                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 LAMONT SHEPARD,                              No. 13-15554
           Plaintiff-Appellant,
                                                D.C. No.
                  v.                      1:09-cv-00809-BAM

 T. QUILLEN; J. WISE,
          Defendants-Appellees.                 OPINION


       Appeal from the United States District Court
           for the Eastern District of California
       Lawrence J. O’Neill, District Judge, Presiding

           Argued and Submitted August 12, 2015
                 San Francisco, California

                       Filed October 26, 2016

  Before: Alex Kozinski and Richard C. Tallman, Circuit
      Judges, and Douglas L. Rayes,* District Judge.

                 Opinion by Judge Kozinski;
                  Dissent by Judge Tallman




    *
       The Honorable Douglas L. Rayes, District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
2                       SHEPARD V. QUILLEN

                            SUMMARY**


                       Prisoner Civil Rights

    The panel reversed the district court’s summary judgment
in favor of a California corrections lieutenant in a California
state prisoner’s section 1983 action alleging that he was
transferred to administrative segregation in retaliation for
reporting that a corrections officer used excessive force
against him; and, in a memorandum disposition filed
concurrently with the opinion, affirmed a jury verdict on his
claim that the corrections officer used excessive force.

    Reversing the grant of summary judgment, the panel
rejected Corrections Lieutenant Wise’s claim that California
prison regulation Cal. Code Regs. tit. 15, § 3335(a), required
him to transfer plaintiff to administrative segregation as soon
as plaintiff alleged that he was assaulted by another
corrections officer. The panel held that plaintiff established
a genuine issue of material fact as to whether Wise retaliated
against him. Plaintiff had also shown that Wise was not
entitled to qualified immunity at this stage.

    In a memorandum disposition filed concurrently with its
opinion, the panel affirmed a jury verdict in favor of
corrections officer Quillen on plaintiff’s excessive force
claim.

   Dissenting, Judge Tallman stated that Lieutenant Wise’s
decision to transfer plaintiff into administrative segregation

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   SHEPARD V. QUILLEN                       3

fell squarely within the range of conduct that is protected by
qualified immunity.



                        COUNSEL

Javier Serrano (argued) and George C. Harris, Morrison &
Foerster LLP, San Francisco, California, for Plaintiff-
Appellant.

Misha Igra (argued), Supervising Deputy Attorney General;
Kamala D. Harris, Attorney General of California; Jonathan
L. Wolff, Senior Assistant Attorney General; Thomas S.
Patterson and Vickie P. Whitney, Supervising Deputy
Attorneys General; Office of the California Attorney General,
Sacramento, California; for Defendants-Appellees.
4                       SHEPARD V. QUILLEN

                              OPINION

KOZINSKI, Circuit Judge:

   We consider whether a prison official may place an
inmate in administrative segregation for reporting officer
misconduct.

                               FACTS1

    California Corrections Officer Quillen was doing rounds
when recently transferred inmate Lamont Shepard refused to
identify himself. Quillen and another officer removed
Shepard from his cell and escorted him to a holding room.
Shepard then told Lieutenant Wise that he needed medical
treatment because Quillen roughed him up during the escort.
Wise offered to “maybe . . . work something out” and
suggested Shepard recant his statement against Quillen, but
the inmate persisted. Wise replied that Shepard would be
placed in administrative segregation for reporting Quillen.
Shepard decided to go forward with his complaint. That
same day, he was transferred to a double cell in the

    1
      The facts are based on Shepard’s allegations, which we must take as
true at this stage of the proceedings. See Thomas v. Ponder, 611 F.3d
1144, 1149 (9th Cir. 2010). The district judge did not consider Shepard’s
statement of undisputed facts and opposition to defendants’ motion for
summary judgment because he believed them to be unattested. But at the
end of each of these documents, above Shepard’s signature, there is a
handwritten statement that reads: “I declare under penalty of perjury that
the foregoing is true and correct and is executed on March 4, 2012.”
Accordingly, the district court erred in failing to consider these
documents. See 28 U.S.C. § 1746 (unsworn statements are admissible as
long as attested to under penalty of perjury); Johnson v. Meltzer, 134 F.3d
1393, 1400 (9th Cir. 1998) (“[A] verified motion functions as an
affidavit.”).
                        SHEPARD V. QUILLEN                               5

Administrative Segregation Unit (ASU), where he spent
about three months.

