Rhodes v. Robinson ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAVIN MAURICE RHODES, 
Plaintiff-Appellant,
v.
No. 03-15335
M. ROBINSON, R&R Officer; RON
BLEVINS, R&R Sergeant; SARA D.C. No.
CV-02-05018-
MALONE, Ombudsman; C. NELSON,
Correctional Officer; V. PAZO,  REC(DLB)
Correctional Officer; B. JONES, ORDER AND
Sergeant; ROBERTSON, Sergeant; J. AMENDED
TIDWELL, Correctional Officer; A. OPINION
LOPEZ, Facility Captain; HUEBNER,
Lieutenant,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Robert E. Coyle, Senior Judge, Presiding
Submitted May 14, 2004*
San Francisco, California
Filed August 19, 2004
Amended April 25, 2005
Before: Diarmuid F. O’Scannlain, Eugene E. Siler, Jr.,** and
Kim McLane Wardlaw,*** Circuit Judges.
*The panel unanimously finds this case suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2).
**The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
***Judge Wardlaw was drawn to replace Judge Michael Daly Hawkins
on the panel. See G.O. 3.2.
4607
4608 RHODES v. ROBINSON
Opinion by Judge O’Scannlain
4610 RHODES v. ROBINSON
COUNSEL
Kavin Maurice Rhodes, pro se, Lancaster, California.
Bill Lockyer, Robert R. Anderson, Allen Crown, James E.
Flynn, and John W. Riches II, for the respondent, Office of
the Attorney General, Sacramento, California.
ORDER
The opinion filed August 19, 2004, is hereby ordered
amended as follows:
Slip op. at 11715, lines 15-16: Delete “harmed the prisoner
and (5) was not narrowly tailored to advance a legitimate cor-
rectional goal.” and replace it with “chilled the inmate’s exer-
cise of his First Amendment rights,11 and (5) the action did not
reasonably advance a legitimate correctional goal.”
Slip op. at 11715, lines 29-30: Delete “were not undertaken
in narrowly tailored furtherance of legitimate penological pur-
poses.” and replace it with “were not undertaken to advance
legitimate penological purposes.”
11
If Rhodes had not alleged a chilling effect, perhaps his allegations that
he suffered harm would suffice, since harm that is more than minimal will
almost always have a chilling effect. Alleging harm and alleging the chill-
ing effect would seem under the circumstances to be no more than a
nicety. See, e.g., Pratt, 65 F.3d at 807 (deciding that alleged harm was
enough to ground a First Amendment retaliation claim without indepen-
dently discussing whether the harm had a chilling effect); Valandingham
v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (same).
RHODES v. ROBINSON 4611
Slip op. at 11716-17: Delete the paragraph on page 11716,
lines 28-35, and 11717, lines 1-12, that begins “In this con-
text, and at the pleading stage” and delete the paragraph on
page 11717, lines 13-20, that begins “Our cases, in short, are
clear” and replace them with “In this context, and at the
pleading stage, we have never required a litigant, per impossi-
bile, to demonstrate a total chilling of his First Amendment
rights to file grievances and to pursue civil rights litigation in
order to perfect a retaliation claim. Speech can be chilled even
when not completely silenced. In Mendocino Environmental
Center v. Mendocino County, we pointed out that the proper
First Amendment inquiry asks “whether an official’s acts
would chill or silence a person of ordinary firmness from
future First Amendment activities.” 192 F.3d 1283, 1300 (9th
Cir. 1999) (emphasis added), (quoting Crawford-El v. Britton,
93 F.3d 813, 826 (D.C. Cir. 1996), vacated on other grounds,
520 U.S. 1273 (1997) (internal quotation marks and citation
omitted)). Because “it would be unjust to allow a defendant
to escape liability for a First Amendment violation merely
because an unusually determined plaintiff persists in his pro-
tected activity,” Rhodes does not have to demonstrate that his
speech was “actually inhibited or suppressed.” See id.
Rhodes’ allegations that his First Amendment rights were
chilled, though not necessarily silenced, is enough to perfect
his claim.”
Except as herein modified, the panel has voted unani-
mously to deny the Petition for Rehearing. Judge O’Scannlain
and Judge Wardlaw have voted to reject the Petition for
Rehearing En Banc and Judge Siler so recommended.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing en
banc are DENIED. No further petitions shall be entertained.
