Connections

The contents in this article that are not direct quotes or cites from the courts should in no way be construed as “legal advice” but rather just the opinion of the writer.

It is not uncommon to hear inmates or their families complain of being retaliated against after presenting written and/or oral grievances against DOC/MSP officials. Such practices have actually curtailed the majority of grievances because of fears of retaliation by DOC/MSP staff. For example: How many members of the public who come to visit inmates want to express complaints or grievances because of the way they were treated by staff during such process, but decide not to because they are in fear of being retaliated against, or that the person they are visiting will be retaliated against. How many visitors have, while waiting to be processed, heard other visitors say: “if we complain-we will lose our visits-or our visitor will get shipped to another prison”? many of our fears of retaliation can be directly traced to our personal knowledge of past experiences of retaliation by DOC/MSP staff following directly on the heels of oral or written grievances. For most readers who have regular interactions with their loved ones within the Montana State Prison System, they grow to understand that it is wise not to grieve DOC/MSP officials with whom they interact with during that process.

All of us should feel FREE to seek redress for our grievances questioning our governments authority without fear of reprisal or retaliation. When actions by state prison officials detour that free exercise it can be defined as a “chilling effect” on our first amendment rights.

There mays also be instances of inmates being retaliated against for filing grievances in where they claim officer misconduct and/or being adversely effected by DOC policies. Retaliation in such instances may be demonstrated by inmates being shipped to another prison or disciplinary action being initiated following directly on the heels of grievances.

The First Amendment to U.S. Constitution guarantees basic freedoms of speech, religion, press, assembly and the right to petition the government for Redress of grievances.

Of fundamental import to prisoners are their “First amendment- rights to file grievances.” Rhodes v. Robinson, 408 f.3d 559 (9th cir. 2005) ; citing: Bruce v. Ylst, 351 f.3d 1283, 1288(9th cir. 2003), and “To pursue civil rights litigation in the courts”. Shroeder v. McDonald, 55 f.3d 454,461(9th cir. 1995). Without those bedrock constitutional guarantees, inmates would be left with no viable mechanism to remedy prison injustices. And because purely retaliatory actions taken against a prisoner for having exercised those rights necessarily undermine those protections, such actions violate the constitution quite apart from any underlying misconduct they are designed to shield. See e.g. Pratt v. Rowland, 65 f,3d 802, 806(9th cir, 1995). In the Pratt case the court held that timing of an officials retaliatory action can be considered as circumstantial evidence of retaliatory intent. See e.g., Sorano’s Gasco, Inc. v. Morgan, 874 f.2d 1310, 1316(9th cir. 1989). In Hinez v. Gomez, 108 f.3d 265(9th cir. 1997) the court ruled that circumstantial evidence that a guard falsely charged a prisoner with disciplinary rule infraction moments after prisoner threatened to file a grievance against the guard was substantial evidence that the guard was retaliating against the prisoner. The 9th Circuit Court of Appeals has also clearly established that prisoners cannot be transferred arbitrarily for filing lawsuits and/or grievances.

Within the prison context, a viable claim of First Amendment retaliation entails five basic elements:

1. an assertion that a state actor took some adverse action against an inmate;
2. because of;
3. that prisoners protected conduct, and that such action;
4. chilled the inmates exercise of his First Amendment rights, and;
5. the action did not reasonably advance a legitimate correctional goal.

See e.g., Resnick v. Hayes, 213 f.3d 443, 449(9th cir. 2000) ; Barnett v. Centoni, 31 f.3d 813, 815-16(9th cir. 1994).

There remains a question of whether the same “prison standard” that applies to a prisoner applies to the public who experience retaliation by state officials with whom they interact??? Although there appears to be no clear precedent on such application one might apply a recent Third Circuit Court application to an inmate case. The court relied upon the “substantial motivating factor” analysis. See Rauser v Horn 241 f.3d 330(3rd cir. 2001). The circuit court in its opinion held that “government actions which standing alone do not violate the constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for the exercise of a constitutional right.” See e.g. Allah v. Seiverling, 229 F.3d 220, 224-45(3rd cir.2000) ;quoting: Thaddeus-X v. Blatter, 175 F.3d 378,386(6th cir.1999). It’s also important to not that under the Allah decision- a prisoner/plaintiff satisfies his burden of showing he suffered “adverse action” at the hands of state officials by demonstrating that the action “was sufficient to deter a person of ordinary firmness from exercising his constitutional rights.” The court then went on to join several other circuits in adopting the U.S. Supreme Courts burden shifting framework set forth in Mount Healthy Bd. of Ed. v. Doyle, 429 U.S. 274. 287, 97 S.Ct. 568, 50 L. Ed.2nd 471 (1977).

NOTE: Those who have suffered “retaliation” may wish to seek redress in court, However one must also remember that to file a 42 U.S.C. 1983 action in Federal Court, there is a prerequisite requiring exhaustion of administrative remedies (grievance process DOC Policy 3.3.3.). such policy requires you to initiate the process within (5) working days from the time of the incident being grieved.

~Robert Rose | MSP