Id. The filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005), as are the rights to speech or to petition the government, Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Second, the plaintiff must show the defendant took adverse action against the plaintiff.
Finally, plaintiff must show that the retaliatory action "'did not advance legitimate goals of the correctional institution.'" Id. (quoting Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)). In the context of analyzing pleading requirements for a prison retaliation claim, the Ninth Circuit has suggested that allegations of either a chilling effect on First Amendment rights or more than minimal harm "would suffice, since harm that is more than minimal will almost always have a chilling effect.
"A prisoner suing prison officials under [§] 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline." Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curium); see also Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). "[P]risoners have a First Amendment right to file prison grievances."
Retaliation by prison officials for the exercise of a prisoner's constitutional right of access to the courts violates the federal constitution. Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995);Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995); Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994); Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985).
"A prisoner suing prison officials under section 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline." Barnett, 31 F.3d at 816 (citing Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)). Retaliatory Motive
As a prerequisite to discerning a constitutional violation for an unconstitutional condition or unconstitutional retaliation, however, we must first examine the validity of the underlying alleged constitutional rights. Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (retaliatory firing); Parks v. Watson, 716 F.2d 646, 651 (9th Cir. 1983) (per curiam) (unconstitutional condition). If no constitutional rights would have been in jeopardy — in other words if NDOP could legally have simply confiscated Vance's net accrued interest — no claim for retaliation or unconstitutional conditions could be made out.
As a prerequisite to discerning a constitutional violation for an unconstitutional condition or unconstitutional retaliation, however, we must first examine the validity of the underlying alleged constitutional rights. Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (retaliatory firing); Parks v. Watson, 716 F.2d 646, 651 (9th Cir. 1983) (per curiam) (unconstitutional condition). If no constitutional rights would have been in jeopardy§in other words if NDOP could legally have simply confiscated Vance§s net accrued interest§no claim for retaliation or unconstitutional conditions could be made out.
First, this court has held that inmates have a First Amendment right to assist other inmates with their legal claims. See Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). Second, where a prison regulation, otherwise generally justifiable, implicates a constitutional interest when applied to a protected class of expression, this court applies a balancing test to insure that the regulation is not an "exaggerated response."
Haines, 404 U.S. at 521, 92 S.Ct. at 596 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). See Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985). The concept of frivolousness under section 1915(d), however, is not identical to the 12(b)(6) legal standard.
Before we will recognize a constitutionally protected liberty interest, state law must direct that a given action will be taken or avoided only on the existence or nonexistence of specified substantive predicates. See Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983); Hewitt v. Helms, 459 U.S. 460, 470-72, 103 S.Ct. 864, 870-71, 74 L.Ed.2d 675 (1983); Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 11-12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979); Meachum v. Fano, 427 U.S. 215, 226-27, 96 S.Ct. 2532, 2539, 49 L.Ed.2d 451 (1976); Allen v. Board of Pardons, 792 F.2d 1404 (1986); Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986); McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir. 1986); Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985); Baumann v. Arizona Department of Corrections, 754 F.2d 841, 844 (9th Cir. 1985). The adoption of guidelines to structure the exercise of discretion does not necessarily create a liberty interest.