look past

this statement, however, since the complaint which Blaisdell

sought to serve did concern a perceived injustice at Saguaro:

Frappiea’s alleged refusal to notarize a contract for Gouveia

in connection with his underlying civil action. Therefore, we

assume for the sake of argument that Gouveia’s claim against

Frappiea is the type of civil suit covered by the First

Amendment’s right to petition.

Yet, the Supreme Court has cautioned that despite some

past imprecision in its articulation of the protection, accessto-courts rights do not exist in an “abstract, freestanding”

form. Lewis, 518 U.S. at 351. Instead, they are tethered to

principles of Article III standing. See id. (remarking that

“actual injury is apparent on the face of almost all the

opinions in the 35-year line of access-to-courts cases”).10 For

there to be a judicially cognizable injury, “the party before

[the court] must seek a remedy for a personal and tangible

harm.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013)

(emphasis added); see also New York v. Ferber, 458 U.S. 747,

767 (1982) (describing “the personal nature of constitutional

rights” as a “cardinal principle[] of our constitutional order”). 

Thus, while Gouveia and Blaisdell each have an access-tocourts right to file litigation from prison, they cannot

 

10 This reflects the fact that in our system of separated powers “it is not

the role of courts, but that of the political branches, to shape the

institutions of government in such fashion as to comply with the laws and

the Constitution.” Lewis, 518 U.S. at 349.
BLAISDELL V. FRAPPIEA 13

vicariously assert that protection on each other’s behalf.11

And because Blaisdell has no share in Gouveia’s “right to be

free from interference,” this aspect of the access-to-courts

doctrine cannot support his action. Silva, 658 F.3d at 1103.

2

Blaisdell next claims that Frappiea’s disciplinary report

was issued to retaliate against him for providing affirmative

legal assistance to his fellow inmate. See Johnson v. Avery,

393 U.S. 483, 490 (1969). “We have traditionally

differentiated between two types of access-to-court claims:

those involving prisoners’ right to affirmative assistance and

those involving prisoners’ rights to litigate without active

interference.” Silva, 658 F.3d at 1102. A close inspection of

Johnson and its progeny illustrates that, as with the access

doctrine already explored, Blaisdell misconceives the true

nature of the right to assistance.

Constitutional doctrine requires that inmates receive

affirmative assistance in the “preparation and filing” of

certain legal pleadings. Silva, 658 F.3d at 1102 (quoting

Bounds v. Smith, 430 U.S. 817, 828 (1977)). However, the

Constitution does not specify the form such assistance must

take. In Johnson, the Tennessee prison system had a

regulation barring inmates from advising or assisting each

11Because ofloose language in access-to-courts precedents before Lewis

this issue had divided the lower courts. Compare Adams v. James, 784

F.2d 1077, 1080 (11th Cir. 1986) (“In a non-class-action context a

prisoner has no standing to litigate another prisoner’s claim of denial of

access to the courts.”), with Rhodes v. Robinson, 612 F.2d 766, 769 (3d

Cir. 1979) (reading prior Supreme Court caselaw on access to courts as

“disregard[ing] the rule against Jus tertii, the vicarious assertion of

rights”).
14 BLAISDELL V. FRAPPIEA

other about legal matters. 393 U.S. at 485. The Court

invalidated that rule—not because prisoners have a

constitutional right to “the assistance of fellow inmates”—but

because Tennessee failed to provide any other mechanism for

helping inmates who were incapable of preparing legal papers

themselves. See id. (explaining that “unless and until the

State provides some reasonable alternative to assist inmates

in the preparation of petitions for post-conviction relief, it

may not validly enforce [the] regulation”); Smith v.

Maschner, 899 F.2d 940, 950 (10th Cir. 1990) (“Prison

inmates do not possess the right to a particular prisoner’s help

in preparing their legal materials, so long as prison officials

make other assistance available.”); Kunzelman v. Thompson,

799 F.2d 1172, 1179 (7th Cir. 1986) (holding that the “right

to receive assistance from other prisoners is conditioned upon

a showing that the inmates in question did not have adequate

access to the court without the help of an inmate writwriter”).

Confronted with arguments akin to Blaisdell’s in the years

since Johnson, the Supreme Court has made the contingent

nature of the protection for legal assistance explicit. See

Shaw, 532 U.S. at 231 n.3 (“Under our right-of-access

precedents, inmates have a right to receive legal advice from

other inmates only when it is a necessary means for ensuring

a reasonably adequate opportunity to present claimed

violations of fundamental constitutional rights to the courts.”