    Shepard filed a section 1983 suit alleging that Wise
retaliated against him for reporting Quillen and that Quillen
used excessive force while escorting him to the holding
cell. Adopting the magistrate judge’s findings and
recommendations, the district court granted Wise’s motion
for summary judgment.2

                           DISCUSSION

    The district court determined that Shepard “failed to
establish a triable issue of material fact for his claim that
Defendant Wise retaliated against [him] by placing him in
administrative segregation” and that Wise was therefore
entitled to qualified immunity. See Sorrels v. McKee,
290 F.3d 965, 969 (9th Cir. 2002) (explaining that the rights-
violation prong of the qualified immunity analysis “mirrors
the substantive summary judgment decision on the merits”).
We begin with Shepard’s claim of a constitutional violation.
See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (noting
that “it is often beneficial” to analyze whether the relevant
facts make out a constitutional violation before determining
whether the right at issue is clearly established).

A. Whether a right was violated

   We have long recognized that a corrections officer may
not retaliate against a prisoner for exercising his First


    2
      With the parties’ consent, a magistrate judge presided over the trial
on Shepard’s excessive-force claim. We affirm the jury verdict for
Quillen in a memorandum disposition filed concurrently herewith.
6                   SHEPARD V. QUILLEN

Amendment right to report staff misconduct. Brodheim v.
Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). At the same time,
we must defer to reasonable decisions of prison officials. See
Turner v. Safley, 482 U.S. 78, 84–85 (1987); Rizzo v.
Dawson, 778 F.2d 527, 532 (9th Cir. 1985). When a prisoner
claims retaliation, we strike this balance by requiring him to
show that (1) “a state actor took some adverse action . . .
(2) because of (3) [the] prisoner’s protected conduct, . . . that
such action (4) chilled [his] exercise of his First Amendment
rights, and (5) the action did not reasonably advance a
legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d
559, 567–68 (9th Cir. 2005) (footnote omitted).

    Wise doesn’t dispute—nor could he—that Shepard has
established the first element. In Watison v. Carter, we found
that being placed in administrative segregation constitutes an
adverse action. 668 F.3d 1108, 1115 (9th Cir. 2012); see also
Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).
Indeed, Wise’s alleged statement that “I’m go [sic] send you
to ad/seg for reporting my officer,” is enough. As we
explained in Brodheim, “the mere threat of harm can be an
adverse action” in the retaliation context. 584 F.3d at 1270
(emphasis removed). Nor is there any doubt that Shepard’s
complaints about Quillen amounted to protected conduct. See
Austin, 367 F.3d at 1170–71 (quoting Hines v. Gomez,
108 F.3d 265, 269 (9th Cir. 1997)). Wise argues, however,
that there are no genuine factual disputes as to the remaining
three elements of Shepard’s claim.

    1. To establish causation, Shepard must “put forth
evidence of retaliatory motive, that, taken in the light most
favorable to him, presents a genuine issue of material fact as
to [Wise’s] intent” in sending Shepard to administrative
segregation. Brodheim, 584 F.3d at 1271 (quoting Bruce v.
                        SHEPARD V. QUILLEN                               7

Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003)); see Hartman v.
Moore, 547 U.S. 250, 259 (2006) (explaining that a section
1983 plaintiff “must show a causal connection between a
defendant’s retaliatory animus and subsequent injury in any
sort of retaliation action”). Wise claims a California prison
regulation required him to transfer Shepard to administrative
segregation as soon as Shepard alleged Quillen assaulted him.
That regulation provided:

         When an inmate’s presence in an institution’s
         general inmate population presents an
         immediate threat to the safety of the inmate or
         others, endangers institution security or
         jeopardizes the integrity of an investigation of
         an alleged serious misconduct or criminal
         activity, the inmate shall be immediately
         removed from general population and be
         placed in administrative segregation.

Cal. Code Regs. tit. 15, § 3335(a) (2005).3 Wise argues that
section 3335 is nondiscretionary as applied to prisoners who
allege serious staff misconduct. The reasoning goes like this:
An allegation of serious officer misconduct triggers an
investigation. An inmate’s presence in the general population
will jeopardize that investigation. Therefore, Wise didn’t
place Shepard in administrative segregation because of any
protected conduct. He did it to comply with the regulation.

   But section 3335 says nothing about reports of staff
misconduct. The regulation lists three predicates that, if met,
require placing an inmate in administrative segregation: threat

   3
     The current version of section 3335 is substantially similar. See Cal.
Code Regs. tit. 15, § 3335 (2016).
8                   SHEPARD V. QUILLEN

to safety, endangering institutional security and jeopardizing
the integrity of an investigation. Id. An allegation of serious
staff misconduct could trigger one of these predicates, but
nowhere does the regulation direct prison officials to place all
inmates who complain about mistreatment in administrative
segregation. When an inmate complains of staff misconduct,
the official must determine whether leaving the inmate in the
general population will create safety, security or
investigation-related concerns.

