Inmate free speech case is reinstated

Yes, inmates have rights. They can sue their jailors. In this case, the inmate claimed that Correction Officer Burge retaliated against him because plaintiff wanted him to preserve evidence for a future lawsuit. The district court threw out the case, but the Court of Appeals reinstates it because plaintiff engaged in protected activity under the First Amendment.

The case is Johnson v. Burge, a summary order decided on December 20. It all started when another inmate threw feces at Johnson, who asked Burge to preserve evidence of that incident. As for the evidence that Johnson was referring to, I don't know and I don't want to know. The district court said that Johnson's note to Burge was not free speech and therefore it could not predicate a retaliation claim. The Second Circuit (Katzmann, Parker and Wesley) disagrees.

Filing a grievance is protected activity, we know that. The Court of  Appeals adds, "but our previous cases have defined the scope of protected conduct more broadly, including actions that 'pursu[e] a grievance,' such as the 'attempt to find inmates to represent . . . grievants.' Requesting the preservation of evidence, much like attempting to find adequate representatives, pursues a grievance. Similarly, retaliation against prisoners for requesting the preservation of evidence unquestionably obstructs their right to seek the redress of grievances. Thus, Johnson’s letter qualifies as protected conduct."

What fascinates me about this case is that, at this point, inmates have broader First Amendment rights than the jailors who guard them. Under the Supreme Court's Garcetti precedent, public employees who speak on matters intimately connected to their public employment have no First Amendment rights to make that speech. That is not citizen speech, the Court said in 2006, but work speech, subject to whatever discipline management decides to impose. In theory, public workers are still protected under the First Amendment, but in application, most of their cases lose under Garcetti. Since the principles underscoring Garcetti (efficient management of public offices) do not apply in the prisoner context, the plaintiff here does not have to worry about Garcetti.