Federal appeals panel reinstates prison hearing officer’s retaliation claim

Tuesday, April 18, 2000

The lawsuit of a Michigan prison hearing officer, who alleged he was fired for speaking out against partiality in prisoner misconduct cases and against racial discrimination, has been reinstated by a federal appeals court panel.

Everett Perry, who was hired by the Michigan Department of Corrections in 1988 as an administrative law examiner to hear prisoner misconduct cases, was fired in 1993.

In 1996, Perry sued in federal court, contending that his civil rights had been violated. Among his claims, Perry alleged that prison officials violated his free-expression rights in two ways: terminating him for his findings in prisoner misconduct hearings and terminating him for complaining about racial discrimination.

In 1998, U.S. District Judge Patrick J. Duggan dismissed Perry’s lawsuit. However, last week a three-judge panel of the 6th U.S. Circuit Court of Appeals reversed in Perry v. McGinnis. The panel voted 2-1 on April 13 to reinstate Perry’s First Amendment claim.

The panel majority determined that the First Amendment protects Perry’s decisions in prisoner misconduct cases: “We find that a disciplinary hearing … is a communicative act entitled to First Amendment protection,” Judge Damon Keith wrote.

Keith then analyzed Perry’s retaliation claim under U.S. Supreme Court case law. To prevail on a First Amendment retaliation claim, a plaintiff must show the following:

  • The speech in question involved a matter of public concern.
  • The employee’s interest in free speech outweighed the employer’s efficiency interests.
  • The speech was a substantial factor in the adverse action taken against the employee.

Keith and Judge Eric Clay determined that Perry’s insistence that he remain impartial in prisoner cases was a matter of public concern. Perry alleged that a prison official first reprimanded him after it was discovered that he found prisoners not guilty in 18% of the cases, rather than in 10%, the rate that was the institutional standard.

Keith also wrote that “the Supreme Court has clearly established that racial discrimination is inherently a matter of public concern.”

The panel majority determined that the public has an interest “in a public employee’s efforts to remain undeterred by a public employer’s policy that seeks to limit constitutionally mandated fairness in inmate disciplinary hearings.”

The court said there was “overwhelming evidence” in the record to show that the prison officials expected prisoners to be found guilty 90% of the time.

“Such a system reeks of arbitrary justice, which can only be injustice,” Keith wrote.

“Because Perry’s speech served to ensure that the MDOC, an arm of the state, was operating in accordance with the law … it concerns the most public of matters,” Keith wrote.

Prison officials contended that the department’s interest in maintaining the accountability of its hearing officers outweighed Perry’s free-speech interests.

“We acknowledge that maintaining accountability is a legitimate interest,” Keith wrote. However, he ruled that “the record is not thorough enough to determine whether the MDOC’s interest in impairing Perry’s First Amendment right through discipline and termination was based on a desire to maintain accountability or a desire to maintain a 90% guilty rate.”

Judge Alan Norris dissented on the reinstatement of Perry’s First Amendment claim, though he agreed with the reinstatement of his equal-protection claim.

Norris said that the First Amendment claim should be dismissed because Perry’s speech “involved only a personal employment dispute, not a matter of public concern.”

The attorneys who handled the case could not be reached for comment.