This inmate claims that after the objected to sexual abuse in the course of a pat-frisk, he suffered retaliation in the form of solitary confinement as well as a vulgar threat from a correction officer who was present when plaintiff complained about the pat-frisk. But plaintiff only stayed in keeplock for one day. Other prison officials and employees told plaintiff to file further grievances or he would wind up back in the slammer. The retaliation continued when CO's beat up plaintiff, causing him to lose consciousness. He sues under the First Amendment, claiming retaliation for redressing his grievances.
The case is Hayes v. Dahlke, issued on October 5. Inmates have the First Amendment right to pursue internal grievances over their mistreatment, and any retaliation is actionable against the offending officers if their response would deter a reasonable inmate from filing another grievance. We call that an "adverse action."
We have a few retaliation claims here. First, plaintiff says he suffered an adverse action when a CO filed a false misbehavior report against him in retaliation for his grievance. The state says the one-day confinement is not enough for an adverse action and that the offending officer did not know that plaintiff had filed a grievance, but the Court of Appeals (Livingston, Sullivan and Nardini) says the jury should resolve these issues. On the adverse action issue, the record is too fuzzy to say with clarity exactly how long plaintiff would have remained in keeplock, as he was also punished for additional misbehavior. The point is that ambiguities are for the jury, not a court to resolve on a summary judgment motion. While the state further argued that there was no connection between the grievance and the adverse action because of the one-month lapse between the two events, that time period is enough to win the case at trial and, besides, plaintiff says the continuous and "sexually-charged verbal harassment throughout the time between the initial grievance and the misbehavior report" further supports plaintiff's claim that the grievance resulted in the adverse action. The moral of the story, the Court of Appeals says, is that "sending a prisoner to keeplock for some indeterminate amount of time could be enough to chill speech of a prisoner of ordinary firmness," especially in light of the other threats that were directed toward plaintiff.
Another claim involves another CO's verbal threats against plaintiff that "maybe all of this would go away" if he stopped filing grievances, and the CO's refusal to file plaintiff's grievance against the jail for a month. These kinds of threats are not sufficiently adverse under the First Amendment to allow plaintiff to proceed with his retaliation claim, even though, as the Court says, these were "implicit threats." But the threats were not accompanied with concrete action. The one-month delay is not enough for plaintiff, who, after all, is an inmate who must tolerate inconveniences that the rest of us do not have to tolerate.
We also have an Eighth Amendment claim against defendant Dahlke, who, according to plaintiff, sexually abused him during a pat frisk. The district court said this was not enough for a constitutional claim, but the Court of Appeals disagrees, holding that while jails are allowed to conduct pat frisks to ensure security at the jail, "the routine nature of these pat frisks does not shield an officer from liability" if the officer abuses his authority to "gratify his sexual desire" or "humiliate" the inmate. While the trial court said in dismissing this claim that the officer did not penetrate plaintiff's body or fondle his genitals, plaintiff said the pat-frisk was unlike anything he had experienced in his 13-years in the prison system, and that it lasted five to eight minutes, longer than usual. The parties disagree about the invasive nature of this frisk, but such a "swearing match" is for the jury, not the court on a summary judgment motion.