(quoting Lewis, 518 U.S. at 350–51 (internal quotation marks

omitted)). CCA’s Corporate and Facilities Policy provides

for a law library and for contract attorneys or paralegals to

help inmates prepare motions to proceed in forma pauperis,

motions for appointment of counsel, habeas petitions, and

§ 1983 suits. Blaisdell does not challenge either the

sufficiencyor the enforcement of that access-to-courts policy. 
BLAISDELL V. FRAPPIEA 15

He also acknowledges that the federal rules furnished

Gouveia with potential ways to effectuate service.12

Moreover, it is far from clear that “the right to provide legal

advice follows from a right to receive legal advice,” Shaw,

531 U.S. at 231 n.3, a crucial leap were Blaisdell to have

standing to claim the disciplinary charge impinged on the

exercise of his rights. Cf. Lewis, 518 U.S. at 351–52.

For all of these reasons, Blaisdell’s decision to serve

process on behalf of Gouveia cannot be grounded on the

access-to-court doctrine.

B

As an alternative vehicle for constitutional protection,

Blaisdell invokes the freedom of “association for the

advancement of beliefs and ideas.” NAACP v. Button, 371

U.S. 415, 430 (1963).13

12 Rule 4 provides that at a “plaintiff’s request, the court may order that

service be made by a United States marshal or deputy marshal or by a

person specially appointed by the court. The court must so order if the

plaintiff is authorized to proceed in forma pauperis under 28 U.S.C.

§ 1915.” Fed. R. Civ. P. 4(c). See generally Laurence v. A.T. Wall, 551

F.3d 92, 93–94 (1st Cir. 2008). The fact that Gouveia paid the filing fee

in lieu of seeking in forma pauperis designation does not automatically

give him an access-to-courts claim. At the very least, there would need

to be evidence that the court refused his request for service as well as

evidence that the prison furnished no alternative mechanism for inmate

service. Blaisdell has offered no such evidence.

13 Not expressly enumerated, this freedom is a consequence of the First

Amendment’s textual guarantees. See Roberts v. United States Jaycees,

468 U.S. 609, 622 (1984) (“An individual’s freedom to speak, to worship,

and to petition the government for the redress of grievances could not be

vigorously protected from interference by the State unless a correlative
16 BLAISDELL V. FRAPPIEA

Blaisdell cites Rizzo v. Dawson, 778 F.2d 527 (9th Cir.

1985) as support for the proposition that he has a viable

associational claim. In Rizzo, we held that “a ‘jailhouse

lawyer’ assisting other inmates with habeas petitions and

other federal actions” was engaging in expressive association

under the First Amendment. 778 F.2d at 529. Rizzo

provided his legal assistance during a prison-vocational

course; thus, we held that he could viably allege that his

forced transfer out of the course had been in retaliation for his

exercise of the constitutional right to associate. Blaisdell’s

own evidence, however, shows that he does not function as a

jailhouse lawyer, or anything approaching it. In his statement

of facts in support of summary judgment, he wrote: “All of

the points on accusingme of helping other inmates at Saguaro

are fictitious and false because I have not helped any other

[inmates] with their lawsuits at Saguaro.”14 Blaisdell further

represented having “had nothing to do with the drafting or

filing of Gouveia’s lawsuit.” Because Blaisdell does not

engage in the kind of activity which Rizzo held was protected,

that case is not controlling here.

In effect, Blaisdell encourages us to extend Rizzo and to

hold that service of process, divorced from substantive legal

assistance, qualifies as First Amendment association. Two

freedom to engage in group effort toward those ends were not also

guaranteed.”).

14 The portion of the record he cited in his appellate brief, ostensibly as

evidence that he offers legal assistance, does not put this representation at

issue. There, he discusses a disciplinary action which “accused [him] of

attempting to encourage Washington inmates to file lawsuits against CCA

for violation of their civil rights.” Blaisdell testified that while he might

have offhandedly stated “Well, sue them,” he could not “even remember

the incident.”
BLAISDELL V. FRAPPIEA 17

doctrinal developments since 1985 convince us that it does

not.

First, the Court has clarified that associational rights only

extend to groups engaged in expressive activities. See Boy

Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000); Villegas v.

City of Gilroy, 484 F.3d 1136, 1141 (9th Cir. 2007).

15

In

Dale, the Boy Scouts qualified as expressive because its

“general mission” was inculcating members with a set of

values “both expressly and by example.” 530 U.S. at 649–50. 

Similarly, fraternal and civic associations usually can invoke

the freedom of association. See, e.g., Roberts v. United States

Jaycees, 468 U.S. 609, 612 (1984) (national men’s

organization devoted to “genuine Americanism and civil

interest” was protected).

