John Entler v. Christine Gregoire
2017 U.S. App. LEXIS 19657
9th Cir.2017Background
- Appellant John Entler, a Washington State Penitentiary prisoner, submitted multiple informal complaints (“kites”) in 2012 demanding corrections (e.g., removal of a $200 charge, copies of legal documents, art curio permit) and threatening litigation or criminal complaints if officials did not act.
- Prison officials disciplined Entler under DOC Rule 663 (prohibiting intimidation/coercion) and related WAC disciplinary rules; sanctions ranged from warnings to loss of yard/gym time and short cell confinement after hearings.
- Entler filed a § 1983 suit alleging First Amendment retaliation for being sanctioned for threatening to sue and threatening to file criminal complaints; defendants moved for judgment on the pleadings (Rule 12(c)).
- The district court adopted an R&R dismissing the complaint, concluding Entler’s informal kites were not protected speech or that sanctions advanced legitimate penological interests, and alternatively awarding qualified immunity.
- The Ninth Circuit reversed in part and affirmed in part: it held threats to file civil suits (and filing civil suits) are protected First Amendment petitioning activity and defendants were not entitled to qualified immunity on those claims; threats to file criminal complaints (and filing criminal complaints) are protected, but qualified immunity applied to the criminal-threat claim on these facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether informal complaints (kites) and threats to sue are First Amendment–protected petitioning | Entler: kites and threats to sue are protected petitioning; disciplinary action was retaliation | Defendants: kites not part of formal grievance process; threats were intimidation/coercion serving legitimate penological goals | Court: kites and threats to sue are protected; dismissal improper; qualified immunity does not apply to civil-threat claims |
| Whether threats to file criminal complaints are protected petitioning | Entler: filing and threatening criminal complaints are protected petitioning when not baseless | Defendants: threat to involve law enforcement is coercive and not protected | Court: filing and threatening criminal complaints are protected, but qualified immunity shields defendants on the criminal-threat claim |
| Whether applying Rule 663 to Entler reasonably advanced legitimate penological interests | Entler: no valid nexus—statements were grievances or conditional threats to sue | Defendants: enforcing Rule 663 preserves institutional order, prevents coercion/intimidation | Court: nexus too remote for civil-threats; application arbitrary/irrational as applied; defendants failed to show legitimate penological justification for sanctions on civil threats |
| Whether defendants are entitled to qualified immunity | Entler: constitutional rights clearly established (right to petition & threaten suit; protected grievances) | Defendants: rights not clearly established; reasonable officials could think discipline lawful | Court: No qualified immunity for civil-threat claims (clearly established Ninth Circuit precedent); qualified immunity applies to criminal-threat claim (no robust precedent on threat to file criminal complaint at that time) |
Key Cases Cited
- Turner v. Safley, 482 U.S. 78 (institutional deference and prisoner rights framework)
- Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005) (retaliation test and chilling standard)
- Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009) (form of grievance not dispositive for First Amendment protection)
- Jones v. Williams, 791 F.3d 1023 (9th Cir. 2015) (verbal threats to sue are protected grievance activity)
- Hargis v. Foster, 312 F.3d 404 (9th Cir. 2002) (threat to sue may be protected; facts matter for coercion finding)
- Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (First Amendment does not protect baseless litigation)
- Meyer v. Board of County Commissioners, 482 F.3d 1232 (10th Cir. 2007) (filing criminal complaint is petitioning activity)
- United States v. Hylton, 710 F.2d 1106 (5th Cir. 1983) (nonfraudulent criminal complaint is protected petitioning activity)