                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                          FILED
                           FOR THE NINTH CIRCUIT
                                                                           SEP 07 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
PHILIP JACKSON LYONS,                           No.    15-15804

              Plaintiff-Appellant,              D.C. No.
                                                2:14-cv-01813-APG-VCF
 v.

A. DICUS; et al.,                               MEMORANDUM*

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Andrew P. Gordon, District Judge, Presiding

                          Submitted September 2, 2016**
                            San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

      Phillip Jackson Lyons (“Lyons”), a former Nevada state prisoner, appeals pro

se from the dismissal with prejudice of his 42 U.S.C. § 1983 action raising First and

Eighth Amendment violations by employees of the Southern Desert Correctional


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Center (“SDCC”), Correctional Officer A. Dicus, Warden Brian Williams, Sr., and

Nevada Department of Corrections Director James G. Cox.1

      We review the dismissal de novo, Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th

Cir. 2012), and refusal of leave to amend for abuse of discretion, Ramirez v. Galaza,

334 F.3d 850, 861 (9th Cir. 2003); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.

2000); Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). We have jurisdiction

under 28 U.S.C. § 1291, and we reverse and remand so that Lyons may be afforded

leave to amend his initial complaint.

      Lyons’ principal allegation is that Dicus chilled his right to file grievances and

endangered his health and safety by referring to prison grievance forms as “snitch

kites” within earshot of other prisoners. Lyons and a fellow inmate requested

grievance forms when Dicus refused to release them to the prison library to retrieve

their legal mail at their designated time. Fearful that he would be perceived as a snitch

and thus targeted by other prisoners, Lyons declined to take a grievance form.

      The complaint also recounts Dicus announcing his dislike for grievances and

stating that he would “‘begin working really hard’ were grievances to be filed against



      1
         Lyons’ appellate brief also requests that this court review for abuse of
discretion the district court’s denial of his Rule 60(b) motion to reconsider. As we
reverse the initial dismissal with prejudice of his claims, we need not reach his motion
to reconsider.
                                           2
him.” That Dicus also allegedly singled out two other inmates who had filed

grievances—one inmate endured a cell search and racial slurs, removal from his unit,

confiscation of his television, and transfer to another institution, and the other inmate

was subjected to an extended cell search and religious and racial insults—“thoroughly

convince[d]” Lyons that filing a grievance against Dicus would subject him to similar

retaliation. Lyons further avers that Williams and Cox knowingly failed to take steps

to curb Dicus’s purportedly retaliatory and abusive behavior towards Lyons and the

other prisoners.

      Favorably construed, Lyons’ complaint raises constitutional claims for

retaliation, unsafe prison conditions, and denial of access to the courts. He seeks

compensatory and punitive damages as well as injunctive relief.

      A First Amendment retaliation claim in the prison context entails five elements:

(1) a state actor’s adverse action towards an inmate (2) because of (3) the inmate’s

protected conduct (4) such that the action chilled the inmate’s exercise of First

Amendment freedoms, and (5) the action “did not reasonably advance a legitimate

correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). A

sufficiently adverse action need not involve “an explicit, specific threat of discipline

or transfer.” Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (citation omitted).

Rather, the relevant question is whether the alleged statements by the defendant could


                                           3
reasonably be interpreted by a person of ordinary firmness “as intimating that some

form of punishment or adverse regulatory action would follow.” Id. (internal

quotation marks and citations omitted). A prisoner need not plead his rights were

completely silenced to perfect his claim. Rhodes, 408 F.3d at 568-69. Nor is it

relevant that another inmate in similar circumstances did elect to lodge a grievance

form. See id.

      The district court erred in dismissing Lyons’ First Amendment claim with

prejudice on the grounds that Dicus engaged in no actual adverse action against

Lyons, and Dicus’s use of the term “snitch kite” did not result in any serious threat

against him from other inmates. Lyons avers that “Dicus was well aware that being

perceived as a snitch in the prison context posed a substantial risk to plaintiff’s health

and safety at the hands of fellow prisoners . . . .” Moreover, Dicus’s announcement

that he would work against those who file grievances, combined with the manner in

which he made good on this threat by singling out two other inmates who did file

grievances about him, taken as true, could comprise adverse conduct that reasonably

chilled Lyons’ exercise of his First Amendment rights. Thus, leave to amend would

not, as the district court concluded, necessarily be futile.

      It was also error to dismiss with prejudice Lyons’ Eighth Amendment claim

based on unsafe prison conditions. The Eighth Amendment encumbers prison


                                            4
officials with a duty to provide humane conditions of confinement, including a

responsibility to protect prisoners from violence at the hands of other prisoners.

Farmer v. Brennan, 511 U.S. 825, 833-34 (1994). A prison official may only be held

liable for a violation of this responsibility where the prisoner can establish that the

official acted with deliberate indifference to subject the prisoner to conditions posing

a substantial risk of serious harm. Id. at 834. Lyons alleges Dicus was aware of the

danger in which he placed a prisoner by labeling him a snitch. While Lyons does not

allege specific facts about this danger, or state he was actually threatened by other

inmates, his complaint does allege that Dicus retaliated against other inmates who did

file grievances. And while Lyons does not allege that those inmates suffered any

serious harm or threat of harm from other inmates, it does not follow that Lyons could

not specify the specific danger associated with being a snitch to which he refers in the

initial complaint in an amended pleading.

      REVERSED AND REMANDED.




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