Phillip Lyons v. Jay Barth ( 2015 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                             DEC 03 2015
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    PHILIP JACKSON LYONS,        )                No. 13-16656
    )
    Plaintiff - Appellant,  )                D.C. No. 3:05-cv-00400-JCM-VPC
    )
    v.                      )                MEMORANDUM*
    )
    JAY BARTH; SANTERREN WARD;)
    PAUL LUNKWITZ,               )
    )
    Defendants - Appellees. )
    )
    Appeal from the United States District Court
    for the District of Nevada
    James C. Mahan, District Judge, Presiding
    Argued and Submitted November 17, 2015
    San Francisco, California
    Before: FERNANDEZ and M. SMITH, Circuit Judges, and MORRIS,** District
    Judge.
    Philip Lyons, who is in the custody of the Nevada Department of
    Corrections, appeals from the judgment issued by the district court in favor of
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Brian M. Morris, District Judge for the U.S. District Court
    for the District of Montana, sitting by designation.
    prison officers Jay Barth, Santerren Ward, and Paul Lunkwitz (collectively “the
    Officers”). The judgment was issued after a jury verdict on Lyon’s 
    42 U.S.C. § 1983
     claims against the Officers. The jury found in their favor on Lyons’
    assertion that they had violated his free speech rights under the First Amendment
    to the United States Constitution by retaliating against him. We affirm.
    (1)    Lyons first asserts that the district court abused its discretion1 when it
    limited testimony regarding his claim that the Officers had retaliated against him
    after he exercised his First Amendment rights by filing an emergency grievance
    and demanding a written response to that request.2 We agree with Lyons that the
    district court erred to the extent that it suggested that all testimony about any use of
    force was irrelevant. That leaves the question of whether Lyons suffered prejudice
    as a result. See Fed. R. Civ. P. 61; Fed. R. Evid. 103(a); Obrey v. Johnson, 
    400 F.3d 691
    , 699 (9th Cir. 2005).3 On the record before us, we are satisfied that
    1
    See United States v. 4.85 Acres of Land, 
    546 F.3d 613
    , 617 (9th Cir. 2008);
    see also United States v. Hinkson, 
    585 F.3d 1247
    , 1261–62 (9th Cir. 2009) (en
    banc).
    2
    See Rhodes v. Robinson, 
    408 F.3d 559
    , 567–68 & n.11 (9th Cir. 2005)
    (listing the elements of a retaliation claim).
    3
    Our case law appears to be in conflict over whether reversal follows when
    the verdict was more probably than not untainted or when the verdict was more
    probably than not tainted. Compare Microsoft Corp. v. Motorola, Inc., 795 F.3d
    (continued...)
    2
    Lyons was not prejudiced. The district court did not, in fact, strike or exclude
    evidence that had already been heard regarding the reasons for and fact of his
    removal from his cell. More importantly, evidence on that subject came in later
    from both Lyons and from his cellmate-witness, who also testified about the
    Officers’ actions in removing Lyons from the cell. In addition, an officer testified
    about the steps he took to remove Lyons and his reasons for doing so.4 In short, it
    is more probable than not that the jury would have reached the same verdict with
    or without the court’s somewhat overbroad statement.
    (2)      Lyons next asserts that the district court erred when it prevented him
    from calling a witness for his case-in-chief. We disagree. In fact, Lyons’ counsel
    raised the issue in the midst of the trial, but had not taken steps to have the witness
    available. He complained that opposing parties (the Officers) had not made the
    witness available. When the court asked why the burden would be upon the
    opposing parties, counsel withdrew his complaint. We perceive no abuse of
    discretion. See Morris v. Slappy, 
    461 U.S. 1
    , 11–12, 
    103 S. Ct. 1610
    , 1616, 
    75 L. 3
    (...continued)
    1024, 1052 (9th Cir. 2015), with Wilkerson v. Wheeler, 
    772 F.3d 834
    , 838 (9th Cir.
    2014). In any event, the results here would be the same on either test, so we need
    not resolve any conflict. See Molina v. Astrue, 
    674 F.3d 1104
    , 1119, n.11 (9th Cir.
    2012).
    4
    See Hill v. Rolleri, 
    615 F.2d 886
    , 890 (9th Cir. 1980).
    3
    Ed. 2d 610 (1983); United States v. Garrett, 
    179 F.3d 1143
    , 1144–45 (9th Cir.
    1999) (en banc).