    Perhaps California prison officials treat section 3335 as
nondiscretionary in circumstances such as these; or, perhaps,
no matter the actual policy, Wise believed the regulation was
nondiscretionary. But the only evidence of either possibility
comes from Wise himself. He claims in an interrogatory
response that “[prison] policy provides that, when an inmate
makes a staff complaint, the inmate is to be placed in
administrative segregation for his own protection pending an
investigation . . . . [A]cting pursuant to this policy, I ordered
that [Shepard] be placed into administrative segregation
pending an investigation of his allegations.” In another
response, Wise adds: “This transfer was not done as a
reprisal against the plaintiff or in retaliation for having made
claims of staff misconduct.” Wise’s version of events might
convince a jury that he bore no retaliatory animus when he
threatened to transfer Shepard to administrative segregation
and then followed through on the threat. But it does not
establish conclusively that the policy Wise references actually
exists.

    There is, moreover, evidence in the record casting doubt
on Wise’s explanation. For one, Shepard has shown
“proximity in time between protected speech and the alleged
retaliation.” McCollum v. Cal. Dep’t of Corrs. & Rehab.,
                      SHEPARD V. QUILLEN                            9

647 F.3d 870, 882 (9th Cir. 2011) (quoting Allen v. Iranon,
283 F.3d 1070, 1077 (9th Cir. 2002)). Wise ordered the
transfer on the same day that Shepard complained about
Quillen. Wise also undoubtedly “expressed opposition to the
speech.” Id. (quoting Allen, 283 F.3d at 1077); see also Jones
v. Williams, 791 F.3d 1023, 1036 (9th Cir. 2015). When
Shepard insisted he needed medical treatment, Wise allegedly
offered to “work something out” and nudged Shepard to
recant his allegation of abuse. When Shepard persisted, Wise
said he was going to send Shepard to administrative
segregation “for reporting [his] officer.”

    There’s more. As required by regulation, Wise justified
his decision on a “114-D” form. See Cal. Code Regs. tit. 15,
§ 3336(a) (2005).4 The form provides various explanations
as to why Shepard was placed in administrative segregation,
only some of which support Wise’s explanation. At the top
of the form, under the heading “Reason(s) for Placement,”
three boxes are checked: “presents an immediate threat to the
safety of self or others”; “jeopardizes integrity of an
investigation”; and “endangers institution security.” Next,
above Wise’s signature, a typed message reads: “[Y]ou
alleged that Officer T. Quillen physically assaulted you.
Based on this, your presence on this facility jeopardizes the
integrity of an investigation into this matter.” Below Wise’s
signature, there is a check mark in a “yes” box next to the
phrase “ASU placement is for disciplinary reasons.” This
supports Shepard’s argument that he was being placed in
administrative segregation as punishment rather than to
protect an investigation. Further down the form is a section


    4
     The requirement that the prison justify a prisoner’s placement in
administrative segregation is now codified at Cal. Code Regs. tit. 15,
§ 3335(b) (2016).
10                   SHEPARD V. QUILLEN

signed by an “administrative reviewer,” Captain Diaz. The
handwritten words “security threat” appear just above Diaz’s
signature in a box labeled “Reason for Decision.” This too is
inconsistent with Wise’s explanation and thus supports the
inference that reliance on section 3335 was a pretext.

    Although a jury could conclude that the form negates
Shepard’s claim of retaliatory animus, there is sufficient
ambiguity for a jury to find otherwise. The form features four
different reasons, articulated by at least two different officers,
for Shepard’s confinement. Only two of those reasons—that
Shepard’s presence in the general population might
jeopardize an investigation and his own safety—are
consistent with Wise’s story on appeal. And in explaining
how the former reason justifies the transfer, Wise explicitly
cites Shepard’s grievance. Cf. Jones, 791 F.3d at 1036 (“The
face of the daily failure form . . . cites Jones’s discrimination
complaints and threats to sue as reasons for its issuance
. . . .”). The form’s inconsistences could help Shepard
convince a jury that Wise’s reason for initiating the transfer
was pretextual and that Wise “abused [section 3335 and the
Form 114-D procedure] as a cover or a ruse to silence and
punish” Shepard. Bruce, 351 F.3d at 1289.