4612 RHODES v. ROBINSON
OPINION
O’SCANNLAIN, Circuit Judge:
We must resolve a legal quandary that only Joseph Heller,
the author of Catch-22, could have imagined: Do the exhaus-
tive efforts of an incarcerated prisoner to remedy myriad vio-
lations of his First Amendment rights demonstrate that his
First Amendment rights were not violated at all?
I
Kavin Maurice Rhodes is currently imprisoned at Califor-
nia State Prison, Los Angeles County, in Lancaster, Califor-
nia. Proceeding pro se, he brings this § 1983 action against
several correctional officers (“the officers”) at the California
Correctional Institution (“CCI”) in Tehachapi, California,
alleging that they repeatedly retaliated against him for exer-
cising his First Amendment rights when he was previously
incarcerated there.1
A
Rhodes’s conflict with the officers has its genesis in the
most unlikely of places: the servicing of his Canon typewriter.
It seems that every time Rhodes shipped his typewriter for
off-site repairs, he not only would discover “considerable
. . . new damage” upon its return, but correctional officer M.
Robinson would intentionally delay sending Rhodes’s type-
writer for further repairs. Angered by these actions, Rhodes
1
Because this appeal arises from the district court’s decision to grant the
officers’ Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, we
treat each of Rhodes’s factual allegations as true and construe them in a
light most advantageous to him by drawing all reasonable inferences in his
favor. See, e.g., Gompper v. VISX, Inc., 298 F.3d 893, 896 (9th Cir. 2002);
TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). We draw our
recital of the facts from Rhodes’s First Amended Complaint, liberally
quoting his words and retaining his emphases.
RHODES v. ROBINSON 4613
eventually filed an inmate grievance criticizing Robinson’s
conduct and requesting that, in the future, his typewriter be
returned to him in its original shipping container so that “in
the event that the typewriter failed to function, [he] could
assign blame to the appropriate parties.” His grievance was
summarily denied.
A few months later, and allegedly “in retaliation for [his]
submission of the grievance,” Robinson “forced [him] to send
either his CD player, or his television home, in order to
receive his typewriter” which had recently returned from
another round of repairs. When Rhodes refused to relinquish
either of those devices, Robinson refused to return his type-
writer and ordered correctional officer C. Nelson to confiscate
Rhodes’s CD player. Robinson subsequently withheld both
Rhodes’s CD player and his typewriter.2
In response, Rhodes promptly drafted a “group appeal”3 on
behalf of himself and his fellow inmates. That appeal, con-
tained in the record, alleged that Robinson had a “personal
vendetta” against inmates who possess personal property
(especially those who possess personal typewriters) and that
Robinson frequently hampered inmates’ efforts to obtain their
personal property from the “Receiving and Release” office.
Signed by approximately 120 of his fellow inmates, Rhodes’s
group appeal is punctuated with comments from inmates
2
Robinson ultimately defended his actions by citing CCI operational
procedures stating that inmates were limited to possession of “2 electric
appliances (AC).” Rhodes not only claims that his typewriter was “bat-
tery operated” and thus “not considered an appliance,” but proffers
prison property records and repair invoices indicating that, for long peri-
ods prior to filing his first grievance against Robinson, Rhodes simulta-
neously possessed his CD player, television, and typewriter without
interference. He also alleges that before he was allowed to purchase the
typewriter—some ten years before these events unfolded—he was
required to pay a $20 service charge to have an AC outlet in his cell disas-
sembled so that the typewriter would not be considered “electrical.”
3
See CAL. CODE REGS. tit. 15, § 3084.2(f).
4614 RHODES v. ROBINSON
claiming that—beyond a generally disrespectful attitude—
Robinson often arbitrarily withheld their personal property
and otherwise damaged or altered their belongings.
Allegedly in an effort to mask these misdeeds, and in pur-
ported retaliation for Rhodes’s having prepared and submitted
the group appeal, Robinson soon altered Rhodes’s CD player
in order to make it appear as though Rhodes had stolen
another inmate’s property—and “thereby [to] justify its total
confiscation.”4 To further cover his tracks, Robinson then
“conspired” with prison ombudswoman Sara Malone to with-
hold filing of the group appeal—thus evading CCI’s legal
duty promptly to respond to the grievance.5
In hopes that one of Robinson’s superiors might convince
him to relinquish Rhodes’s typewriter, Rhodes approached
Lieutenant Huebner with a request for assistance. While
Huebner was kind enough to discuss the matter with Robin-
son and his colleague, R. Blevins, neither admitted wrongdo-
ing. Instead, both allegedly insisted that the only reason
Rhodes had not received his typewriter was because he had
refused to request it from them. With seemingly nowhere else
to turn, Rhodes then sought out CCI’s Facility Captain, A.