Unable to cite to these conventional modes of association,

Blaisdell simply asserts that civil rights litigation is “a form

of political expression.” Button, 371 U.S. at 429. In Button,

the NAACP had associational rights because it worked “to

vindicate the legal rights of members of the American Negro

community, [and] at the same time and perhaps more

importantly, ma[de] possible the distinctive contribution of a

minority group to the ideas and beliefs of our society.” 371

U.S. at 431. Such litigation was deemed political expression

and thus protected “political association.” Id. When the

Court held that the ACLU’s litigation also was protected, it

did so based on the ACLU’s “extensive educational and

lobbying activities” and involvement in public-interest cases

ranging from “political dissent, juvenile rights, prisoners’

15

In Villegas, we cabined a 1984 precedent that had declared that the

Hells Angels’ motorcycle club had associational rights without analyzing

this doctrinal requirement. Id. at 1141 n. 10.
18 BLAISDELL V. FRAPPIEA

rights, military law, amnesty, and privacy.” In re Primus,

436 U.S. 412, 427–28 (1978).

While inmates engaged in collective civil rights litigation

conceivably could claim to be expressively associating,

16

the

same cannot be said for the one-time service of process at

issue here. Service of process has no inherently expressive

dimension. Cf. Villegas, 484 F.3d at 1141 (“act of wearing

. . . vests adorned with a common insignia simply does not

amount to the sort of expressive conduct protected by the

First Amendment”). Instead, it merely is a procedural

mechanism for announcing that legal proceedings have

begun.

A second reason not to extend Rizzo is that its holding is

difficult to square with the Supreme Court’s subsequent

teachings on prisoners’ rights. See Pratt v. Rowland, 65 F.3d

802, 807 (9th Cir. 1995) (cautiously applying Rizzo in light of

later admonitions). As a general matter, the Court has

instructed that “freedom of association is among the rights

least compatible with incarceration.” Overton v. Bazzetta,

539 U.S. 126, 131 (2003). More specifically, the Court

overruled a decision of ours which—relying on Rizzo—held

that an inmate law clerk had heightened First Amendment

protection because he was a purveyor of legal assistance. See

Murphy v. Shaw 195 F.3d 1121, 1124–25 (9th Cir. 1999),

16 As a three-judge panel, we respect Rizzo as binding despite some

dissatisfaction with its reasoning. The Tenth Circuit authority that Rizzo

regarded as persuasive, strikes us as wrongly decided. See Owens v. Rush,

654 F.2d 1370, 1379 (10th Cir.1981) (concluding that by helping his wife

with her Title VII suit and “accompan[ying] [her] to her attorney’s office”

a husband came “within the activities held to be protected by the First

Amendment in NAACP v. Button”). Helping one’s spouse with a single

lawsuit does not transform the couple into an expressive association.
BLAISDELL V. FRAPPIEA 19

overruled by Shaw, 532 U.S. at 227, 230–32. Blaisdell

correctly notes that Shaw fell short of holding that prisoners

have no First Amendment rights when assisting each other

with legal matters. Shaw concerned a more discrete issue: it

held that deferential scrutiny still applies when courts assess

the validity of prison regulations affecting inmate legal

assistance. See 532 U.S. at 228. Yet, not only did the Court

express skepticism about the right we declared in Rizzo,

17

it

reminded us that: (1) “the constitutional rights that prisoners

possess are more limited in scope than the constitutional

rights held by individuals in society at large” and (2) “courts

are particularly ‘ill equipped’ to deal with” issues which arise

behind bars. Shaw, 532 U.S. at 229; see also id. at 228

(“Traditionally federal courts did not intervene in the internal

affairs of prisons and instead ‘adopted a broad hands-off

attitude toward problems of prison administration.’”).

Because of questions about Rizzo’s vitality, the general

incompatibility between prison and free association, and

because there is no evidence of expressive association, we

conclude that the First Amendment does not protect

Blaisdell’s attempted service of process on Frappiea.

17 The skepticism is apparent both in the unanimous majority and the

concurrence. See id. at 231 (explaining in dicta that “even if we were to

consider giving special protection to particular kinds ofspeech based upon

content, we would not do so for speech that includes legal advice”), id.

(remarking that “inmate law clerks are sometimes a menace to prison

discipline”) (internal quotation marks omitted); id. at 232 (Ginsburg, J.,

concurring) (“I agree with the Court that the NinthCircuit erred in holding

that the First Amendment secures to prisoners a freestanding right to

provide legal assistance to other inmates.”).
20 BLAISDELL V. FRAPPIEA

IV

As any alleged retaliation against Blaisdell was not rooted

in activity safeguarded by the Constitution, the district court

properly awarded summary judgment in favor of Frappiea.

AFFIRMED.