    2. Wise also argues that placing an inmate in
administrative segregation following a complaint of abuse by
staff isn’t the kind of adverse action that chills an inmate’s
exercise of his First Amendment rights. In his view, the
policy he claims he was following encourages complaints of
staff misconduct by ensuring that the inmate will be separated
from his alleged abuser while an investigation takes place.
But for an inmate to show a chilling effect, the harm need
only be “more than minimal.” Watison, 668 F.3d at 1114.
                         SHEPARD V. QUILLEN                                 11

    In fact, the harm suffered by prisoners in administrative
segregation is significantly more than minimal. According to
Shepard, his time in the ASU featured reduced access to
phone calls and recreation. He also says he was confined to
his cell for “all but 2 hours per week.” This is plausible.
Prior to 2013,5 inmates in California ASUs were deprived of
all family visits; their only access to recreation or
entertainment was “[y]ard access limited by local
institution/facility security needs”; and they could use the
phone “on an emergency basis only as determined by
institution/facility staff.” Coleman v. Brown, 28 F. Supp. 3d
1068, 1096 (E.D. Cal. 2014). District Judge Karlton,
deeming ASU conditions to be “harsh, restrictive and non-
therapeutic,” found that keeping mentally ill inmates there for
non-disciplinary reasons violated their Eighth Amendment
rights. Id. at 1099.6

    Just last term, Justice Kennedy wrote about the horrors of
solitary confinement, concluding that “[y]ears on end of near-
total isolation exact a terrible price.” See Davis v. Ayala,
135 S. Ct. 2187, 2208–10 (2015) (Kennedy, J., concurring).
He was prompted to do so after learning that the death-row
habeas petitioner before him had been isolated in a one-
person cell for the “great majority of his more than 25 years


    5
        The events in this case took place in 2008.
    6
         The state amended its regulations in 2013 to place fewer restrictions
on inmates such as ASU residents who are in “Non-Disciplinary
Segregation.” Coleman, 28 F. Supp. 3d at 1096. But even with those
amendments, inmates “are still subject to several significant restrictions
. . . including no contact visits, significant limits on access to both exercise
yards and dayroom, eating all meals in their cells, and being placed in
handcuffs and restraints when being moved outside their cells.” Id. at
1097.
12                  SHEPARD V. QUILLEN

in custody.” Id. at 2208. Shepard’s situation was not
identical: He spent his time in a double cell and was released
within three months. But at the time Wise threatened to
transfer Shepard, there was no indication that he’d have a
cellmate, nor did Wise give Shepard a timeline for his
eventual transfer back to the general population. It was only
after recording a complaint that Shepard was told he would be
“placed in the ASU pending the conclusion of an
investigation” into Quillen.

    Shepard thus faced the possibility of near-total isolation
for all but a few hours a week, with little hope for visits,
phone calls and recreational opportunities, all for
complaining that he was assaulted by a corrections officer.
A jury could certainly find that the threat of administrative
segregation would chill a “person of ordinary firmness” from
complaining about officer misconduct. Rhodes, 408 F.3d at
569.

    3. To argue that Shepard’s transfer reasonably advanced
legitimate correctional goals, Wise merely borrows generic
justifications from section 3335, arguing that Shepard was
placed in administrative segregation to “protect[] the integrity
of the investigation [into Quillen] and to keep Shepard safe.”
There’s no doubt that corrections officers should strive for
unharmed prisoners and untainted investigations. See Hewitt
v. Helms, 459 U.S. 460, 473 (1983), abrogated on other
grounds by Sandin v. Conner, 515 U.S. 472 (1995). The
question is whether transferring Shepard in this circumstance
reasonably advanced such goals.

    In Bruce, we explained that “prison officials may not
defeat a retaliation claim on summary judgment simply by
articulating a general justification for a neutral process, when
                       SHEPARD V. QUILLEN                             13

there is a genuine issue of material fact as to whether the
action was taken in retaliation for the exercise of a
constitutional right.” 351 F.3d at 1289. Wise has pointed
only to section 3335, thus offering merely a generic
justification. He hasn’t presented evidence that there were
any witnesses whom Shepard could have improperly
influenced had he been returned to the general population,
though the dissent relies on that justification, see dissent at
21, 23. Nor has Wise offered a reason as to why Shepard
could not have been transferred to a different cell block where
he would have been kept away from Quillen and any
witnesses. All Wise tells us is that Shepard was on
“orientation status” and therefore belonged in the orientation
pod. See Brodheim, 584 F.3d at 1272 (instructing courts to
consider whether there are “ready alternatives available to the
prison for achieving the governmental objectives” (internal
quotation marks omitted)). And the internally inconsistent
114-D suggests that transferring Shepard was retaliatory
rather than reasonably designed to protect Shepard or the
investigation.7 See Rizzo, 778 F.2d at 532.

