United States District Court, W.D. Washington, Tacoma
ORDER ON MOTIONS FOR RECONSIDERATION
J. BRYAN UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendants' Motion for
Reconsideration (Dkt. 43) and Plaintiff's Motion for
Reconsideration (Dkt. 47). The Court has reviewed the motions
and the remainder of the file herein.
case centers on whether Department of Corrections (DOC) staff
retaliated against Plaintiff in violation of the First
Amendment, by disciplining Plaintiff for sending a kiosk
message to DOC staff. After DOC threatened to cut
Plaintiff's hair, which would violate a tenet of
Plaintiff's Rastafarian faith, Plaintiff sent Defendant
Kerry Lawrence the following kiosk message:
riot at Stafford Creek. Maybe there will be one here if the
South African born Douglas attempts to my hair again-or you
and Inslee will all lose your jobs. I have had enough. The
U.S. SUP CT has accepted a case on the Issue-Holv V. Hobbs
and prison hair. [sic]
Dkt. 31-1 at 13. Based on that kiosk message, Defendant Kerry
Lawrence wrote an Initial Serious Infraction Report
recommending pre-hearing confinement for threatening an
officer in violation of “WAC 506.” Dkt. 31-1 at
12. See WAC 137-35-030 (“506-Threatening
another with bodily harm or with any offense against any
person or property”).
sought summary judgment of dismissal on all claims, a motion
that was granted as to all claims except Plaintiff's
First Amendment retaliation claim against Defendant Lawrence.
Dkt. 41 at 14.
Plaintiff's Motion for Reconsideration (Dkt.
motion is not clearly organized, and it is unclear exactly
what Plaintiff portion of the Order on Motion for Summary
Judgment Plaintiff seeks to be reconsidered. See
Dkt. 47 at 1. It also appears Plaintiff may intend his
“motion” to be construed as a supplemental
Response to Defendant's Motion for Reconsideration, where
Plaintiff writes, “Plaintiff hereby responds with a
Motion for Reconsideration, and Answer, of his own.”
Dkt. 47 at 1.
by construing Plaintiff's motion generously, it would
appear that Plaintiff raises the issue of how inmate speech
should be analyzed under the First Amendment. See
Dkt. 47 at 1, 2. Plaintiff argues that analyzing whether an
inmate has made a threat should be considered not from the
subjective standpoint of the listener, but from the objective
standpoint of the speaker, who must show a specific intent to
communicate a true threat. Id. Plaintiff argues
that, in this case, despite the DOC officer's subjective
belief to the contrary, Plaintiff's kiosk message was not
a threat. Id.
argument, that the Court should analyze the First Amendment
retaliation claim from the standpoint of the speaker, may
have bearing on the initial prima facie showing, which
considers, inter alia, whether the inmate's
speech was protected. See Dkt. 41 at 8, 9. But even
assuming that the speaker's intent is relevant to the
prima facie showing, Plaintiff has overlooked the rest of the
qualified immunity analysis, which considers whether conduct
violated clearly established law. It was (and is) not clearly
established law that an officer cannot discipline an inmate
for a written kiosk message reasonably and subjectively
perceived to be a safety threat, under circumstances where
the inmate did not subjectively intend for the message to be
Motion for Reconsideration (Dkt. 47) is HEREBY DENIED.
Defendants' Motion for Reconsideration (Dkt.
Court's Order denied barring the First Amendment
retaliation claim on qualified immunity grounds because,
“it was clearly established that a general,
non-criminal threat, written in the context of an inmate
grievance, was not a legitimate basis to justify
[discipline].” Dkt. 41 at 12. Defendants' Motion
for Reconsideration asks the Court to revisit that finding,
because it “relied heavily upon the fact that Plaintiff
was punished for ...