SAN FRANCISCO (LN) — A Ninth Circuit panel on Monday reversed the dismissal of a pro se plaintiff's First Amendment retaliation claim against a Yavapai County Sheriff's Office lieutenant, concluding that Corey Drew had adequately alleged the absence of probable cause — the linchpin element courts require to plead a retaliatory prosecution claim — when he accused the officer of filing criminal charges against him in direct response to protected speech.
Drew sued the County of Yavapai, the sheriff's department, and several individual officers, alleging that Captain Tom Boelts and Lieutenant John Johnson took adverse actions against him for exercising his First Amendment rights. The district court dismissed the entire complaint under Rule 12(b)(6).
The panel, in a memorandum disposition, affirmed in part and reversed in part. It upheld dismissal of the claims against Boelts, whose alleged conduct — ordering Drew's photo posted in YCSO substations, requesting a threat assessment, distributing a bulletin about Drew, and telling officers to watch Drew's YouTube video — amounted to internal communications that would not "chill a person of ordinary firmness from continuing to engage in the protected activity," the court said, quoting its 2022 decision in Ballentine v. Tucker.
The Johnson claims were a different matter. The district court had acknowledged that Johnson's decisions to pursue an investigation and file charges "likely qualify as adverse actions" that would chill First Amendment activity, but dismissed anyway because it held that Drew had not adequately alleged the absence of probable cause — a requirement under Hartman v. Moore and Nieves v. Bartlett for retaliatory prosecution and retaliatory arrest claims, respectively.
The Ninth Circuit held that the district court read the complaint too narrowly. Drew had alleged that Johnson "initiated criminal proceedings against Plaintiff without any probable cause" and "contrived to have Plaintiff wrongfully arrested and charged with Disorderly Conduct among other charges, based on fabricated allegations and without any factual basis to substantiate their claims." He also alleged that a state trial judge dismissed all charges against him, three of them for lack of probable cause.
The panel acknowledged that Drew's sharpest probable-cause allegation appeared in his malicious prosecution count rather than his retaliation count, but said courts must "consider the complaint in its entirety" when ruling on a motion to dismiss, citing Tellabs, Inc. v. Makor Issues & Rights, Ltd. Construing the pro se pleading liberally under Estelle v. Gamble, the panel concluded Drew had cleared the bar.
Johnson's argument that the allegations tying him to the arrest and prosecution were impermissibly conclusory under Ashcroft v. Iqbal fared no better. The panel pointed to Drew's allegation that Johnson ordered a subordinate to conduct a "sham investigation" in support of "baseless" and pre-determined charges, and that Johnson had initially acknowledged "things which should have been done differently" concerning Drew's initial arrest and promised to review civil rights issues with the arresting officers — only to omit that concession from later communications with Boelts and move to file criminal charges just days after Drew asked to escalate his complaint and published the YouTube video.
Those allegations, the panel said, are more than the "[t]hreadbare recitals of the elements of a cause of action" that Iqbal forbids.
The case now returns to the District of Arizona, where Drew — who has litigated the matter without a lawyer — will face defendants who still have probable cause and qualified immunity arguments available to them on a fuller record.