Inmate wins First Amendment retaliation appeal

You'd be surprised how often inmates win their appeals in the Second Circuit. This case alleges that correction officers threatened and then assaulted the plaintiff after they learned he wanted to file a grievance challenging prison conditions. The case was dismissed under Rule 12, and other portions of the case were dismissed on summary judgment, but the Court of Appeals finds plaintiff has a case, in part.

The case is Walker v Senecal, issued on March 6. Senecal is the CO. According to plaintiff, he ripped up plaintiff's grievance and said plaintiff would wind up "dead" or "in the box" if plaintiff pursued the grievance. The box is the special housing unit and, really, the last place any inmate wants to find himself. The next day, two other CO's slapped plaintiff around and roughed him up and asked plaintiff "if you saw how easily he could get killed for filing grievances against Officer Senecal" and said that any such grievance would land plaintiff in the box. Plaintiff also alleged that Senecal recruited another CO, Benware to retaliate against plaintiff by filing a false misbehavior report against him and firing plaintiff from his job in the prison law library.

Here are the holdings:

1. Plaintiff cannot show a connection between his First Amendment speech (filing a grievance) and Benware's actions. It is not enough for plaintiff to note that these two CO's hung out in the same area at the jail, and plaintiff's other attempts to prove this connection are conclusory.

2. But plaintiff has a case against Senecal, The Court of Appeals (Livingston, Jacobs and Menashi) rejects the trial court's finding that destroying plaintiff's grievance and threatening to throw him into the box were not adverse actions. They were. What also factors into this holding are the officers who slapped and threatened plaintiff over the grievance, making reference to Senecal in doing so. (There was also a retaliatory pat frisk against plaintiff; while cases hold that such pat frisks can also constitute an adverse action in the prison context, the pat frisk in this case does not rise to that level because it took place more than five months after the last retaliatory action, and pat frisks are common in the prison system).

 This does not seem a remarkable holding. The standard is whether the CO's actions would dissuade an inmate from again asserting his speech rights. In addition, the Court of Appeals has held that "a combination of seemingly minor incidents [may] form the basis of a constitutional retaliation claim once they reach a critical mass." The case for that is Tripathy v. McKoy, 103 F.4th 106 (2d Cir. 2024). Ripping up the grievance and threatening the box would convince the inmate that it was not in his interests to speak out again.

The lesson here is that the district court has to aggregate the minor actions to determine if the plaintiff has a retaliation case. That is also the rule in employment discrimination cases. Such an approach provides a realistic view of what the plaintiff really endured. For now, due to the extended discussion on what constitutes an adverse action, this is the definitive cases involving retaliation against prison inmates who seek relief under the First Amendment.