When you’re a prisoner and you litigate against prison officials, you tend to get a lot of flack from those in charge. That is to say, their attitude seems to be “how dare you stand up for yourself and enforce your rights”? And the usual first reaction from prison officials when you start to enforce your rights in the courts is “retaliation.”
“Retaliation” has a specific definition in the prison setting. A prisoner has a right under the 14th Article in Amendment to the U.S. Constitution against retaliatory action while in prison. In 9th Circuit jurisprudence, retaliation occurs when prison officials do five things: (1) take adverse action against the prisoner (2) because of (3) the prisoner’s exercise of a constitutionally secured right, (4) the adverse action chilled the prisoner’s exercise of the constitutionaly secured right, and (5) the adverse action didn’t reasonably advance a legitimate correctional goal.
But there seems to be an apparent lack of training for prison officials to cover their glutes when retaliating against prisoners, because they’re really not slick when they break the law. And for us prisoners whom know how to enforce our rights in courts, that just means another claim in our complaints.
Think of it like this: say a prison official refused to allow you a witness statement at a disciplinary hearing, and you get found guilty and lose good time credits. You thereafter submit an appeal, claiming a due process violation. After your appeal, prison officials transfer you to another prison for no reason.
You would have two separate claims for your subsequent 42 U.S.C. 1983 lawsuit: (1) the initial due process claim and (2) a retaliation claim. The due process violation occurred because the right to call witnesses at prison disciplinary hearings is a right secured by the 14th Article in Amendment to the U.S. Constitution. See Wolff v. McDonnell, 418 U.S. 539 (1974). The retaliation occurred because prison officials (1) transferred you (2) because you (3) appealed [First Amendment Right] the initial due process violation, (4) the transfer was meant to chill your further exercise of your First Amendment rights and (5) the transfer didn’t serve ant legitimate correctional goal. See Pratt v. Rowland, 65 F. 3d 802, 896 n.4 (9th Cir. 1995).
Prison officials use retaliatory action to try to cow prisoners into being obedient offenders willing to accept whatever is done to them. Remember this: Just because they feed you bullshit doesn’t mean you have to eat it. If prison officials violate a prisoner’s rights, the prisoner needs to sue ’em. If they retaliate against the prisoner for suing ’em, sue ’em some more. Eventually prison officials will get tired of the prisoner financially benefitting from the officials’ failed attempts to abuse their authority.
BRIAN MATTHEWS, #796769
SCCC, H3A89L
191 Constantine Way
Aberdeen, WA 98520
good article, can I use it on my blog? I shared to myfacebook
Hi Renee,
Thanks for sharing on facebook. We appreciate that. You can write BRIAN MATTHEWS, #796769 (author of this piece) and ask him if you can use it for your blog. He’d love to hear that you enjoyed his post, and it will help encourage him to write more. You can email him via jpay.com or via snail mail. Thanks for commenting!
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