Wednesday, October 9, 2013

Threats to poison the inmate support First Amendment claim

Another pro se inmate litigant wins an appeal against the State Attorney General's office. This happens from time to time. In this case, the inmate successfully argues that a jury may find that he was the victim of First Amendment retaliation in jail.

The case is Ford v. C.O. Palmer, a summary order decided on September 24. Ford claimed that the corrections officer retaliated against him for reporting that did not give Ford hot water for his Ramadan breakfast. The district court threw out this claim sua sponte, which probably means that the State did not have to even file a formal motion to win the case. The Court of Appeals (Calabresi, Livingston and Chin) says Ford states a claim.

Ford alleges that a corrections officer threatened "to put some kind of substance in plaintiff’s hot water for writing complance [sic] and grievances to defendant Smith for being denied his right to practice his religion.” Is this a threat to poison the plaintiff? It might be. The Court of Appeals says "the complaint alleges that Officer Law threatened to poison Ford in retaliation for the statements Ford made." While the district court said that "verbal threats must be more definite and specific than Officer Law’s alleged threat in order to constitute 'adverse action,' [i]n fact, in this context, the vague nature of the alleged threat—i.e., not telling Ford when or how Officer Law planned to poison him—could have enhanced its effectiveness as a threat and increased the likelihood that a person of ordinary firmness would be deterred  from filing additional grievances."

So the holding is that a threat to poison the inmate is an adverse action under the First Amendment. A second holding is also interesting. The district court said that plaintiff did not really have a retaliation claim because the threat to poison plaintiff's water did not deter him from filing more grievances. The Court of Appeals rejects this reasoning. "As we have stated, the 'objective test [for First Amendment retaliation] applies even where a particular plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits.' Moreover, the record contains evidence that plaintiff was in fact deterred on one or more occasions from accepting hot water from Law."

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