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“Public Concern” Test Does Not Apply to Prisoner Retaliation Claims; Speech Must be Consistent with Status as a Prisoner

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

The ruling resulted from an appeal by Barbara Kasper, an Indiana Department of Corrections (DOC) librarian. Kasper was sued by Charles Watkins, a prisoner law clerk at the Miami Correctional Facility (MCF), who accused Kasper of retaliating against him.

During a meeting with Kasper, Watkins and other MCF law clerks, Watkins spoke out against a policy that Kasper had instituted which prohibited him and the other law clerks from assisting prisoners with their legal work. The next day, Kasper threw away some of Watkins’ personal belongings that he had failed to remove after being told 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. Further, for 13 days, Kasper allegedly directed that Watkins not be given a pass to the law library, denying him access.

Watkins confronted Kasper several weeks later, complaining about some of his legal materials being missing and other prisoners being allowed to rummage through 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 after this confrontation charging Watkins with intimidation, which was later reduced to disorderly conduct.

Watkins sued Kasper under 42 U.S.C. § 1983 in 2005, alleging retaliation in violation of the First Amendment. He claimed that Kasper threw away his legal materials, wrote misconduct reports against him and denied him access to the library due to his objections to her policies and behavior. The case went to trial and a jury found in favor of Watkins, awarding him $150 in compensatory damages plus $1,000 in punitive damages. Kasper appealed.

The first issue considered by the Seventh Circuit was whether the so-called “public concern” test should apply to prisoner retaliation claims. The “public concern” test was created by the Supreme Court to address claims of First Amendment retaliation by government workers. Under the test, a public employee claiming retaliation must show that their speech was 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 disagreement would become a “constitutional matter.” Connick v. Myers, 461 U.S. 138, 147 (1983).

After careful consideration, the Seventh Circuit decided to “completely jettison the public concern test from [its] prisoner free speech jurisprudence.” Rather, “the 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 appellate court wrote. Accordingly, “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 of Appeals turned next to whether Watkins’ speech itself was entitled to First Amendment protection. In conducting its analysis, the appellate court was guided by the Supreme Court’s four-part test set forth 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 Seventh Circuit held that Watkins’ objections were not entitled to First Amendment protection because he “openly challeng[ed] Kasper’s directives in front of other prisoner law clerks, [thereby] imped[ing] [her] 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 appellate court emphasized.
For example, “Watkins could have taken the less disruptive approach of filing a written complaint.” He 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 also was not entitled to First Amendment protection. According to the Court of Appeals, “the confrontational, disorderly manner in which Watkins complained about the treatment of his personal property removed his grievance from First Amendment protection.” Watkins “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, his speech was not consistent with his status as a prisoner.

The jury’s verdict in favor of Watkins was accordingly reversed and the case remanded with instructions to enter judgment for Kasper. See: Watkins v. Kasper, 599 F.3d 791 (7th Cir. 2010), rehearing denied.The lesson from this case is clear – prisoners should communicate in writing when dealing with prison officials, if possible, and should keep copies of all such communications, including grievances. It is fully consistent with their legal status as “slaves of the state.”

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Related legal case

Watkins v. Kasper