Lopez, to whom he “verbally described the entire saga of
events . . . .” Lopez asked Rhodes to submit his complaints
in writing, which he promptly did. Simultaneously, Rhodes
forwarded to Lopez his only copy of the grievance he origi-
nally filed against Robinson.
Unfortunately, Lopez never responded to Rhodes’s filing
4
This, Rhodes claims, was “[a] common practice of Defendant M. Rob-
inson, [intended] to perfect his retaliations against inmates[ ] that exercise
their rights to utilize the institution’s internal grievance process.”
5
Rhodes had styled the grievance an “emergency appeal.” See CAL.
CODE REGS. tit. 15 § 3084.7(a) (“Usual time limits for staff response shall
not apply to emergency appeals, which shall be resolved in the shortest
practical time.”).
RHODES v. ROBINSON 4615
and he “obstinately refused to return to [Rhodes his] docu-
mentary evidence.” Instead, Rhodes asserts, the defendants
soon initiated a conspiracy to transfer him to the High Desert
State Prison in Susanville, California, as “a[ ] collective, and
retaliatory measure, to avoid having to respond to any of [his]
grievances.” As part of this “nefarious scheme,” Rhodes soon
was ordered to relinquish all personal property to the defen-
dants in preparation for his scheduled transfer. Concerned that
his property would be retaliatorily destroyed by the defen-
dants, Rhodes then filed a preemptive grievance.
While this “elaborate ruse” was unfolding, Rhodes—
fearing that his internal efforts to secure relief would continue
to bear only poisonous fruit—turned to outside authorities for
assistance: He filed a complaint with the Kern County Grand
Jury. During its investigation, ombudswoman Malone
informed the Grand Jury that she had delivered Rhodes’s
group appeal to the prison’s “Men’s Advisory Coun[cil]” for
“remedial action,” which (as formally memorialized in a letter
sent to Rhodes shortly thereafter) quickly prompted the Grand
Jury to dismiss Rhodes’s complaint on grounds that he
retained an unexhausted avenue for administrative relief.
However, Rhodes alleges—and he has submitted a sworn dec-
laration from the Chairman of the Men’s Advisory Council
which supports his claim—that the group appeal was never
sent to the Council for action.6
As Rhodes contemplated his next move, fate intervened to
thwart the correctional officers’ scheme to transfer him. For
Rhodes long had been considering donating a kidney to his
6
Not surprisingly, Rhodes thus charges that Malone’s conduct during
the course of the Grand Jury proceedings is further evidence of her con-
spiratorial efforts to suppress his complaints. In this vein, he further notes
that, as an association of inmates, the Men’s Advisory Council had no
authority to remedy misconduct by correctional officers—thus suggesting
that Malone’s response to the Grand Jury’s inquiry was (without regard to
its truth or falsity) deliberately designed to mislead investigators into pre-
maturely dismissing Rhodes’s complaint.
4616 RHODES v. ROBINSON
ailing mother, and officials in the Department of Correc-
tions’s medical division preempted his transfer on grounds
that such a move would interfere with donor compatibility
testing. When Rhodes went to retrieve his property, Blevins
“was very disgruntle[d] and short with [him], and began to
make references to some of the claims that [he] had made
against . . . Robinson.” When Rhodes inquired into the status
of his preemptive grievance, Blevins responded that it had
been forwarded to the prison Appeals Coordinator7 —and
then promptly confiscated twelve of Rhodes’s compact discs
and his Laser Lens Cleaner. These actions were “perceived by
[Rhodes] as . . . further[ ] . . . retaliations against [him] for the
submission of the ‘Group Appeal.’ ” Rhodes then requested
his typewriter, and when Blevins reluctantly returned with it,
Rhodes discovered that it had been “completely destroyed.”