    Finally, Wise points out that a prison committee later
reviewed the transfer and ordered that Shepard remain in
administrative segregation until the investigation into Quillen


    7
       The dissent claims that we “ignore[] the legitimate institutional
concern that we don’t want inmates employing bogus staff complaints as
a way to manipulate staff or to effectuate a transfer to a more desirable
housing unit.” Dissent at 22; see also dissent at 23–24. Wise never raised
this justification for Shepard’s transfer to administrative segregation as
opposed to some other form of separation from Quillen during the
investigation. And even if we accept the concern as relevant here, Wise’s
actions could still be improperly motivated by retaliation rather than the
legitimate penological purpose. Shepard has raised a triable issue of fact
on this point.
14                  SHEPARD V. QUILLEN

concluded. The dissent argues that if “the evidence suggested
otherwise, the committee would have reversed [the] decision”
to transfer Shepard to administrative segregation. Dissent at
23. But the review committee was considering whether the
reason for the transfer was sufficient, not whether it was
motivated by a desire to retaliate. As Bruce recognized, a
prison official who uses a valid procedure as subterfuge to
obscure retaliation “cannot assert that [his action] served a
valid penological purpose, even though [the prisoner] may
have arguably ended up where he belonged.” 351 F.3d at
1289 (emphasis removed).

    Shepard does not challenge the constitutionality of section
3335, which, as he recognizes, “ha[s] nothing to do with
placing an inmate in ad seg for making allegations.” On this
record, we cannot conclude whether officers automatically
apply the regulation to all inmates who allege serious staff
misconduct. But we seriously doubt that such a policy, if it
in fact exists, would withstand constitutional scrutiny. Cf.
Fair Housing Council of San Fernando Valley v.
Roommate.com, LLC, 666 F.3d 1216, 1222 (9th Cir. 2012)
(explaining that when a statute “can reasonably be read” in
two ways, “we can and must choose the construction that
avoids raising constitutional concerns”). Inmates must be
able to complain about staff; doing so provides a crucial
check against those who are in a position to abuse them.
Forcing inmates to choose between exercising that
constitutional right and going into administrative segregation
for an indefinite period of time impermissibly burdens that
right.
                        SHEPARD V. QUILLEN                               15

B. Whether Shepard’s right was clearly established

     Wise may nevertheless be entitled to qualified immunity
if the right at issue was not “clearly established at the time of
the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2080 (2011) (internal quotation marks omitted). The
district court didn’t reach this question, but Wise urges us to
consider it as an alternative ground for affirming. See
Campbell v. Wash. Dep’t of Soc. & Health Servs., 671 F.3d
837, 842 n.4 (9th Cir. 2011) (“We can affirm on any ground
supported by the record.”). Because the parties have briefed
the issue, we consider it here.8

    A prisoner’s general right against retaliatory punishment
was clearly established well before Wise transferred Shepard
to administrative segregation in 2008. E.g., Rhodes, 408 F.3d
at 569. Nor was there any question that Shepard was engaged
in protected conduct and that he was subject to the type of
adverse action that would chill speech. See Austin, 367 F.3d
at 1170–71 (allowing a retaliation claim to go forward when
the harm alleged was placement in administrative
segregation). But to overcome qualified immunity, Shepard
must show that, as to the precise conduct at issue, “existing
precedent . . . placed the . . . constitutional question beyond
debate.” al-Kidd, 131 S. Ct. at 2083. Because the analysis of
a retaliation claim is largely subjective, it’s difficult to
determine at the summary judgment stage whether a

    8
       The district court’s only basis for finding qualified immunity was
that “Wise did not violate [Shepard’s] constitutional rights.” We thus do
not fault Shepard for failing to address the “clearly established” prong of
the qualified immunity analysis in his opening brief. It is Wise who urges
us to affirm on a ground not addressed below; thus, Shepard’s “failure to
raise the issue . . . did not prejudice [Wise’s] defense.” Alcaraz v. I.N.S.,
384 F.3d 1150, 1161 (9th Cir. 2004).
16                  SHEPARD V. QUILLEN

reasonable officer in Wise’s position would have known he
was violating the law. As we have explained, a jury could
determine that Wise was motivated by retaliatory animus.
But a jury could also conclude that Wise was relying on what
he reasonably thought was a prison policy. In the latter
circumstance he wouldn’t have violated any right, let alone a
clearly established one. But in the former, Wise would have
been “knowingly violat[ing] the law.” See al-Kidd, 131 S. Ct.
at 2085.

    Nor, assuming Shepard’s version of events is true, can
Wise claim that he could have reasonably believed his
conduct was lawful because he was advancing a legitimate
penological goal by complying with section 3335. See
Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995);
see also DiRuzza v. City of Tehana, 206 F.3d 1304, 1314 (9th
Cir. 2000) (“For purposes of summary judgment on the
question of qualified immunity . . . we must presume the facts
to be those most favorable to the non-moving party.”). As we
have explained, there’s virtually no evidence that Shepard
needed to be transferred out of the general population for his
own safety or to preserve the integrity of an investigation.
See supra at 13.

