                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                            DEC 08 2015

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

THOMAS W.S. RICHEY,                               No. 12-36045

              Plaintiff - Appellant,              D.C. No. 3:12-cv-05060-BHS

 v.
                                                  MEMORANDUM*
D. DAHNE,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                      Argued and Submitted October 16, 2015
                               Seattle, Washington

Before: W. FLETCHER and GOULD, Circuit Judges and EZRA,** District Judge.

      The facts of this case are fully set out in the jointly-filed opinion addressing

Dahne’s motion to revoke Richey’s in forma pauperis status on appeal. We review

de novo whether the district court properly granted a motion to dismiss under Rule


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
12(b)(6) of the Federal Rules of Civil Procedure, accepting all factual allegations

in the complaint as true. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015)

(citations omitted).

      “[W]e have previously held that disrespectful language in a prisoner’s

grievance is itself protected activity under the First Amendment.” Brodheim v.

Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (citing Bradley v. Hall, 64 F.3d 1276,

1281–82 (9th Cir. 1995)).1 The prison has a legitimate penological interest in

encouraging “respect by inmates toward staff and other inmates, and rehabilitation

of inmates through insistence on their use of socially acceptable ways of solving

their problems.” Bradley, 64 F.3d at 1280. But “the link between this important

purpose and the disrespect rules as applied to formal written grievances is weak.”

Id. at 1281. As we have twice explained, applying the Turner v. Safley, 482 U.S.

78 (1987), factors for assessing the constitutionality of a prison regulation, a prison

may not take or threaten adverse action against an inmate for using disrespectful

language in a grievance. Brodheim, 584 F.3d at 1272–73; Bradley, 64 F.3d at

1279–81. Richey has stated a plausible claim that his rights were violated when



      1
         As Brodheim noted, while we no longer “balance[] the importance of the
prisoner’s infringed right against the importance of the penological interest served
by the [prison] rule,” Bradley’s holding remains good law. Id. at 1272 (alteration
omitted) (quoting Bradley, 64 F.3d at 1280–81).

                                           2
the prison refused to process and investigate his grievance because it contained

“objectionable” language describing the prison guard as “extremely obese.”2

      Dahne’s contrary arguments are unavailing. Dahne claims that Bradley is

distinguishable because inmates like Richey “have the opportunity to rewrite their

grievances” without offensive language. But Bradley rejected the prison’s

argument that “the disrespect rules do not hinder a prisoner from filing a grievance

or suit, but merely from using inappropriate language within the grievance itself.”

64 F.3d at 1279 (emphasis in original). Dahne also attempts to distinguish Bradley

by suggesting that unlike here, that case involved language “necessary to the

explanation or resolution of a grievance,” but not once did Bradley suggest that the

prisoner’s language was protected because it was “necessary.” Moreover, Bradley

recognized that prison rules governing an inmate’s language cannot create “a hazy

[line], leaving the aggrieved prisoner guessing whether he will be punished for

what he has said in his formal prison complaint.” 64 F.3d at 1281. A policy under

which prison officials have unfettered discretion to determine what information is

“necessary” to a grievance would suffer the same constitutional infirmities.



      2
          As we are reviewing only Richey’s complaint to determine whether it
states a claim for relief, we do not consider whether additional statements in
Richey’s grievance—which were not included in the complaint—are also protected
under Bradley.

                                          3
      In the alternative, Dahne seeks qualified immunity because his “actions and

decisions were based on his application of Department policy and his attempt to

have Richey comply with the grievance program’s requirements so that Richey’s

complaint could be addressed.” At the motion to dismiss stage, however, “it is the

defendant’s conduct as alleged in the complaint that is scrutinized for ‘objective

legal reasonableness,’” Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)) (emphasis in original), and

Richey’s complaint says nothing about whether the prison had any language

policy, what that policy was, and how consistently that policy was enforced.

Dahne is therefore not entitled to qualified immunity at this time.3

      REVERSED AND REMANDED.




      3
         In this posture, we do not consider whether the law in our circuit is clearly
established that “disrespectful language in a prisoner’s grievance is itself protected
activity under the First Amendment.” Brodheim, 584 F.3d at 1271 (citing Bradley,
64 F.3d at 1281–82).

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