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Seventh Circuit Holds That A Prisoner’s Verbal Complaints About Racist Guards May Be Protected Speech

Retaliation for verbally complaining about a prison guard who hung a noose where prisoners could see it, the Seventh Circuit has held, may constitute an infringement of a prisoner’s First Amendment free speech rights.

Lester Dobbey, an Illinois state prisoner, filed suit pursuant to 42 U.S.C. § 1983 alleging that one morning before dawn, while observing five guards, all white, playing cards in the “officers’ cage,” he saw one of them get up to hang a noose from the ceiling of the room and swat it so that it swung back and forth, then sit back down and make a “crazy” gesture with “evil eyes.” Dobbey, who is black, filed a grievance to complain about the alleged misconduct. Subsequently, he was interviewed by an internal affairs officer. Then he wrote letters to various state officials, and to news agencies, describing what he had observed. About a month later, he was disciplined for allegedly disobeying a guard’s order. The disciplinary committee sustained the charge against Dobbey and imposed various sanctions against him, including the loss of his prison job. Dobbey filed suit, alleging cruel and unusual punishment, denial of due process and retaliation for his exercise of First Amendment rights. The district court screened the complaint pursuant to 28 U.S.C. § 1915A and dismissed all of the claims.

On appeal, the Seventh Circuit affirmed the dismissal of the Eighth Amendment and due process claims, but reversed as to the First Amendment claim. In an opinion by Circuit Judge Posner, the Court expressed its mindfulness of “the ugly resonance of the noose, symbolic of the lynching of blacks, for black people,” but rejected Dobbey’s suggestion that, in the specific context posed by the allegations of the complaint, merely hanging a noose within sight of black prisoners could reasonably be construed as a threat sufficiently serious to constitute cruel and unusual punishment. On the other hand, punishing Dobbey for merely complaining about the noose incident, the Court held, could constitute an infringement of his free speech rights. As this issue goes to print the case is still pending before the district court. See: Dobbey v. Illinois Department of Corrections, 574 F.3d 443 (7th Cir. 2009).

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Related legal case

Dobbey v. Illinois Department of Corrections