Federal Judge Allows Jailhouse Lawyer’s Retaliation Claim to Proceed

Prison Cells

Prisoners retain First Amendment free-speech rights even behind bars.

An inmate known as a jailhouse lawyer who wrote about Indiana State Prison’s suicide watch program, and who then allegedly faced repercussions for his publication, can proceed with his First Amendment retaliation claim, a federal district court has ruled.

Inmate Ty Evans, who regularly writes and publishes information on prison life, had a job in the prison with the suicide watch program as a suicide companion. Deputy Warden Dawn Buss hired Evans for this prison job. In obtaining the job, Evans had to sign a confidentiality agreement not to discuss anything about residents on suicide watch.

Later, Evans learned that two inmates on suicide watch complained about inhumane conditions. Evans spoke to the inmates and later published a piece about the program in Solitary Watch that was printed in May 2019.

When she learned of the article, Buss terminated Evans from his position as a suicide companion. Evans also alleged that Buss had him placed in solitary confinement for 90 days. Furthermore, Buss would not allow Evans to work as a general education diploma (GED) tutor.

Federal law, 28 U.S.C. §1915A, provides that when an inmate files a lawsuit, the federal court must review the prisoner’s complaint to determine if the claims have merit or are frivolous. U.S. District Judge Robert L. Miller Jr. determined that Evans could proceed with this retaliation claim in his Sept. 16, 2019, opinion in Evans v. Buss.

Miller identified the elements of a First Amendment retaliation claim as: (1) whether the plaintiff engaged in protected First Amendment activity; (2) whether the plaintiff suffered a deprivation that would deter First Amendment activity in the future; and (3) whether the First Amendment activity was a motivating factor in the subsequent retaliatory action by the defendant.

He noted that inmates retain the First Amendment right to file grievances and complain about prison staff. “The complaint plausibly states a retaliation claim against Ms. Buss and Mr. Evans may proceed with her on this claim,” Miller wrote.

The decision appears correct. A prison official should not place an inmate in solitary confinement because the official doesn’t like criticism.

Prisoners retain First Amendment free-speech rights even behind bars.

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, 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).

Leave a Reply

Your email address will not be published. Required fields are marked *