    (3)    Lyons next argues that the district court erred when it informed the
    jury that "a prisoner does not have a constitutional right to a particular grievance
    procedure," and that therefore, an officer may not be individually liable under
    § 1983 based on "the mere denial of a grievance because inmates have no
    legitimate claim of entitlement to a grievance procedure." Those are accurate
    statements of Fourteenth Amendment law, and refer to the due process rights of
    prisoners. See Ramirez v. Galaza, 
    334 F.3d 850
    , 860 (9th Cir. 2003); Mann v.
    Adams, 
    855 F.2d 639
    , 640 (9th Cir. 1988) (per curiam). But absent further
    explanation they were not accurate statements of the law to be applied in this First
    Amendment case. Thus, those jury instructions were erroneous in that they
    presented the jury with inapplicable and potentially misleading law. We do not
    reverse, however, because the error did not prejudice Lyons. See Gantt v. City of
    Los Angeles, 
    717 F.3d 702
    , 707 (9th Cir. 2013). The jury appears to have credited
    the Officers' testimony over Lyons' so we do not believe that the verdict would
    have been different without these instructions.
    (4)    Lyons finally argues that we must reverse because the district court
    erred in giving certain instructions regarding the “adverse action” element of a
    4
    retaliation claim. Rhodes, 
    408 F.3d at 567
    . We do not agree. Lyons did not object
    to the instructions in question. Therefore, we review them for plain error. See Fed.
    R. Civ. P. 51(d)(2); C.B. v. City of Sonora, 
    769 F.3d 1005
    , 1018 (9th Cir. 2014) (en
    banc), cert. denied __U.S.__ , 
    135 S. Ct. 1482
    , 
    191 L. Ed. 2d 371
     (2015). And to
    obtain relief in this civil case, Lyons must show more than a mistake. He must
    point to an error that actually reaches “‘the pinnacle of fault.’” Hemmings v.
    Tidyman’s Inc., 
    285 F.3d 1174
    , 1193 (9th Cir. 2002); see also C.B., 769 F.3d at
    1018. That is a rara avis. See Hemmings, 185 F.3d at 1193. This case is not.
    Lyons complains about an instruction that informed the jury that an adverse
    action must be “clearly adverse.” He says that the case law provides that it must be
    adverse and that the court erred when it added the adverb “clearly.” We agree that
    while the facts of some cases do show clear adversity,5 we have merely held that
    the action must be adverse, not that it must be clearly so.6 We see no reason to
    muddy the waters by adding that adverb. Perhaps we could also hold that the error
    was obvious, although that is somewhat dubious, especially in light of the fact that
    the instruction in question was specifically discussed at conference and Lyons’
    5
    See, e.g., Austin v. Terhune, 
    367 F.3d 1167
    , 1170–71 (9th Cir. 2004); Bruce
    v. Ylst, 
    351 F.3d 1283
    , 1288–89 (9th Cir. 2003).
    6
    See Rhodes, 
    408 F.3d at 567
    .
    5
    counsel expressly agreed to it. But, even assuming that it was obvious, we cannot
    say that it affected Lyons’ substantial rights. The adverb itself adds little more
    than an underscore to the idea that the Officers’ alleged actions had to be enough to
    chill a person of ordinary firmness and could not be a mere eidolon. Here,
    however, if Lyons’ evidence were believed by the jury, the adverse nature of the
    action was certainly clear. At the very least, we must say that the error did not
    reach that pinnacle of fault that calls for a reversal on civil-plain-error review.
    Lyons goes on to complain about the part of an instruction which indicates
    that prisoners “may be required to tolerate more” than non-prisoners before an
    action by the authorities would be considered adverse—chilling. But the very
    status of being a prisoner necessarily means that just as the rights themselves are
    limited,7 actions taken which might seem chilling to non-prisoners are much more
    routine (and not chilling) to a prisoner of ordinary firmness. Here, for example, if
    the Officers are believed, Lyons had to be removed from his cell for a time in order
    to assure a proper consideration of his grievance.8 Necessary removal procedures
    are not necessarily pleasant. Yet, in prison they may well not be chilling—just a
    7
    See Turner v. Safley, 
    482 U.S. 78
    , 89, 
    107 S. Ct. 2254
    , 2261–62, 
    96 L. Ed. 2d 64
     (1987); Jones v. Williams, 
    791 F.3d 1023
    , 1035 (9th Cir. 2015).
    8
    If they were not believed, it is highly unlikely that the jury would have
    found in their favor.
    6
    normal way of bringing a prisoner from one place (a cell) to another place (an
    office). Thus, we see no error, much less a plain error, and even less an error that
    reaches the pinnacle.
    AFFIRMED.
    7