Drew v. County of Yavapai – Do It For The Caselaw

Holding: The Ninth Circuit affirmed the dismissal of claims against Captain Boelts but reversed the dismissal of First Amendment retaliation claims against Lieutenant Johnson and remanded for further proceedings.
Standard: Rule twelve comma six plausibility standard
Vote: The panel unanimously decided the case without oral argument.
Practical effect: Law enforcement officials may face liability for retaliatory prosecutions if plaintiffs can allege the absence of probable cause and specific facts suggesting sham investigations, even in pro se filings.

The Ninth Circuit reviewed a pro se complaint alleging First Amendment retaliation by law enforcement officials. The court affirmed dismissal of claims against one official but reversed dismissal of claims against another, finding sufficient allegations of retaliation without probable cause.

Background

Corey Drew filed a pro se complaint alleging that Captain Tom Boelts and Lieutenant John Johnson of the Yavapai County Sheriff’s Office took adverse actions against him in retaliation for exercising his First Amendment rights. The district court dismissed the complaint under Rule twelve comma six of the Federal Rules of Civil Procedure.

The court’s reasoning

The court reviewed the dismissal de novo. Regarding Captain Boelts, the court found that internal communications, such as placing Drew’s photo in substations and requesting threat assessments, did not constitute regulatory or compulsory actions that would chill a person of ordinary firmness. Regarding Lieutenant Johnson, the court held that while the district court correctly identified the investigation and charges as adverse actions, it erred in dismissing the claim for failure to allege absence of probable cause. The court construed Drew’s pro se complaint liberally and found his allegations that Johnson initiated proceedings without probable cause and ordered a sham investigation were sufficient to survive dismissal.

What it means going forward

Law enforcement officials may face liability for retaliatory prosecutions if plaintiffs can allege the absence of probable cause and specific facts suggesting sham investigations, even in pro se filings.