                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 23 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARK STEPHEN WICKLUND,                           No. 12-35294

              Plaintiff - Appellee,              D.C. No. 1:09-cv-00674-EJL-
                                                 CWD
       v.

IDAHO DEPARTMENT OF                              MEMORANDUM*
CORRECTIONS; IDAHO COMMISSION
OF PARDON AND PAROLE; STATE OF
IDAHO; KEN BENNETT; MOIRA
LYNCH; WILLIAM C. YOUNG;
BRANDON SUTHERLAND,

              Defendants - Appellants,

       and

SANE SOLUTIONS; TERRY REILLY
HEALTH SERVICES; MELISSA MESO;
MARK MCCULLOUGH; HEIDI HART,

              Defendants.

                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                           Submitted November 3, 2015**
                                 Portland, Oregon

Before: FISHER, BERZON and WATFORD, Circuit Judges.

      Defendant Ken Bennett, the Director of Probation and Parole for the Fourth

Judicial District of Idaho, appeals the district court’s denial of his motion for

summary judgment based on qualified immunity. We have jurisdiction under 28

U.S.C. § 1291, see Mattos v. Agarano, 661 F.3d 433, 439 (9th Cir. 2011) (en

banc), we review de novo, see id., and we affirm.

      We follow the two-pronged approach to qualified immunity claims

established in Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by

Pearson v. Callahan, 555 U.S. 223, 236 (2009). We first consider whether the

facts “[t]aken in the light most favorable to the party asserting the injury . . . show

the [defendant’s] conduct violated a constitutional right.” Id. If so, we then

consider whether the right was “clearly established” at the time of the alleged

violation. Id. Because, viewing the evidence in the light most favorable to

Wicklund, both prongs are satisfied, the district court properly denied summary

judgment.




        **
         The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                            2
      1. Probationer Mark Wicklund says Bennett violated his constitutional

rights by threatening to jail him if he pursued conduct protected by the First

Amendment. A viable claim of First Amendment retaliation in this context entails

five elements: (1) An assertion that a state actor took adverse action against the

plaintiff (2) because of (3) the plaintiff’s protected conduct, and that such action

(4) chilled the plaintiff’s exercise of his First Amendment rights, and (5) the action

did not reasonably advance a legitimate correctional goal. See Rhodes v. Robinson,

408 F.3d 559, 567-68 (9th Cir. 2005). Wicklund has presented evidence that, if

taken as true, would satisfy all five elements. “[T]he mere threat of harm can be an

adverse action, regardless of whether it is carried out because the threat itself can

have a chilling effect.” Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009)

(emphasis omitted). The alleged threat was made because of Wicklund’s First

Amendment-protected conduct in pursuing litigation against the county

prosecutor’s office and a polygrapher outside his court-ordered therapy sessions.1

Threatening to jail Wicklund “would chill or silence a person of ordinary firmness

from future First Amendment activities.” Id. at 1271 (emphasis omitted) (quoting

Rhodes, 408 F.3d at 568). Retaliation is “not a reasonable exercise of prison



      1
        Restraints on Wicklund’s disruptive behavior during his court-ordered
therapy sessions did not violate his First Amendment rights.

                                           3
authority and . . . [does] not serve any legitimate correctional goal.” Rizzo v.

Dawson, 778 F.2d 527, 532 (9th Cir. 1985). Therefore, Wicklund has presented

evidence of a constitutional violation.

      2. It was clearly established before 2009 that government officials could not

impose punishment for First Amendment-protected conduct. See Pratt v. Rowland,

65 F.3d 802, 806 (9th Cir. 1995) (“[T]he prohibition against retaliatory punishment

is ‘clearly established law’ in the Ninth Circuit, for qualified immunity

purposes.”). Wicklund’s First Amendment right to publicly air his grievances and

pursue litigation against the county prosecutor’s office and the polygrapher has

been clearly established for decades. See, e.g., Bill Johnson’s Restaurants, Inc. v.

NLRB, 461 U.S. 731, 741 (1983); Schroeder v. McDonald, 55 F.3d 454, 461 (9th

Cir. 1995); Rhodes, 408 F.3d at 567.

      AFFIRMED.




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