    Wise argues that because section 3335 mandates placing
a prisoner in administrative segregation following a
complaint, he could not have been on notice that his conduct
was unlawful; the dissent echoes Wise’s reading of the
regulation, dissent at 25. But the regulation does no such
thing, see supra at 7–8, let alone authorize prison officials to
retaliate against prisoners for complaining about officers. No
reasonable prison official could read the regulation in that
way, and Wise has offered no evidence that any other official
did so, see supra at 8. Considering the substantial chilling
                    SHEPARD V. QUILLEN                        17

effect that such a reading would have on the long established
right of prisoners to seek redress of grievances, Cruz v. Beto,
405 U.S. 319, 321 (1972); O’Keefe v. Van Boening, 82 F.3d
322, 325 (9th Cir. 1996), this interpretation doesn’t even
“pass[] the laugh test”; its illegality would be “so obvious that
any prison official involved in enforcing it should have
known he was breaking the law.” Sorrels, 290 F.3d at 971.

    In 2003, five years before the events at issue, we followed
“other circuits [in] holding that prison officials may not
defeat a retaliation claim . . . simply by articulating a general
justification for a neutral process, when there is a genuine
issue of material fact as to whether the action was taken in
retaliation for the exercise of a constitutional right.” Bruce,
351 F.3d at 1289. Those circuits have stated their rule even
more bluntly, holding that the “policy [against retaliation]
applies even where the action taken . . . would otherwise be
permissible.” Smith v. Maschner, 899 F.2d 940, 948 (10th
Cir. 1990); accord Woods v. Smith, 60 F.3d 1161, 1165 (5th
Cir. 1995). Bruce clearly established that prison officials
may not abuse a valid procedure “as a cover or a ruse to
silence and punish” an inmate. 351 F.3d at 1289.
Accordingly, the contours of Shepard’s right against
retaliation were “sufficiently clear that a reasonable official”
in Wise’s position would have understood “that what he
[was] doing violate[d] that right.” Anderson v. Creighton,
483 U.S. 635, 640 (1987). Wise may have done just what
Bruce prohibits. Resolution of the disputed factual issues is
thus “critical to a proper determination of [Wise’s]
entitlement to qualified immunity.” Glenn v. Wash. Cty.,
673 F.3d 864, 870 & n.7 (9th Cir. 2011); see also Sloman v.
Tadlock, 21 F.3d 1462, 1468 (9th Cir. 1994) (noting a jury
might be “best suited to determine the reasonableness of an
18                  SHEPARD V. QUILLEN

officer’s conduct in light of the factual context in which it
takes place”).

                        *     *     *

    Shepard has established a genuine issue of material fact
as to whether Wise retaliated against him. He has also shown
that Wise isn’t entitled to qualified immunity at this stage.
Accordingly, we reverse the district court’s grant of summary
judgment in Wise’s favor.

  AFFIRMED in part, REVERSED in part and
REMANDED.

   Costs to Shepard against Wise and to Quillen against
Shepard.



TALLMAN, Circuit Judge, dissenting:

    Running a prison is an “extraordinarily difficult
undertaking.” Wolff v. McDonnell, 418 U.S. 539, 566 (1974).
Prison administrators, tasked with managing a “volatile
environment,” need flexibility to make on-the-ground
judgment calls relating to inmate safety and maintaining
order in the institution. Sandin v. Conner, 515 U.S. 472, 482
(1995). That includes having in place policies and procedures
to address complaints lodged against staff by inmates so that
inmates cannot manipulate the system for improper reasons.
It comes as no surprise that the Supreme Court has time and
again reminded us that courts are “ill equipped” to address the
“increasingly urgent problems” facing prisons. Turner v.
Safley, 482 U.S. 78, 84 (1984) (citation omitted). This case
                    SHEPARD V. QUILLEN                      19

illustrates why we need to be careful before interfering in the
way a prison is run.

    Today, the majority denies Lieutenant Wise qualified
immunity despite his reliance on a legitimate California
prison regulation authorizing the transfer of an inmate into
administrative segregation after receiving a complaint against
a correctional officer that alleged serious misconduct. In my
view, the majority decision improperly entangles itself in the
“day-to-day management of [Corcoran State] prison.”
Sandin, 515 U.S. at 482. Because Lieutenant Wise is entitled
to qualified immunity for reasonably following prison policy,
I respectfully dissent.

