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Third Circuit Finds that Prisoners’ Verbal Grievances are Constitutionally Protected

by Christopher Zoukis

The Third Circuit Court of Appeals has held that a prisoner’s verbal grievance made to prison staff was protected speech under the First Amendment, and gave rise to a civil action when the prisoner faced retaliation for making a verbal complaint.

Charles Mack, incarcerated at the Federal Correctional Institution in Loretto, Pennsylvania, filed a lawsuit over anti-Muslim harassment at his prison work assignment in the commissary. According to his complaint, prison guards Doug Roberts and Samuel Veslosky discriminated against and harassed him because he was a Muslim, causing him to fear being harmed due to his religious beliefs.

Specifically, Mack alleged that Roberts slapped an “I LOVE BACON” sticker on his back, and in front of several prisoners Veslosky said, “there is no good Muslim, except a dead Muslim!” When Mack spoke to Jeff Stephens, the guards’ supervisor, about these incidents, he was told they would be looked into.

But Stephens did nothing and Mack was later fired from his commissary job for the pretextual reason that he was “caught bringing [commissary] slips in for inmates.”

Mack again complained to Stephens, who again said he’d look into it but did nothing. Mack also verbally complained to Warden John Yost, who allegedly replied, “What do you expect me to do?” Mack filed suit after filing formal grievances that went unanswered, claiming violation of his rights under the First Amendment, Fifth Amendment and the Religious Freedom Restoration Act (RFRA).

After multiple trips to the Third Circuit, on October 11, 2016 the Court of Appeals held in a lengthy ruling that Mack’s verbal grievance was considered First Amendment speech and thus protected from retaliation – an issue of first impression in that circuit.

Noting that a citizen’s verbal petition to a government official would be protected under existing law, the appellate court wrote, “we are not persuaded that an oral grievance should not receive constitutional protection solely because it is lodged by a prisoner as opposed to a civilian. It is well-established that inmates do not relinquish their First Amendment right to petition by virtue of being incarcerated.”

Ironically, the Court of Appeals found the Bureau of Prisons’ own policy supported this conclusion. Because the BOP requires prisoners and staff to attempt informal resolution of complaints, “[i]t would be illogical to allow prison officials to retaliate against Mack for his oral complaint if FCI Loretto encourages the type of informal resolution that Mack attempted.”

In addition, the defendants were not entitled to qualified immunity with respect to Mack’s First Amendment retaliation claim.

“Retaliatory termination is clearly unlawful, both inside and outside the prison context,” the Third Circuit stated. “The fact that the officers retaliated against Mack before he reduced his grievance to writing is inconsequential. While we have never held before today that a prisoner’s oral grievance, in particular, is constitutionally protected, we have certainly never suggested that such a grievance is entitled to lower protection than one reduced to writing.”

The appellate court also held that Mack’s RFRA claim could proceed and would allow for monetary damages against guards Roberts and Veslosky in their individual capacities. His claims related to violations of his religious exercise and equal protection rights were dismissed.

Judge Jane R. Roth issued a dissenting opinion, saying in her view, “with regard to a retaliation claim made by the inmate of a prison, oral complaints should not be considered protected conduct under the First Amendment.”

The case was remanded to the district court for further proceedings on the remaining claims. Mack, who had since been released from prison, was appointed counsel on remand; his lawsuit remains pending. See: Mack v. Loretto, 839 F.3d 286 (3d Cir. 2016). 

Related legal case

Mack v. Loretto


 

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