Can Custody Officers Deny a Grievance Based on Offensive Language?

This post is only offered as a discussion topic only and does not represent legal advice. Officers must refer to the laws in their own State as well as their agency's policies, which can be more restrictive on officers that the law requires.

Scenario: An officer is working as a custody officer when they receive a grievance from an inmate. As they read through the grievance, the officer notices the grievance is particularly insulting to a specific co-worker and the language feels threatening.

Can an officer deny the grievance and refuse to send it through the process? 

Answer: The 2019 9th Circuit Court of Appeals case Dahne v Richey answers this question. Here, the 9th circuit said, “Under the First Amendment, speech is protected unless the speech falls under one of a few narrowly defined categories of unprotected speech such as fighting words, defamation, or obscenity. We have previously held that "disrespectful language in a prisoner's grievance is itself protected activity under the First Amendment." 

They went on to say, “We clarify, however, that a prison official merely requesting that a prisoner rewrite a grievance is not a First Amendment violation. The prison could and did have valid grounds to make such a request in the interest of maintaining good relations between prisoners and guards. But, the violation here occurred when (the custody officer) refused to allow the grievance to proceed through the administrative process after (the Inmate) did not rewrite it in a way that satisfied (the custody officer's) sense of propriety. Functionally, allowing curtailment of the prison's grievance process in this way would mean that only a grievance that conformed to (the custody officer's) personal conception of acceptable content could get meaningful review. That is the sort of content-based discrimination that runs contrary to First Amendment protections.” 

So, the bottom line is, if the speech in the grievance is insulting and borderline threatening, the officer can ask the inmate to rewrite it. If the inmate refuses or just writes the same language as before, the grievance still must go through the administrative process.