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"Public Concern" Test Does Not Apply To Prisoner Claims of Retaliation; Speech Must Be Consistent with Status as Prisoner

"Public Concern" Test Does Not Apply To Prisoner Claims of Retaliation; Speech Must Be Consistent with Status as Prisoner

By Brandon Sample

The "public concern" test does not apply to prisoner claims of retaliation, the U.S. Court of Appeals for the Seventh Circuit decided March 31, 2010. Nonetheless, to be entitled to First Amendment protection, the prisoner's speech must not be inconsistent with his or her status as a prisoner, the court held.

The court's decision comes in response to an appeal by Barbara Kasper, an Indiana Department of Corrections (DOC) librarian. Kasper was sued by Charles Watkins, a law clerk at Miami Correctional Facility (MCF), after Kasper retaliated against him.

During a meeting with Kasper, Watkins, and other MCF law clerks, Watkins spoke out against a policy Kasper instituted prohibiting him and the other law clerks from assisting prisoners with their legal work. The next day, Kasper threw away some of Watkins' personal materials that he had failed to remove after being instructed to do so. In addition, Kasper wrote a negative job evaluation and misconduct report, citing Watkins' failure to remove his personal materials from the library. Watkins was subsequently removed from his law library job. In addition, for 13 days, Kasper denied Watkins access to the law library by allegedly directing that Watkins not be given a pass to the library.

Watkins confronted Kasper a couple of weeks later complaining about some of his legal materials being missing, and other prisoners being allowed to rummage through some of his legal work that was left on a table. Watkins used a "loud and boisterous voice" when speaking with Kasper during this encounter, and employed numerous "exaggerated hand gestures." Kasper wrote another misconduct report on Watkins after this confrontation, charging him with intimidation, which was later reduced to disorderly conduct.

In 2005, Watkins sued Kasper under 42 U.S.C. § 1983 alleging First Amendment retaliation. Watkins claimed that Kasper threw away his legal materials, wrote misconduct reports against him, and denied him access to the library because of his objections to Kasper's policies and behavior. The case went to trial and a jury found for Watkins, awarding $150 in compensatory damages, and $1000 in punitive damages. Kasper appealed.

The first issue the Seventh Circuit took up on appeal was whether the so-called "public concern" test should apply to prisoner claims of retaliation. The "public concern" test was created by the Supreme Court to address claims o First Amendment retaliation by government workers. Under the test, a public employee claiming First Amendment retaliation must show that their speech related to a matter of "public concern," as opposed to a "personal interest." Without such a test, the government's operations would become unworkable, according to the Supreme Court, because every employment matter would become a "constitutional matter." Connick v. Myers, 461 U.S. 138, 147 (1983).

After carefully considering the matter, the Seventh Circuit decided to "completely jettison the public concern test from [its] prisoner free speech jurisprudence." "[T]he dynamics of the government's relationships with prisoner- employees and with public employees are too dissimilar to transfer the public concern test to the prison context," the court wrote. Accordingly, the court held "that the public concern test developed in the public employment context has no application to prisoners' First Amendment claims, even in the case of speech by a prisoner-employee."

With the "public concern" test out of the way, the court turned next to whether Watkins' speech itself was entitled to First Amendment protection. In conducting its First Amendment analysis, the court was guided by the Supreme Court's four-part test in Turner v. Safley 482 U.S. 78 (1987).

Applying Turner to Watkins' objections to Kasper's policy prohibiting MCF law clerks from assisting other prisoners with legal work, the court held that Watkins' objections were not entitled to First Amendment protection because Watkins "openly challeng[ed] Kaper's directives in front of other prisoner law clerks, [thereby] imped[ing] [Kasper's] authority and her ability to implement library policy." While Watkins had a First Amendment right to object to Kasper's policies, he had to "do so 'in a manner consistent with his status as a prisoner,'" the court emphasized. For instance, "Watkins could have taken the less disruptive approach of filing a written complaint," the court said. Watkins did not do so, though, and as a result his "public challenge to Kasper's directives was inconsistent with her legitimate interests in discipline and library administration, [making Watkins'] speech unprotected as a matter of law under Turner."

Watkins second encounter with Kasper was also not entitled to First Amendment protection, the court held. According to the court, "the confrontational, disorderly manner in which Watkins complained about the treatment of his personal property removed this grievance from First Amendment protection." Watkins, for example, "did not confine himself to a formal, written grievance or a courteous, oral conversation with Kasper about the placement of his legal materials." As such, Watkins speech was not consistent with his status as a prisoner.

The jury's verdict in favor of Watkins was accordingly reversed, and the case was remanded with instructions to enter judgment in favor of Kasper. See: Watkins v. Kasper, 599 F.3d 791 (7th Cir. 2010).

The lesson for prisoners from this case is clear--keep your communications in writing when dealing with prison officials to the maximum extent possible.

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Related legal case

Watkins v. Kasper