His will unshakably steeled by these events, Rhodes
promptly filed a second Grand Jury complaint—not only
rehearsing the parade of indignities visited upon him in retali-
ation for his administrative complaints (including the scheme
to transfer him from CCI), but identifying Malone’s “apocry-
phal and specious” misrepresentations to the Grand Jury and
charging that she “ha[d] unwittingly allowed herself to
become goaded into participating in a[ ] criminal conspiracy
to obstruct justice.” While his complaint was actively being
investigated by the Grand Jury, Rhodes subsequently was
accosted by three correctional officers. They allegedly
ordered him into the prison chapel, brandished pepper spray,
and “in a fashion that can only be described as some sort of
perverted sexual-strip-tease” forced Rhodes slowly to dis-
robe, bend over, and “spread [his] buttocks apart.” For
approximately five minutes, the officers mockingly threatened
to transfer him from CCI. Not long after this physical assault
7
When Rhodes subsequently asked Huebner about the status of his pre-
emptive grievance, Huebner allegedly responded “[S]omeone stole your
grievance out of my locker,” and stated that if asked, he would testify that
Rhodes had refused to retrieve the typewriter.
RHODES v. ROBINSON 4617
took place, the Grand Jury dismissed Rhodes’s second com-
plaint.
B
His internal administrative grievances and external appeals
universally having been thwarted, Rhodes turned to the fed-
eral courts for relief. Proceeding pro se, he filed his first
amended § 1983 complaint in March 2002, alleging unlawful
First Amendment retaliation based upon the events outlined
above. His prayer sought (1) a declaratory judgment that the
officers violated his First Amendment rights; (2) an injunction
prohibiting the officers from retaliating against him in the
future, requiring them to return his property, and preventing
them from removing him from his position as a legal clerk or
confiscating his legal papers; and (3) both compensatory and
punitive damages.8 Succinctly summarizing the substance of
his claim, Rhodes explained that, in response to his repeated
grievances, he was:
retaliated against, in the form of the confiscation
and destruction, of his personal property, in violation
of the First Amendment . . . [and that] each defen-
dant, and all of them, collectively conspired to chill
the effect of Plaintiff’s exercise of his First Amend-
ment rights [through actions that] do[ ] not advance
any legitimate penological goals, nor [are] tailored
narrowly enough to achieve such goals.
8
Because Rhodes is no longer incarcerated at CCI, his prayers for
injunctive relief are likely moot except insofar as they demand the return
of any property still in the officers’ possession. However, it is firmly
established that claims for monetary damages survive a prisoner’s release
from the officers’ custody. See, e.g., Bd. of Pardons v. Allen, 482 U.S.
369, 371 n.1 (1987) (release on parole); Johnson v. Moore, 948 F.2d 517,
519 (9th Cir. 1991) (transfer); cf. Brady v. Smith, 656 F.2d 466, 468 (9th
Cir. 1981) (changed conditions). And because his claim for damages nec-
essarily entails a determination whether the officers’ alleged conduct vio-
lated his rights, his separate request for declaratory relief is subsumed by
his damages action.
4618 RHODES v. ROBINSON
On July 15, the state filed a motion to dismiss under Rule
12(b)(6) asserting that the defendants enjoyed qualified
immunity because Rhodes was “unable to show a chill or
deterrence of the exercise of his First Amendment constitu-
tional rights,” and because “[i]t is not clearly established that
a prisoner has any constitutional right to be free from retalia-
tory action that does not chill and/or deter the exercise of his
constitutional rights.” On December 13, 2002, Magistrate
Judge Dennis L. Beck recommended that the State’s motion
be granted, reasoning that
plaintiff makes no showing of a chilling or deterring
effect of defendants’ actions. After filing the griev-
ance that spawned the alleged retaliation, plaintiff
continued to assert his First Amendment rights by
drafting a group appeal on May 9, 2001. He filed a
complaint with the Kern County Grand Jury. Plain-
tiff submitted additional grievances concerning the
typewriter in May 2001. . . . Finally, plaintiff filed
this lawsuit. These actions, which plaintiff alleges in
his complaint, show that plaintiff’s speech was not
chilled or deterred.9
On January 16, 2003, Rhodes filed written objections to
Judge Beck’s report. The district court nonetheless fully
adopted the Magistrate’s findings and recommendation and
granted the State’s motion to dismiss on January 31, 2003.
Judgment was entered on February 4, 2003, and Rhodes
timely appealed to this court.
