7th Circuit reinstates Ill. prisoner’s retaliation claim

Thursday, August 6, 2009

A federal appeals court has reinstated the retaliation claim of an Illinois
inmate who alleged officials punished him for filing a grievance and publicizing
a display by several prison guards of a noose in the prison.

Lester Dobbey, an African-American inmate at Menard Correctional Center, and
two other inmates saw five Caucasian guards playing cards in the main control
room in January 2007. Suspended from the ceiling was a hangman’s noose — a
symbol associated with lynching and racial harassment. Dobbey said that one
guard swatted the noose back and forth and “crossed his arms looking crazy with
evil eyes.” Dobbey, whose inmate job was janitor, filed a grievance about the
noose and then mailed letters to various news outlets about the display.

An investigation confirmed a noose in the control room but Dobbey said he
never received a satisfactory response to his grievance. Some paperwork
regarding Dobbey’s grievance was reportedly lost.

A month later, a prison official filed a disciplinary charge against Dobbey
for allegedly failing to scrape a piece of wax off a floor in the prison. A
disciplinary committee upheld the charge and dismissed Dobbey from his custodial

Dobbey then filed a lawsuit in federal court over the noose incident, the
loss of his paperwork and the subsequent retaliation. Dobbey claimed the display
of the noose — with its message of racial harassment — constituted cruel and
unusual punishment under the Eighth Amendment. He contended that the loss of his
paperwork and inadequate handling of his grievance violated his due-process
rights. Finally, he alleged prison officials retaliated against him in violation
of his free-petition and free-speech rights under the First Amendment after he
filed his grievance.

In June 2008, a federal district court in Illinois dismissed all of Dobbey’s
constitutional claims. With respect to his First Amendment claim, the district
court reasoned that an inmate’s First Amendment claims must relate to matters of
public concern or importance rather than amount to a “personal gripe.” The
district court classified the plaintiff’s claim as one such gripe.

On appeal, a three- judge panel of the 7th U.S. Circuit Court of Appeals
unanimously reinstated the First Amendment claim in last week’s opinion in Dobbey v. Illinois
Department of Corrections.

In his July 28 opinion for the panel, Judge Richard Posner noted that “it is
not clear that the right conferred by the First Amendment to ‘petition the
Government for the redress of grievances’ should be thought to embrace every
nonfrivolous complaint that a prisoner might make.” He added that the scope of
the right of petition was “unsettled” but said that issue did not need to be
decided to resolve Dobbey’s appeal.

“This is not the case to try to straighten out the law of petitioning for
redress of grievances,” Posner explained. “For even if the right does not
embrace purely personal grievances, still we do not agree with the district
judge that the plaintiff’s grievance was merely a ‘personal gripe,’ as if he had
been complaining that the prison commissary had shortchanged him for some item
that he had bought.”

Aside from the dispute over the petition issue, Posner elaborated that even
if Dobbey’s claim had involved a personal gripe, “retaliation for uttering it
would be … an infringement of freedom of speech.”

The case now returns to the federal district court for further fact-finding
and proceedings. Posner offered “no opinion on the ultimate merits” of Dobbey’s
First Amendment claim.

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