(CN) – Three conservative justices balked at their Supreme Court colleagues Monday for turning down a case where a prisoner has been permitted to raise First Amendment claims over a grievance riddled with threatening language.
Thomas Richey, who is serving a murder sentence in Washington state, brought the grievance against a female guard at Stafford Creek Corrections Center, saying she had improperly denied him shower privileges. “When guards like this fat Hispanic female guard abuse their position … it can make prisoners less civilized than myself to resort to violent behavior in retaliation,” Richey wrote, as quoted in Monday’s dissenting opinion.
Richey filed a second grievance with similar language when the prison concluded that his first effort was too offensive to process.
“It is no wonder why guards are slapped and strangled by some prisoners,” the second grievance asserted.
When this complaint was rejected, too, Richey filed suit against Stafford Creek’s grievance coordinator, Dennis Dahne.
But Monday’s opinion notes that the prison had good cause to treat Richey’s threatening grievances with caution. Just a few months before Richey referred to guards getting strangled, an inmate murdered a Washington state prison staffer “by strangling her to death,” Justice Samuel Alito wrote, joined by Justices Clarence Thomas and Brett Kavanaugh.
Dahne petitioned the Supreme Court to intervene after the Ninth Circuit found that Richey’s First Amendment claim against him was strong enough to move forward. Though the justices denied Dahne a writ of certiorari this morning, Alito said this was not the right call.
“We have made it clear that prisoners do not retain all of the free speech rights enjoyed by persons who are not incarcerated,” he wrote. “Prisons are dangerous places. To maintain order, prison authorities may insist on compliance with rules that would not be permitted in the outside world. Even if a prison must accept grievances containing personal insults of guards, a proposition that is not self-evident, does it follow that prisons must tolerate veiled threats? I doubt it, but if the court is uncertain, we should grant review in this case. Perhaps there is more here than is apparent on the submissions before us, but based on those submissions, the decision of the Ninth Circuit defies both our precedents and common sense.”
In a footnote, Alito added that several courts have actually “upheld prison rules barring or punishing prisoners’ use of insolent, disrespectful, or profane language in written grievances and complaints.”
Dahne is represented by the Washington Attorney General’s Office, and the law firm Perkins Coie represents Richey, as does attorney Edward Piper.
“We are, of course, very happy with the outcome and continue to believe that there’s no real justification for the sort of content-based restriction that was at issue here,” Piper said in an email.
The Supreme Court did not include any grants in the order list it filed this morning, but it did rule summarily in favor of an Arkansas meth dealer who was given a sentencing enhancement for gun possession under the Armed Career Criminal Act.
Citing the response brief filed in March by the U.S. solicitor general, the court instructed the Eighth Circuit to reconsider the claims put forward by inmate James Myers.
Solicitor General Noel Francisco advised the justices to grant and remand Myers’ case because the Eighth Circuit had improperly applied precedent from the 2016 decision Mathis v. U.S.
Chief Justice John Roberts dissented to this result Monday, with Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh joining in his opinion.
“Unless there is some new development to consider, we should vacate the judgment of a lower federal court only after affording that court the courtesy of reviewing the case on the merits and identifying a controlling legal error,” Roberts wrote. “This case does not warrant our independent review. If the government wants to ensure that the Eighth Circuit does not repeat its alleged error, it should have no difficulty presenting the matter to subsequent panels of the Eighth Circuit, employing the procedure for en banc review should it be necessary.”
Representatives for Myers at the Federal Public Defender’s Office in Fayetteville did not respond to an email seeking comment.