9
Apparently because Judge Beck found that Rhodes had not “allege[d]
facts that show a constitutional violation” (quoting Saucier v. Katz, 533
U.S. 194, 201 (2001)), he did not proceed to the second step of the quali-
fied immunity analysis: whether the right in question was clearly estab-
lished. Saucier, 533 U.S. at 201. In briefing to this court, the officers do
not raise the issue of qualified immunity at all; they merely assert that
Rhodes’s complaint fails to state a claim for relief because his pleadings
demonstrate that the officers’ actions did not chill the exercise of Rhodes’s
First Amendment rights.
RHODES v. ROBINSON 4619
II
There was only one catch and that was Catch-22,
which specified that a concern for one’s own safety
in the face of dangers that were real and immediate
was the process of a rational mind. Orr was crazy
and could be grounded. All he had to do was ask;
and as soon as he did, he would no longer be crazy
and would have to fly more missions. Orr would be
crazy to fly more missions and sane if he didn’t, but
if he was sane he had to fly them. If he flew them he
was crazy and didn’t have to; but if he didn’t want
to he was sane and had to. Yossarian was moved
very deeply by the absolute simplicity of this clause
of Catch-22 and let out a respectful whistle.
“That’s some catch, that Catch-22,” he observed.
“It’s the best there is,” Doc Daneeka agreed.
— Joseph Heller, Catch-22, at 47 (6th
ed. 1976)
A
[1] Even where conditions of confinement do not implicate
a prisoner’s due process rights, inmates “retain other protec-
tion from arbitrary state action . . . within the expected condi-
tions of confinement. They may invoke the First and Eighth
Amendments and the Equal Protection Clause of the Four-
teenth Amendment where appropriate, and may draw upon
internal prison grievance procedures and state judicial review
where available.” Hines v. Gomez, 108 F.3d 265, 269 (9th Cir.
1997) (quoting Sandin v. Conner, 515 U.S. 472, 487 n.11
(1997)); see also Pell v. Procunier, 417 U.S. 817, 822 (1974)
(“A prison inmate retains those First Amendment rights that
are not inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections system.”).
4620 RHODES v. ROBINSON
[2] Of fundamental import to prisoners are their First
Amendment “right[s] to file prison grievances,” Bruce v. Ylst,
351 F.3d 1283, 1288 (9th Cir. 2003), and to “pursue civil
rights litigation in the courts.” Schroeder v. McDonald, 55
F.3d 454, 461 (9th Cir. 1995).10 Without those bedrock consti-
tutional guarantees, inmates would be left with no viable
mechanism to remedy prison injustices. And because purely
retaliatory actions taken against a prisoner for having exer-
cised those rights necessarily undermine those protections,
such actions violate the Constitution quite apart from any
underlying misconduct they are designed to shield. See, e.g.,
Pratt v. Rowland, 65 F.3d 802, 806 & n.4 (9th Cir. 1995)
(“[T]he prohibition against retaliatory punishment is ‘clearly
established law’ in the Ninth Circuit, for qualified immunity
purposes. That retaliatory actions by prison officials are cog-
nizable under § 1983 has also been widely accepted in other
circuits.”) (citing Schroeder, 55 F.3d at 461; Barnett v. Cen-
toni, 31 F.3d 813, 815-16 (9th Cir. 1994); Frazier v. Dubois,
922 F.2d 560, 561-62 (10th Cir. 1990); Madewell v. Roberts,
909 F.2d 1203 (8th Cir. 1990); Gill v. Mooney, 824 F.2d 192,
194 (2d Cir. 1987); Bridges v. Russell, 757 F.2d 1155 (11th
Cir. 1985); Buise v. Hudkins, 584 F.2d 223 (7th Cir. 1978)).
[3] Within the prison context, a viable claim of First
Amendment retaliation entails five basic elements: (1) An
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,11 and (5) the action did not reason-
10
Cf. Bounds v. Smith, 430 U.S. 817, 828 (1977) (“[T]he fundamental
constitutional right of access to the courts requires prison authorities to
. . . provid[e] prisoners with adequate law libraries or adequate assistance
from persons trained in the law”).
11
If Rhodes had not alleged a chilling effect, perhaps his allegations that
he suffered harm would suffice, since harm that is more than minimal will
almost always have a chilling effect. Alleging harm and alleging the chill-
ing effect would seem under the circumstances to be no more than a
nicety. See, e.g., Pratt, 65 F.3d at 807 (deciding that alleged harm was
enough to ground a First Amendment retaliation claim without indepen-
dently discussing whether the harm had a chilling effect); Valandingham
v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (same).
