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Seventh Circuit: No Public Interest Requirement in Prisoner's First Amendment Retaliation Suit

by Matt Clarke

On March 4, 2009, the Seventh Circuit court of appeals held that a prisoner who alleges retaliation for free speech was not required to show that the speech engaged in concerned a matter of public interest.

Jimmy D. Bridges, a Wisconsin state prisoner, filed a civil rights suit pursuant to 42 U.S.C. § 1983, in federal district court complaining of retaliation by prison officials after he assisted the mother of a prisoner who died in suing prison officials. Bridges was an aural witness to the plight of another prisoner in an adjoining segregation cell who fell seriously ill, but whose pleas for help were ignored by guards until the day before he died. The dead prisoner's mother sued prison employees. Her attorney interviewed Bridges in March 2005, receiving an affidavit from him. The affidavit was used in a summary judgment motion filed in April 2005.

Starting in March 2005, prison employees began a harassment campaign against Bridges. This included delaying his incoming and outgoing mail, kicking his cell door, turning his cell light on and off and opening then slamming his cell's tray slot door when he tried to sleep, filing a bogus disciplinary charge, improperly upgrading the bogus charge to a major disciplinary case and improperly dismissing or refusing to process his grievances related to the retaliation. The district court dismissed the suit for failure to state a claim. Bridges appealed.

The Seventh Circuit undertook a lengthy analysis of the state of prisoner First Amendment retaliation claims. To prevail, a prisoner must prove (1) engagement in a First Amendment protected activity, (2) suffering a deprivation sufficient to deter future First Amendment protected activity and (3) the First Amendment protected activity was "at least a motivating factor" for the retaliation. In Brookins v. Kolb, 990 F.2d 308 (7th Cir. 1993) and subsequent cases, the Seventh Circuit held that a prisoner's speech about a public matter or concern was worthy of First Amendment protection while speech about a private matter was not. The "public concern" requirement was originally developed in the context of public employees. However, district courts within the Seventh Circuit and other circuit courts of appeals questioned its applicability to prisoner free speech claims. The Fifth and Eighth Circuit had simply applied the standard of Turner v. Safley, 482 U.S. 78 (1987), that limitations on a prisoner's First Amendment rights must be rationally related to a legitimate penological objective, applying the same standard to prison employees' responses to prisoners' First Amendment activity.

Overturning its previous cases, the Seventh Circuit held that "a prisoner's speech can be protected even when it does not involve a matter of public concern" and that the Turner legitimate penological interests test was the appropriate one. It then found that Bridges had adequately alleged that he had engaged in First Amendment protected activities and the alleged retaliation, taken together, were sufficient to "deter a person of ordinary firmness from exercising his First Amendment rights" and was not related to a legitimate penological interest. It also found that Bridges sufficiently alleged a retaliatory motive.
Taken together, this was sufficient to withstand a motion for summary judgment.
Therefore, the judgment of the district court was reversed with respect to the First Amendment free speech claims. The dismissal of three other claims was affirmed. The case was returned to the district court. See: Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009).

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Related legal case

Bridges v. Gilbert