Hale, Gregory v. Scott, Augustus

In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-1949
GREGORY HALE,
Plaintiff-Appellant,
v.
AUGUSTUS SCOTT, JR., et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Central District of Illinois.
No. 01-CV-3052—Harold A. Baker, Judge.
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SUBMITTED APRIL 19, 2004—DECIDED JUNE 14, 2004
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Before POSNER, EVANS, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Hale, an Illinois prison inmate,
brought this suit against members of the prison’s staff under
42 U.S.C. § 1983, claiming that they had deprived him of his
freedom of speech by disciplining him for having included
in a prison grievance that he filed an accusation of sexual
misconduct by a prison guard. There is also a retaliation
claim, but it is completely groundless and needn’t be
2 No. 03-1949
discussed. The district court granted summary judgment for
the defendants on both claims.
In the grievance Hale complained that a female guard
named Drone had failed to notify him that it was time to
eat, but he embellished the complaint with mention of a
“rumor” that Drone was “screwing a lot of the Officer’s on
the midnight shift along with a few Sergants and Lt’s. etc.”
After the prison investigated the rumor and found it to be
baseless, Hale was punished for violating a prison regula-
tion that forbids “insolence,” defined as “talking, touching,
gesturing or other behavior that harasses, annoys, or shows
disrespect.” Ill. Admin. Code tit. 20, § 504, App. A. He was
placed in disciplinary segregation for a week and deprived
of certain privileges.
The inclusion in Hale’s grievance of the rumor of Drone’s
sexual misconduct was libelous, and even if a prison griev-
ance were the legal equivalent of a pleading in court, a libel
so unrelated to the subject of the pleading would not be
privileged. Defend v. Lascelles, 500 N.E.2d 712, 716 (Ill. App.
Ct. 1986); Ginsburg v. Black, 192 F.2d 823, 824 (7th Cir. 1951);
Spencer v. Spencer, 479 N.W.2d 293, 295-96 (Ia. 1992); Myers
v. Pickering Firm, Inc., 959 S.W.2d 152, 163 (Tenn. App. 1997);
Freeman v. Cooper, 390 So. 2d 1355, 1347, 1360 (La. App.
1980). Nor is a libel privileged by being labeled a “rumor”
the accuracy of which the libeler declines to vouch for. Cobbs
v. Chicago Defender, 31 N.E.2d 323, 325 (Ill. App. 1941); Chang
v. Michiana Telecasting Corp., 900 F.2d 1085, 1090 (7th Cir.
1990); Ringler Associates Inc. v. Maryland Casualty Co., 96 Cal.
Rptr. 2d 136, 148 (App. 2000). This is implicit in the rule that
republishing a libel is not privileged, Owens v. CBS Inc., 527
N.E.2d 1296, 1308 (Ill. App. 1988), even though the
republisher doesn’t vouch for its truth. A “rumor” defense
would be particularly unfortunate. It often is impossible to
track down a rumor to its source; such a defense would
No. 03-1949 3
therefore insulate many libels, however outrageous, from
legal sanctions. As there is no indication that Hale had any
basis for believing the rumor about Drone to be truthful, he
was guilty of “actual malice” and so his libel was unpro-
tected by the Constitution.
It would be unprotected even if the “actual malice” rule
would privilege the repetition of the rumor in other settings.
Prison regulations that forbid inmates to behave insolently
toward guards are constitutional irrespective of New York
Times v. Sullivan. Ustrak v. Fairman, 781 F.2d 573, 580 (7th
Cir. 1986). “If inmates have some First Amendment rights,
still they only have those rights that are consistent with
prison discipline.” Id. at 580; see also Shaw v. Murphy, 532
U.S. 223, 229 (2001); Rowe v. Shake, 196 F.3d 778, 782 (7th Cir.
1999). In Ustrak, where the inmate had written a letter
calling prison officials “stupid lazy assholes,” we upheld the
imposition of discipline for abusive and disrespectful
conduct because the regulation forbidding such conduct
bore a “direct and elementary relation to the needs of prison
administration.” 781 F.2d at 580. Accusations of sexual
misconduct unrelated to the accusing inmate’s legitimate
concerns (Hale was not, for example, accusing Drone of
sexual harassment of him) are species of such insolence.
Hadden v. Howard, 713 F.2d 1003, 1008-09 (3d Cir. 1983); cf.
Leonard v. Nix, 55 F.3d 370, 375 (8th Cir. 1995). To privilege
them merely because they are appended irrelevantly to a
grievance would make no sense. Cowans v. Warren, 150 F.3d
910, 912 (8th Cir. 1998); Leonard v. Nix, supra, 55 F.3d at 375;
Hadden v. Howard, supra, 713 F.2d at 1005-07; cf. Smith v.
Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001). Hale is like the
“purveyor of pornographic pictures [who] pastes a copy of
the Declaration of Independence on the back of each picture
and argues that judged as a whole his product has redeem-
ing social value. United States v. A Motion Picture Film
Entitled ‘I Am Curious-Yellow,’ 404 F.2d 196, 201 (2d Cir.
4 No. 03-1949
1968) (Friendly, J., concurring); see Valentine v. Chrestensen,
316 U.S. 52 (1942).” Ty, Inc. v. Publications Int’l Ltd., 292 F.3d
512, 519 (7th Cir. 2002). Anyway, groundless allegations in
a legal pleading can be sanctioned, see, e.g., Fed. R. Civ. P.
11(b)(2); In re Mann, 311 F.3d 788 (7th Cir. 2002), without
anyone supposing that First Amendment issues are raised;
it would be beyond paradoxical to suggest that if the
allegations happened to be not only baseless but also
libelous they would be entitled to greater legal protection.
We are mindful of Hargis v. Foster, 312 F.3d 404, 409-12
(9th Cir. 2002), where a divided panel of the Ninth Circuit
held that a court can uphold discipline (in that case for
threatening a guard with a lawsuit if he failed to comply
with the prisoner’s demand) only if, in the court's judgment,
the particular violation of a lawful prison regulation
warranted the discipline. The court would thus have to
decide “whether Hargis’s statements in fact implicated
legitimate security concerns,” id. at 411, or whether, on the
other hand, “charging Hargis with such a severe disciplin-
ary infraction as coercion was an ‘exaggerated response’ to
conduct that posed, at most, a de minimis risk to security.”
Id. at 412. Judge Tallman’s dissent demonstrates the incon-
sistency of the majority opinion with the prison jurispru-
dence of the Supreme Court. Id. at 413-16. If the prisoner can
show that he did not violate the regulation, then he may
have a remedy. But merely to show that the needs of the
prison did not require that the regulation be enforced in the
particular case against a particular prisoner and by means
of the particular sanction chosen by the prison authorities
does not justify federal judicial intervention. Ustrak v.
Fairman, supra, 781 F.2d at 575; Hameetman v. City of Chicago,
776 F.2d 636, 641 (7th Cir. 1985); Interstate Towing Ass’n, Inc.
v. City of Cincinnati, 6 F.3d 1154, 1164 n. 10 (6th Cir. 1993).
The effect of such intervention would be to treat valid
No. 03-1949 5
regulations as merely presumptively valid, to shift sanction-
ing discretion from the prison authorities to the federal
courts, and in short to intrude those courts too deeply into
the day-to-day operation of the nation’s prisons.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-14-04