RHODES v. ROBINSON 4621
ably advance a legitimate correctional goal. See, e.g., Resnick
v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); Barnett, 31 F.3d
at 815-16.
B
[4] The officers do not seriously contest the fact that
Rhodes’s complaint precisely satisfies these pleading require-
ments. Nor could they. Rhodes alleges that they (1) arbitrarily
confiscated, withheld, and eventually destroyed his property,
threatened to transfer him to another correctional institution,
and ultimately assaulted him, (2) because he (3) exercised his
First Amendment rights to file prison grievances and other-
wise seek access to the legal process, and that (4) beyond
imposing those tangible harms, the guards’ actions chilled his
First Amendment rights and (5) were not undertaken to
advance legitimate penological purposes. Rhodes’s First
Amended Complaint is, in short, the very archetype of a cog-
nizable First Amendment retaliation claim. See, e.g., Gomez
v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (holding that
“repeated threats of transfer because of [the plaintiff’s] com-
plaints about the administration of the [prison] library” were
sufficient to ground a retaliation claim); Hines, 108 F.3d at
269 (holding that the retaliatory imposition of a ten-day
period of confinement and loss of television—justified by a
correctional officer’s false allegation that the plaintiff
breached prison regulations—violated the First Amendment);
Pratt, 65 F.3d at 807 (“[I]t would be illegal for [corrections]
officials to transfer and double-cell [plaintiff] solely in retalia-
tion for his exercise of protected First Amendment rights.”);
Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir.
1989) (holding that, if correctional officers indeed called
plaintiff a “snitch” in front of other prisoners in retaliation for
his filing grievances, it would violate the First Amendment).
Instead, the officers argue not that Rhodes has failed ade-
quately to plead a First Amendment retaliation claim because
he “can prove no set of facts . . . that would entitle [him] to
4622 RHODES v. ROBINSON
relief,” Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.
1997), but that the very facts proven by Rhodes’s complaint
and accompanying documentation demonstrate that, notwith-
standing his well-pleaded claim to the contrary, Rhodes is not
entitled to relief. While this analytic approach arguably com-
ports with case law holding that a “court need not . . . accept
as true allegations that contradict matters properly subject to
judicial notice or . . . unwarranted deductions of fact” on a
motion to dismiss, Sprewell v. Golden State Warriors, 266
F.3d 979, 988 (9th Cir. 2001) (citations omitted), the officers’
claim cannot be squared with our First Amendment prece-
dents.
[5] In this context, and at the pleading stage, we have never
required a litigant, per impossibile, to demonstrate a total
chilling of his First Amendment rights to file grievances and
to pursue civil rights litigation in order to perfect a retaliation
claim. Speech can be chilled even when not completely
silenced. In Mendocino Environmental Center v. Mendocino
County, we pointed out that the proper First Amendment
inquiry asks “whether an official’s acts would chill or silence
a person of ordinary firmness from future First Amendment
activities.” 192 F.3d 1283, 1300 (9th Cir. 1999) (emphasis
added), (quoting Crawford-El v. Britton, 93 F.3d 813, 826
(D.C. Cir. 1996), vacated on other grounds, 520 U.S. 1273
(1997) (internal quotation marks and citation omitted)).
Because “it would be unjust to allow a defendant to escape
liability for a First Amendment violation merely because an
unusually determined plaintiff persists in his protected activi-
ty,” Rhodes does not have to demonstrate that his speech was
“actually inhibited or suppressed.” See id. Rhodes’ allegations
that his First Amendment rights were chilled, though not nec-
essarily silenced, is enough to perfect his claim.
C
The consequences of a contrary holding would be remark-
ably perverse. Indeed, adopting the rule proposed by the offi-
RHODES v. ROBINSON 4623
cers and embraced by the district court would prevent
virtually any prisoner retaliation suit from reaching federal
court. As Rhodes repeatedly observes, the Prison Litigation
Reform Act of 1995 (“PLRA”) establishes strict prerequisites
to the filing of prisoner civil rights litigation. Most notably,
PLRA requires that “No action shall be brought with respect
to prison conditions under . . . 42 U.S.C. 1983[ ], or any other
Federal law, by a prisoner . . . until such administrative reme-
dies as are available are exhausted.” 42 U.S.C. § 1997e(a).12
Rejecting Rhodes’s suit on the basis of his having filed
administrative grievances seeking to vindicate his rights thus
would establish a rule dictating that, by virtue of an inmate’s
having fulfilled the requirements necessary to pursue his
cause of action in federal court, he would be precluded from
prosecuting the very claim he was forced to exhaust.
