Corey Drew, proceeding pro se, filed a complaint alleging that officials within the Yavapai County Sheriff's Office, specifically Captain Tom Boelts and Lieutenant John Johnson, took adverse actions against him in retaliation for exercising his First Amendment rights. Drew claimed these officials ordered his photo placed in substations, requested threat assessments, and initiated criminal proceedings against him based on fabricated allegations. The district court dismissed the entire complaint under Rule 12(b)(6), finding that the alleged actions did not constitute adverse actions sufficient to chill a person of ordinary firmness and that Drew failed to adequately allege the absence of probable cause for the criminal charges. Drew appealed this dismissal to the Ninth Circuit.
The Ninth Circuit reviewed the dismissal de novo, applying the standard that a complaint must state a claim that is plausible on its face, while holding pro se complaints to less stringent standards. Regarding Captain Boelts, the court affirmed the dismissal because the alleged actions—ordering a photo placement, requesting a threat assessment, distributing a departmental bulletin, and instructing officers to watch a YouTube video—were internal communications. The court reasoned that these actions do not constitute the 'regulatory, proscriptive, or compulsory' government actions typically required to chill a person of ordinary firmness from engaging in protected activity. The court also found that Boelts's instruction to forward complaints and his failure to respond to them were not chilling actions. Conversely, the court reversed the dismissal against Lieutenant Johnson. While acknowledging that pursuing an investigation and filing charges likely qualify as adverse actions, the district court had erred by finding Drew failed to allege the absence of probable cause. The court noted that Drew expressly alleged Johnson initiated proceedings without probable cause, contrived to have him wrongfully arrested based on fabricated allegations, and that all charges were subsequently dismissed, some for lack of probable cause. The court emphasized that it must consider the complaint in its entirety and construed Drew's pro se allegations liberally. The court rejected Johnson's argument that the allegations were conclusory, noting that Drew alleged Johnson ordered a 'sham investigation' for 'baseless' charges and acknowledged that things should have been done differently. These specific factual allegations were deemed sufficient to survive a motion to dismiss.
The case is remanded to the district court to allow the First Amendment retaliation claim against Lieutenant John Johnson to proceed. The decision clarifies that internal administrative communications within a sheriff's office generally do not meet the threshold for adverse action in retaliation claims, but it reinforces that allegations of fabricated charges leading to dismissed criminal proceedings are sufficient to plead the absence of probable cause necessary for a retaliatory prosecution claim.