Richard H. Blaisdell, Plaintiff-Appellant,
C. Frappiea, Defendant-Appellee.
Argued and Submitted April 16, 2013-San Francisco, California
Appeal from the United States District Court for the District of Arizona D.C. No. 2:08-cv-01462-JAT James A. Teilborg, District Judge, Presiding
Dawn Sestito, O'Melveny & Myers LLP, Los Angeles, CA, argued the cause and filed the briefs for the plaintiff-appellant. Mica Doctoroff, UCLA School of Law Ninth Circuit Clinic, Los Angeles, CA, also argued the cause for the plaintiff-appellant. With them on the briefs was Katharine S. Mercer, O'Melveny & Myers LLP, Los Angeles, CA.
Nicholas D. Acedo, Struck Wieneke & Love, P.L.C., Chandler, Arizona, argued the cause and filed a supplemental brief for the defendant-appellee. With him on the brief was Daniel P. Struck, Struck Wieneke & Love, P.L.C, Chandler, Arizona. Jaleh Najafi, Jones, Skelton & Hochuli, P.L.C, Phoenix, Arizona, filed the original brief for the defendant-appellant. With him on the brief were Eileen Dennis GilBride, Jones, Skelton & Hochuli, P.L.C., Phoenix, Arizona, and Daniel P. Struck, Jones, Skelton & Hochuli, P.L.C., Phoenix, Arizona.
Before: Alfred T. Goodwin, Diarmuid F. O'Scannlain, and N. Randy Smith, Circuit Judges.
Prisoner Civil Rights
The panel affirmed the district court's summary judgment and held that an inmate did not engage in constitutionally protected activity when he served a prison official with a summons and complaint on another inmate's behalf.
Plaintiff alleged that a prison official retaliated against him by issuing him a disciplinary report after he attempted to serve her with a federal summons and complaint on behalf of another inmate. The panel first held that the district court did not err by determining that plaintiff waived his claim that his prior litigation activity against the prison triggered retaliation given his acknowledgment, in his own motion for summary judgment, that the disciplinary report was not issued because of his other litigation activities.
The panel held that the access-to-court doctrine did not provide plaintiff with constitutional protection. The panel further held that because of the general incompatibility between prison and free association, and because there was no evidence of expressive association, the First Amendment did not protect plaintiff's attempted service of process on a prison official.
O'SCANNLAIN, Circuit Judge
We must decide whether an inmate engaged in constitutionally protected activity when he served a prison official with a summons and complaint on another inmate's behalf.
The State of Hawaii contracts with the Corrections Corporation of America ("CCA") to house some of its prisoners within the Saguaro Correctional Center, a privately operated prison in Eloy, Arizona. Richard Blaisdell is one of those inmates. On April 23, 2008, Blaisdell visited Christina Frappiea-the prison's Classification Supervisor-to ask her to notarize a document for a new lawsuit he planned to file against the prison. This was not Blaisdell's first attempt at litigation. He had filed at least three lawsuits against the prison and its officers since 2007. Frappiea notarized the document.
As soon as Frappiea had finished, Blaisdell announced that she had been "served" and handed her a summons and complaint in a federal civil Racketeer Influenced and Corrupt Organizations Act ("RICO") suit prepared by another prisoner: Anthony Gouveia. Blaisdell had agreed to serve process as a favor to Gouveia and was not a party to his lawsuit. The suit against Frappiea concerned her apparent unwillingness to notarize a contract for Gouveia which pertained to a lawsuit he had already filed in Mississippi federal district court. After looking at the document, Frappiea reportedly said: "Oh. Well, you can't serve that. You're a state prisoner." Blaisdell claims he replied by stating: "[T]his is not a ...