[6] The district court’s further holding that Rhodes’s filing
this very lawsuit somehow precludes relief on the retaliation
claim he therein presents goes even further afield. Indeed,
were we to adopt such a theory, prisoner civil rights plaintiffs
would be stuck in an even more vicious Catch-22. The only
way for an inmate to obtain relief from retaliatory conduct
would be to file a federal lawsuit; yet as soon he or she does
so, it would become clear that he or she cannot adequately
state a claim for relief. Like its fictional counterpart, this catch
exudes an “elliptical precision about its perfect pairs of parts
that [i]s both graceful and shocking.” Catch-22 at 47. Unlike
Colonel Cathcart, however, we are unwilling to indulge a rule
that “would result in the anomaly of protecting only those
individuals who remain out of court.” Lamar v. Steele, 693
F.2d 559, 562 (5th Cir. 1982).
12
“PLRA’s exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or particular epi-
sodes, and whether they allege excessive force or some other wrong.” Por-
ter v. Nussle, 534 U.S. 516, 532 (2002).
4624 RHODES v. ROBINSON
III
[7] Two final observations, regarding qualified immunity,
are in order. Beyond the State’s failure to address the issue of
qualified immunity in this court (notwithstanding Rhodes’s
careful attention to the issue in his briefs and the State’s prior
invocation of immunity in district court), we must first reiter-
ate our firm recognition that “the prohibition against retalia-
tory punishment is ‘clearly established law’ in the Ninth
Circuit, for qualified immunity purposes.” Pratt, 65 F.3d at
806. We think our case law is abundantly clear that the inflic-
tion of harms other than a total chilling effect can establish
liability for such conduct, and there can be no serious doubt
that the harms allegedly visited upon Rhodes in response to
his exercise of First Amendment rights went well beyond any
marginal chilling of his rights.
At the same time, we cannot help but further observe that
the officers’ particular claim to immunity in the district court
—that “[i]t is not clearly established that a prisoner has any
constitutional right to be free from retaliatory conduct that
does not chill and/or deter the exercise of his constitutional
rights”) (emphasis added)—is flatly inconsistent with the con-
cept of qualified immunity in the first instance. The require-
ment that controlling law be clearly established before an
officer can be subjected to suit serves a particular purpose in
our system of judicial review. Given the basic demand that
state actors conform their conduct to the law, there is some-
thing particularly unfair about holding officials liable for con-
duct that they did not (and could not) know was unlawful at
the time they decided to act. See Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982) (“If the law at that time was not clearly
established, an official could not reasonably be expected to
anticipate subsequent legal developments, nor could he fairly
be said to ‘know’ that the law forbade conduct not previously
identified as unlawful.”) (emphasis added); cf. Saucier, 533
U.S. at 202 (“The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be
RHODES v. ROBINSON 4625
clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.”) (emphasis added).
By their argument to the district court, the officers would
have qualified immunity turn on the harm eventually caused
by an official’s conduct. But that puts the cart before the
horse: It shifts the focus of the qualified immunity inquiry
from the time of the conduct to its aftermath and effect, and
therefore would make immunity hinge upon precisely the kind
of post hoc judgment that the doctrine is designed to avoid.
See Rudebusch v. Hughes, 313 F.3d 506, 519 (9th Cir. 2002)
(“[T]he relevant inquiry is not whether, in hindsight, [the offi-
cer] acted unreasonably, but instead whether his decision was
reasonable in light of the information that he possessed at the
time of implementation.”). Taken to its logical extreme, the
officers’ claim would insulate any retaliatory conduct from
later sanction, for no officer can observe whether his or her
retaliation has successfully chilled a prisoner’s rights until
long after deciding to act. We simply cannot sanction a claim
to qualified immunity on that basis.
IV
The judgment of the district court is hereby REVERSED,
and the case is REMANDED for further proceedings consis-
tent with this opinion.