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Brodheim v. Cry

October 28, 2009


Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, District Judge, Presiding. D.C. No. 2:02-cv-0573 FCD.

The opinion of the court was delivered by: Larson, District Judge


Argued and Submitted September 16, 2009 -- San Francisco, California.

Before: Stephen Reinhardt and Carlos T. Bea, Circuit Judges, and Stephen G. Larson,*fn1 District Judge.

Opinion by Judge Larson; Partial Concurrence and Partial Dissent by Judge Bea


Michael Brodheim, a prisoner at the California Medical Facility ("CMF"), appeals the district court's grant of summary judgment against him on his claim that his First Amendment right to petition the government for redress of grievances was violated by defendant Michael Cry, the prison Appeals Coordinator. The claimed violation occurred when a prison official denied Brodheim's written "interview request," and noted on the denial that Brodheim should be "careful" what he writes and requests in his administrative grievances. This was also followed by a request from the same official that Brodheim be transferred out of the CMF due to his filing of grievances and this lawsuit.

On cross-motions for summary judgment, the district court granted summary judgment in favor of the defendant prison officials, on the alternative bases of res judicata and that the undisputed facts failed to establish the required elements of a prison retaliation claim as set forth in Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005). Specifically, the court found that no genuine issue of fact existed as to whether Brodheim suffered any retaliatory adverse action, whether an adverse action was taken in response to protected conduct, or whether his rights were sufficiently "chilled." Even if he had so suffered, the court held that any such adverse action was justified by a legitimate penological interest. Because we find the district court applied the incorrect legal standards in reaching these conclusions, we reverse the entry of summary judgment and remand the action.

Brodheim also appeals the district court's denial of his motion for partial summary judgment. Because we conclude genuine issues of material fact remain in dispute, we affirm the denial of his motion.


Plaintiff Michael Brodheim was at all times relevant to this action a prisoner at CMF in Vacaville, California. Defendant Cry was an Appeals Coordinator at CMF, defendant Ana Ramirez Palmer was the CMF Warden, and defendant J. Valadez was the Chief Deputy Warden (collectively, "defendants" or "appellees").

A. The Initial Grievance

The California Code of Regulations contains a multi-tiered administrative scheme for inmate grievances. Cal. Code Regs. tit. 15, §§ 3084.5. To file a grievance, an inmate submits his complaint on California Department of Corrections Form 602 (referred to as a "602"). Cal. Code Regs. tit. 15, §§ 3084.2(a). In the first, "informal" step of the grievance process, the grievance is filed directly with any correctional staff member. This informal level is waived for a variety of grievances, including those concerning "alleged misconduct by a departmental peace officer." Cal. Code Regs. tit. 15, § 3084.5(a)(3)(G). The second level, also referred to as the First Formal Level, involves filing a 602 form with one of the institution's Appeals Coordinators. Cal. Code Regs. tit. 15, § 3084.5(b). Inmates are required to submit grievances to the Appeals Coordinator within fifteen working days of the incident at issue or of an unsatisfactory lower level decision. Cal. Code Regs. tit. 15, § 3084.6(c). The decision of the Appeals Coordinator may be appealed to the Warden at the Second Formal Level. Cal. Code Regs. tit. 15, § 3084.5(c). The Third Formal Level, also referred to as the "Director's Level," is the final avenue for administrative appeal. Cal. Code Regs. tit. 15, § 3084.5(d).

On May 21, 2001, Brodheim filed an administrative grievance with Correctional Officer Hearsum as a result of an incident on May 10, 2001. Brodheim claimed that, on that day, while returning to work, Hearsum told Brodheim that Brodheim was "out of bounds" and instructed him to take a different route back to his work assignment. Brodheim felt he was not in violation of any rule, told Hearsum this, and asked what rule he was violating. Brodheim contends that Hearsum got "visibly angry" at this question, and that another correctional officer nearby also got involved, acting "belligerently" towards him, and ordered him to leave. In his grievance, Brodheim claimed the officers' actions were "both contemptuous and discourteous" towards him, in violation of Department of Corrections regulations. He requested that he either be informed in writing of the rule he had been violating, or alternatively for the officers to be told that no such rule existed and that they be "remind[ed] . . . of their responsibilities to remain both respectful and courteous at all times in their dealings with inmates." When Hearsum did not respond to Brodheim's original grievance, Brodheim filed a copy of the 602 form on June 18, 2001, directly with Appeals Coordinator Cry.

Upon receiving the grievance, Cry categorized it as a staff complaint and rejected it as untimely because it was filed more than fifteen days after the incident. On June 20, 2001, Brodheim sent Cry an "inmate request for interview," disputing this categorization of his grievance. Brodheim's request was stated as follows:

This is not a "staff complaint" - any more than was my appeal involving C/O Lindstrom. I am requesting information (see part B). Any misconduct by C/O Hearsum or C/O Hernandez was incidental to the "story." I want to know why I could not walk thru Unit I and I think I'm entitled to an answer.

You're such a "stickler" for the rules as you "see" them. Why not teach staff that they are required to respond informally to 602's w/in 10 working days - or is it your position that Title 15 applies only "against" inmates? Or, is it your position that I am not entitled to the information I request? What exactly is your position, Mr. Cry - obstruct 602's at all costs???

This appeal was timely submitted to C/O Hearsum w/in 15 working days. (See my 6/18 note.)

Thank you for your cooperation.

On June 21, 2001, Cry rejected the interview request with the following notation: "The 695*fn2 rejection form stands as noted. Untimely for a 5-10-01 issue. I'd also like to warn you to be careful what you write, req[u]est on this form."

B. The Complaint Against Cry

After receiving the denial of his request for an interview, Brodheim filed a separate complaint against Cry. In this complaint, Brodheim alleged that Cry "is unprofessional in his dealings with me and repeatedly attempts to infringe upon my 1st Amendment right to petition the government for redress of grievances." Specifically, Brodheim noted multiple occasions where Cry had told him he filed too many grievances, "like they're soup." As a staff complaint, the first level of review was bypassed, and the complaint was reviewed by Correctional Lieutenant B.C. Roszko, and a decision was signed by defendant Valadez, on behalf of Warden Ramirez-Palmer. As part of this review, Roskzo conducted a personal interview of both Brodheim and Cry. The decision denied Brodheim's appeal, as did a subsequent Director's Level Appeal issued on November 20, 2001. The Director's Level decision served to exhaust Brodheim's administrative remedies.

Between the date of the Director's Level Decision in November 2001 and April 18, 2006, Brodheim filed over 60 grievances with the Department of Corrections. This included seven staff complaints, three of which were against Cry (and were all denied).

C. Cry's Memorandum

The instant action was filed on March 19, 2002. On June 8, 2004, Cry sent a memorandum to his supervisor, Associate Warden Veal, "formally document[ing] a continued concern of harassment and fixation exhibited by Inmate Brodheim." In the memorandum, Cry stated that "Since his return to CMF, [Brodheim] has gradually turned his entire focus on litigation directed towards the Inmate 602 Appeals Coordinator's process and the Board of Prison Terms." Cry explained that his rejection of Brodheim's initial claim as untimely was a legal issue, and that he did not feel it was a "staff complaint appeal issue." Cry expressed a concern that he was "starting to receive other appeals from other inmates involving these same allegations initiated by Inmate ...

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