Thursday, January 2, 2014

Achtung! The inmate is filing a lawsuit.

If you are sitting in jail and feel aggrieved, why not file a lawsuit? You can, but the courts know what you're up to. This is why they pay close attention to prisoner civil rights claims in assuring they do not clog up the federal courts.

The case is Faulk v. Fisher, a summary order decided on November 21. Faulk is locked up in the big house. One day after he filed an internal grievance, some corrections officers filed misbehavior reports against him. These reports, if true, can result in discipline against the inmate. The state concedes that filing the grievance is protected conduct under the First Amendment. "[S]o the only issue is whether Faulk has produced sufficient evidence to raise a question of material fact about whether his successful grievance was a 'substantial or motivating factor' in the disciplinary charges."

Now, if plaintiff was not an inmate, he might have a good case, at least on paper. Immediate retaliation looks like First Amendment retaliation. But not here. The Court of Appeals (Hall, Livingston and Sack) says, "“[P]risoner retaliation claims are easily fabricated, and ... pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration.' Accordingly, while we have held that temporal proximity between protected conduct and an adverse action constitutes circumstantial evidence of retaliation, we have consistently required some further evidence of retaliatory animus before permitting a prisoner to proceed to trial on a retaliation claim."

It is true that "Faulk has introduced circumstantial evidence of retaliation: his 'excellent' disciplinary history prior to his successful grievance, and the two misbehavior reports issued by corrections officers Michael Gian and Jacob Lukaszek the day after Faulk succeeded on his grievance." But, the Court of Appeals says, "he can point to no more." While one corrections counselor did make reference to plaintiff's grievance and warned him against filing more, that counselor had nothing to do with the disciplinary measures against plaintiff. The officers who filed the misbehavior reports against plaintiff were not the target of plaintiff's prior grievance. Plaintiff alleges that one corrections officer "used" another to file the report against plaintiff, but that kind of conclusory allegation cannot save a prisoners' rights claim. More broadly, officers who made hostile comments to plaintiff did not appear to do so because of his grievance. And, the misbehavior reports against plaintiff were evidently substantiated.

The claim thus fails. The Court of Appeals does not often affirmatively tell us that it wants inmates to corroborate their retaliation claims, but it does so here. Since plaintiff cannot satisfy the corroboration test, he case dies on the vine.


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