                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                             APR 18 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
MICHAEL JAMES EVANS,                             No. 16-35187

              Plaintiff-Appellant,               D.C. No. 3:11-cv-00272-ST

 v.
                                                 MEMORANDUM*
JAMES DEACON, T.R.C.I.; GREG
JONES, Housing Officer; GENELLE
MACKEY; GUY HALL; DOUG
ABBOTT; JOSE OLVERA,

              Defendants-Appellees.


                   Appeal from the United States District Court
                            for the District of Oregon
                  Janice M. Stewart, Magistrate Judge, Presiding

                        Argued and Submitted April 5, 2017
                               Pasadena, California

Before: CLIFTON and OWENS, Circuit Judges, and ANTOON,** District Judge.

      Plaintiff-Appellant Michael Evans appeals the district court’s order

dismissing two of his claims against prison officials and granting summary

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
judgment to a prison official as to a third claim. He also appeals the district court’s

order denying him leave to amend his complaint. We affirm in part, reverse in

part, and remand.

      1.     We affirm the district court’s dismissal of Evans’s procedural due

process challenge to his transfer to the Snake River Correctional Institute’s

Administrative Segregation Unit. At the time of Evans’s transfer on October 6,

2010, it was not clearly established that transferring an inmate for an indefinite

period into a housing unit with conditions that were atypical to the degree that

SRCIASU conditions allegedly differed from Oregon’s baseline prison conditions

would, without more, constitute an “atypical and significant hardship . . . in

relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,

484 (1995); cf. Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (identifying an

atypical and significant hardship in an indefinite transfer to a facility that, in

addition to having harsh conditions, also disqualified its inmates from parole

consideration). Accordingly, it was not clearly established that Evans had a liberty

interest protected by the Due Process Clause in avoiding such a transfer. See

Sandin, 515 U.S. at 484. Because Defendants did not have fair warning of any

liberty interest Evans may have possessed regarding the transfer, Defendants were




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entitled to qualified immunity. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir.

2003).

      2.     We also affirm the district court’s dismissal of Evans’s Eighth

Amendment failure to protect claim against Defendant Greg Jones. To state a

failure to protect claim, an inmate must allege “that he is incarcerated under

conditions posing a substantial risk of serious harm” and that the defendant prison

official acted with “‘deliberate indifference’ to inmate health or safety.” Farmer

v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 302

(1991)). The facts alleged in Evans’s complaint, which was prepared with the

assistance of pro bono counsel, were insufficient to move his claim over the line

from alleging “a risk of some harm to a substantial risk of serious harm.” See

Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1051 (9th Cir. 2002).

      Although the district court analyzed Jones’s motion to dismiss this claim in

the same section of its order in which it analyzed Evans’s motion for summary

judgment, contrary to Evans’s assertions, the district court did not apply the

summary judgment standard to the motion to dismiss. Evans also asserts that he

should have been given leave to amend this claim, but he points to nothing in the

record suggesting that he ever sought leave to amend the claim, and, regardless, the




                                          3
single amendment he proposes in his brief would still be insufficient to state a

claim.

         3.    The district court erred in granting Defendant Jose Olvera’s motion

for summary judgment on Evans’s First Amendment retaliation claim as it related

to the misconduct report that Olvera filed on December 8, 2011, in response to the

grievance that Evans sent to Captain Boston on December 7, 2011, in which Evans

described Olvera in disrespectful terms. To succeed on a retaliation claim, a

prisoner must demonstrate, among other things, that a prison official’s allegedly

retaliatory “action ‘did not reasonably advance a legitimate correctional goal.’”

Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting Rhodes v.

Robinson, 408 F.3d 559, 568 (9th Cir.2005)). The district court held that Evans

was unable to prove this element of his claim because it determined that keeping

disrespectful language out of prison grievances was a legitimate correctional goal.

         However, in 2009, we held that prohibiting disrespectful language in a

prisoner’s written grievance does not reasonably advance a legitimate correctional

goal, at least when the grievance is sent to someone other than the guard toward

whom the prisoner exhibits disrespect. Brodheim, 584 F.3d at 1272–73. We

reached a similar conclusion in an earlier case dealing with the same Oregon prison

rule that Evans was found to have violated by describing Olvera in disrespectful


                                           4
terms. Bradley v. Hall, 64 F.3d 1276, 1278–81 (9th Cir. 1995). Therefore, the

district court was incorrect in its conclusion that Olvera’s misconduct report

reasonably advanced a legitimate correctional goal.

      Olvera asks us to affirm the district court on the alternate grounds that

Evans’s grievance was not a communication protected by the First Amendment

because he transmitted the grievance on an “inmate communication form” instead

of a formal grievance form. However, “[t]he First Amendment guarantees a

prisoner a right to seek redress of grievances from prison authorities,” even outside

of formal grievance proceedings. Jones v. Williams, 791 F.3d 1023, 1035–36 (9th

Cir. 2015). This guarantee was clearly established prior to the events in question.

See Austin v. Terhune, 367 F.3d 1167, 1169–71 (9th Cir. 2004). Accordingly, we

reverse the district court’s grant of summary judgment to Olvera on Evans’s

retaliation claim as it relates to the events of December 2011. We remand for

further proceedings on this claim, as to which Olvera will be the only remaining

defendant.

      4.     The district court did not abuse its discretion when, just as the case

was drawing to a close after years of litigation, it denied Evans’s motion for leave

to file a supplemental complaint that would have added eight claims and seventeen

defendants to the case. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532


                                          5
(9th Cir. 2008) (“The decision of whether to grant leave to amend [is] within the

discretion of the district court, which may deny leave to amend due to ‘undue

delay, bad faith or dilatory motive on the part of the movant, . . . [or] futility of

amendment.’” (quoting Foman v. Davis, 371 U.S. 178, 182 (1962))). Regardless,

the damages allegations Evans seeks to add to his procedural due process claim

would be futile in light of our affirmance of the dismissal of that claim.

      5.     Evans’s contention that the district court judgment should be reversed

due to the absence from the record of exhibits that the district court reviewed in

camera is meritless. Evans does not claim that he even asked Defendants to

provide the exhibits for transmission to the Court pursuant to Ninth Circuit Rule

27-14. Furthermore, he has not demonstrated that any “defect in the record

materially affects the ability of the appeals court to review the alleged error.” See

Bergerco, U.S.A. v. Shipping Corp. of India, 896 F.2d 1210, 1217 (9th Cir. 1990).

      Each party will bear his own costs.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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