Qualified Immunity Once Again Protects Prison Officials

Freedom of Speech

The Seventh Circuit questioned whether a threat to file a grievance was a form of protected speech.

Qualified immunity continues to be a powerful doctrine that insulates many government officials from liability for constitutional violations unless they violate clearly established law. Prison officials often utilize this doctrine successfully to ward off lawsuits from inmates.

A prime example of this is a recent decision from the U.S. Seventh Circuit Court of Appeals that rejected two First Amendment claims by an inmate based on qualified immunity. The short shrift given to these claims also shows the lack of respect inmate claims often receive from the judiciary.

The dispute began at Illinois River Correctional Center and involved inmate Ramon Clark, who worked in the prison’s bakery. The bakery provides goods for state-supported schools, hospitals and prisons.

Instructor Jody Reed found a latex glove under uncooked bread when Clark was working. Reed fired Clark for this infraction. Clark then responded that he would file a grievance. Reed then issued Clark a disciplinary ticket for committing a health and safety violation.

Clark contended he was punished in retaliation for threatening to file a grievance.

But that was not Clark’s only First Amendment claim. Prison Lieutenant Brad Johnson investigated the glove incident and told Clark that if he would serve as an informant in pending prison investigations into the production of alcohol in the bakery and another safety investigation in the bakery, he would make Clark’s punishment go away.

Clark declined to serve as an informant for safety reasons. Shortly after, a prison disciplinary committee found Clark guilty of the glove violation, limited his out-of-cell privileges and transferred him to a unit where he could not have a job.

Clark sued, alleging that his First Amendment rights were violated in both these instances. In both cases, he pleaded retaliation. He alleged prison officials retaliated against him for (1) threatening to file an oral grievance and (2) for refusing to be an informant.

After a federal district court rejected his claims, Clark appealed to the Seventh Circuit. On June 28, 2019, a three-judge panel of the Seventh Circuit affirmed the lower court in Clark v. Reed.

The appeals court determined that qualified immunity doomed both claims. The Seventh Circuit questioned whether a threat to file a grievance was a form of protected speech in the first place. It acknowledged that the Third Circuit had recognized threats to file grievances were protected speech, but said that in any event the official was entitled to qualified immunity because the right was not clearly established.

On the informant question, the Seventh Circuit also applied qualified immunity. “Clark’s refusal to cooperate might not be protected,” the appeals court wrote. “This ambiguity entitles [the prison lieutenant] to qualified immunity.”

The Seventh Circuit employed a crabbed analysis on both First Amendment retaliation claims. Instead, it reflexively relied on qualified immunity.

Such is the unfortunate reality for many civil rights plaintiffs, particularly prisoners.

David L. Hudson Jr. is a Freedom Forum Institute Fellow for First Amendment Studies, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).

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