                              I

    The First Amendment prohibits prison officials from
retaliating against prisoners for exercising their First
Amendment rights. See Bruce v. Ylst, 351 F.3d 1283, 1288
(9th Cir. 2003). A prisoner retaliation claim consists of five
elements: “(1) [a]n 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.” Rhodes v. Robinson, 408 F.3d 559,
567–68 (9th Cir. 2004). To survive a motion for summary
judgment, a plaintiff must demonstrate a triable issue of
material fact on each element. Brodheim v. Cry, 584 F.3d
1262, 1269 n.3 (9th Cir. 2009). In evaluating whether the
plaintiff has met this burden, the court “should ‘afford
appropriate deference and flexibility’ to prison officials.”
Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (quoting
Sandin, 515 U.S. at 482).
20                  SHEPARD V. QUILLEN

    The majority concludes that inmate Shepard demonstrated
a triable issue of material fact that his constitutional rights
were violated when Lieutenant Wise (the watch commander)
transferred him to administrative segregation following the
lodging of his complaint against another officer. Maj. Op. at
5–14. I disagree. The record is not sufficient to establish that
Shepard’s transfer to administrative segregation did not
“advance legitimate penological goals, such as preserving
institutional order and discipline.” Bruce, 351 F.3d at 1288
(quoting Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.
1994)).

    Lieutenant Wise maintains that he transferred Shepard to
administrative segregation by following a California
Department of Corrections and Rehabilitation (CDCR)
regulation designed to protect prisoners and ensure the
integrity of internal investigations. This regulation provides:

       When an inmate’s presence in an institution’s
       general inmate population presents an
       immediate threat to the safety of the inmate or
       others, endangers institution security or
       jeopardizes the integrity of an investigation of
       an alleged serious misconduct or criminal
       activity, the inmate shall be immediately
       removed from general population and be
       placed in administrative segregation.

Cal. Code Regs. Tit. 15, § 3335(a) (2005).

    Shepard’s transfer into administrative segregation
occurred immediately after he reported that Officer Quillen
(assigned to his housing unit) had used excessive force after
Shepard refused to identify himself during a cell count,
                    SHEPARD V. QUILLEN                      21

necessitating removing him to a nearby holding cell for the
violation. Lieutenant Wise’s decision to separate Shepard
from Officer Quillen was in conformance with the prison
regulation and made in furtherance of a legitimate
correctional goal.

    If Shepard had not been transferred into administrative
segregation, he would have been left in the same housing unit
with Officer Quillen, the officer against whom Shepard had
complained. And if Shepard’s allegations were true, and
Officer Quillen employed excessive force in moving him, it
was only reasonable to separate Shepard from Officer Quillen
to ensure Shepard’s continued safety. Shepard’s transfer also
protected the integrity of the prison’s internal investigation
into Officer Quillen’s misconduct by taking away any
opportunity for Officer Quillen to pressure Shepard to recant
his allegations or to prevent Shepard from improperly
importuning other inmate witnesses prior to obtaining witness
statements.

    In short, Lieutenant Wise received a complaint that one of
his correctional officers had engaged in abusive misconduct.
Knowing this, Lieutenant Wise made a judgment call:
Shepard’s continued presence in his housing unit “present[ed]
an immediate threat to [Shepard’s] safety” and “jeopardize[d]
the integrity of an investigation” into Officer Quillen’s
alleged misconduct. Cal. Code Regs. Tit. 15, § 3335(a)
(2005). Lieutenant Wise properly followed prison policy and
transferred Shepard into administrative segregation in
furtherance of those legitimate penological goals. A
reasonable correctional supervisor would have done the same.

    The majority suggests that Lieutenant Wise relied on the
prison regulation as a pretext to retaliate against Shepard for
22                  SHEPARD V. QUILLEN

reporting Officer Quillen. Maj. Op. at 8–10; see Bruce,
351 F.3d at 1289 (“[I]f . . . the defendants abused [prison]
procedure as a cover or ruse to silence and punish [the
plaintiff] because he filed grievances, they cannot assert that
[their actions] served a valid penological purpose[.]”). I
disagree. The majority ignores the legitimate institutional
concern that we don’t want inmates employing bogus staff
complaints as a way to manipulate staff or to effectuate a
transfer to a more desirable housing unit.

    Lieutenant Wise initiated the process to transfer Shepard
to administrative segregation on the same day that Shepard
complained about Officer Quillen, July 15, 2008. The
majority suggests this close temporal proximity between
Shepard’s speech and Lieutenant Wise’s adverse action is
evidence of retaliatory motive. Maj. Op. at 8–9; see
McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d 870,
882 (9th Cir. 2011). Not here. If the understandable
penological goals are to be effectuated, the transfer must
occur immediately.

    That is why the timing evidence does not suggest an
improper motive, but rather supports Lieutenant Wise’s
claims that Shepard’s transfer served a legitimate correctional
goal. Logically, § 3335 protects a complaining inmate from
staff reprisals only if the inmate is transferred immediately
after making a complaint against a guard in his housing unit.
And here, prison officials kept Shepard in administrative
segregation throughout the entire investigation of Officer
Quillen, transferring him back to the general population
shortly after the investigation closed. See Cal. Code Regs.
Tit. 15, § 3339(a) (“Release from administrative segregation
shall occur at the earliest possible time in keeping with the
                    SHEPARD V. QUILLEN                      23

. . . reasons for the inmate’s placement in administrative
segregation.”).

    Shepard’s placement notice, which both Lieutenant Wise
and Shepard signed on July 17, 2008, states: “[Y]ou . . . are
being removed from the Facility III-A General Population
and being placed in the Administrative Segregation Unit
(ASU) pending an investigation into your allegations of staff
misconduct.” Boxes checked on the form for “Reason(s) for
Placement” indicate that Shepard was transferred because he
“presents an immediate threat to the safety of self or others,”
“jeopardizes [the] integrity of an investigation of alleged
serious misconduct,” and “endangers institution security.”

    Lieutenant Wise’s transfer decision was reviewed and
endorsed by a prison committee on July 23, 2008. The
committee noted, “‘S’ was placed in ASU [from] Facility 3A,
pending investigation into allegation of alleged staff
misconduct by Officer T. Quillen as ‘S’ alleged that ‘S’ was
physically assaulted by him.” Even construing the evidence
in the light most favorable to Shepard, following the prison
policy furthered the legitimate correctional goal of shielding
Shepard from any reprisal and making sure the investigation
was not improperly colored by Shepard’s continued presence
in the unit housing the witnesses. Had the evidence
suggested otherwise, the committee would have reversed that
decision.

    Finally, the majority faults Lieutenant Wise for not
“offer[ing] a reason as to why Shepard could not have been
transferred to a different cell block where he would have been
kept away from Quillen and any witnesses.” Maj. Op. at 13.
This is not the standard. Any suggestion that a prison official
must transfer a complaining inmate to a different pod every
24                  SHEPARD V. QUILLEN

time an inmate lodges an allegation of staff misconduct
shows little regard for the “inordinately difficult” task of
running a prison—one that is “peculiarly within the province
of the legislative and executive branches of government.”
Turner, 482 U.S. at 85. Such a standard would certainly
incentivize a flurry of frivolous complaints by prison inmates
hoping to be transferred into a more favorable pod. One can
easily imagine why, for example, members of the same prison
gang would like to be housed together. Or an inmate might
wish to be moved so he can be near another inmate or guard
against whom he holds an outstanding grudge to launch an
attack. Such considerations are exactly why the Supreme
Court has instructed us to practice “judicial restraint” before
entangling ourselves in the inner-workings of prisons. Id.

                              II

    Even assuming Shepard has alleged facts that show a
constitutional violation, Lieutenant Wise is still entitled to
qualified immunity if the right at issue was not “clearly
established” at the time of the challenged conduct. Pearson
v. Callahan, 555 U.S. 223, 231 (2009). A clearly established
right is one that is “sufficiently clear that every reasonable
official would have understood that what he is doing violates
that right.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)
(emphasis added) (internal quotation marks and alteration
omitted). Shepard can’t meet that high burden here.

    The question we must answer is: would a reasonable
prison official in Lieutenant Wise’s position have known that
placing Shepard in administrative segregation after a
complaint of serious staff assault, as directed by a clearly
legitimate prison regulation, was a violation of Shepard’s
                   SHEPARD V. QUILLEN                     25

constitutional rights? I am at a loss as to how the answer to
this question can be anything but a resounding “no.”

    The relevant prison regulation, § 3335, required
Lieutenant Wise to transfer Shepard into administrative
segregation following his complaint of serious staff
misconduct if Lieutenant Wise determined that Shepard’s
personal safety was at risk or that Shepard’s continued
presence in the housing unit threatened the integrity of the
resulting internal investigation.     The record amply
demonstrates why it was reasonable for Lieutenant Wise to
transfer Shepard into administrative segregation for these
legitimate reasons.

    Under these circumstances, a reasonable officer in
Lieutenant Wise’s position could not have known that
complying with a mandatory prison regulation would be a
violation of Shepard’s constitutional rights. In concluding
otherwise and second-guessing his decision, the majority
subjects Lieutenant Wise to unnecessary “harassment,
distraction, and liability.” Pearson, 555 U.S. at 231. The
Supreme Court has told us that qualified immunity protects
“all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Lieutenant Wise’s decision to transfer Shepard into
administrative segregation falls squarely within the range of
conduct that is protected by qualified immunity. The district
court properly granted him the law’s protection. My
colleagues err in refusing to apply it.

   I respectfully dissent.
