Bridges, Jimmy v. Huibregtse, J.

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1551
JIMMY D. B RIDGES,
Plaintiff-Appellant,
v.
T IM G ILBERT, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06-C-544-S—John C. Shabaz, Judge.
A RGUED M AY 6, 2008—D ECIDED M ARCH 4, 2009
Before E ASTERBROOK, Chief Judge, and W OOD and
T INDER, Circuit Judges.
T INDER, Circuit Judge. Jimmy Bridges, an inmate at the
Wisconsin Secure Program Facility, witnessed events
leading to the death of a fellow inmate. After he assisted
the inmate’s mother by providing an affidavit in a wrong-
ful death lawsuit against prison officials, Bridges
perceived that certain prison officials and guards (to
whom we refer collectively as “Defendants”) had begun to
harass him. He filed a pro se § 1983 action alleging that
2 No. 07-1551
the Defendants retaliated against him for exercising
his First Amendment rights and prevented him from
petitioning the government for redress of grievances.
The district court dismissed the complaint for failure to
state a claim.
I. Background
Because this appeal is taken from the district court’s
dismissal of the complaint for failure to state a claim, we
consider as true the facts alleged in the complaint. Windy
City Metal Fabricators & Supply, Inc. v. CIT Technical Fin.
Servs., Inc., 536 F.3d 663, 666 (7th Cir. 2008). Bridges was
housed in the Wisconsin Secure Program Facility in a
cell adjacent to inmate Donnie Powe. On the night of
March 14, 2003, Bridges yelled through a vent to greet
Powe. Powe complained to Bridges that his drinking cup
contained a terrible smell, and he had been vomiting. A
nurse brought Powe some Tylenol and Tums. The next
morning, Bridges called through the vent again to check
on Powe. Powe responded in a weak voice that he was
really sick, his body was hurting all over, and he could
not eat. Later, a correctional officer asked Powe whether
he could hand his meal tray to the officer, but Powe did
not respond. Several different officers repeated the ques-
tion over the next few hours, but Powe never answered.
The officers eventually called another nurse to check on
Powe. Around the same time, other correctional officers
also came to Powe’s cell, and Powe told them he was in
terrible pain and could not move. A group of at least
four officers threatened to “suit up” on him, i.e., to beat
No. 07-1551 3
him, for not responding. About 45 minutes later, prison
staff extracted Powe from his cell in a restraint chair and
took him to be monitored in the Health Services Unit.
Powe died the following day.
Powe’s mother Eunice brought a wrongful death suit
against several prison employees, and her attorneys
interviewed Bridges in March 2005 as a witness to the care
Powe received while in his cell. Bridges provided an
affidavit and agreed to testify if the case went to trial. He
was informed that his affidavit had been used by the
attorneys in a summary judgment response filed in
April 2005, and later he learned that the parties had
reached a settlement agreement.
Bridges believes that Defendants began a campaign
of harassment against him in retaliation for his participa-
tion in the Powe lawsuit. From March to December 2005,
certain Defendants caused his incoming and outgoing
mail to be delayed. One Defendant often kicked his
cell door, turned his cell light off and on, and opened
his cell trap and slammed it shut to startle him when he
was sleeping. He complained to her in November 2005,
and in response, she filed an unjustified disciplinary
charge against him. Another Defendant upgraded that
unjustified charge to a “major offense,” indicating that
his conduct created a risk of serious disruption at the
prison. Bridges was later cleared of any wrongdoing in
connection with the disciplinary charge.
Bridges filed several grievances in response to these
incidents, and he believes the retaliation continued through
improper treatment of his grievances. A few examples—
4 No. 07-1551
Defendants found technical reasons to repeatedly reject his
grievances, such as alleging too many issues in a single
grievance or not alleging enough facts to support the
issues; Defendants falsely stated that his grievance
appeal had not been filed within the required time
period and dismissed it; and Defendants failed to
perform investigations on his grievances or provided
misleading information in their responses.
On September 22, 2006, Bridges filed a pro se § 1983
action with the district court, claiming that the
Defendants retaliated against him for exercising his First
Amendment rights to free speech and to petition for
redress of grievances, and also prevented him from
filing grievances. The district court screened the com-
plaint under 28 U.S.C. § 1915A and dismissed the
claims against five Defendants because Bridges had
not alleged facts to support claims against them. 1 The
remaining nine Defendants filed a motion to dismiss
under Rule 12(b)(6) for failure to state a claim and for
Bridges’s failure to exhaust his administrative remedies
under the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). Citing Brookins v. Kolb, 990 F.2d 308 (7th Cir.
1993), the district court concluded that Bridges did not
1
28 U.S.C. § 1915A requires a district court to review a com-
plaint in a civil action in which a prisoner seeks redress from
a governmental entity or officer or employee of a govern-
mental entity and dismiss the complaint (or a portion thereof)
if the complaint is frivolous, is malicious, or fails to state a
claim upon which relief may be granted or seeks monetary
relief from a defendant who is immune from such relief.
No. 07-1551 5
state a claim because he did not engage in protected
First Amendment activity. He filed an affidavit in a
wrongful death lawsuit that was personal to Powe—which
did not rise to the level of a public concern so as to con-
stitute protected conduct. Because the court concluded
that he did not engage in protected activity, the court
declined to address whether Bridges had exhausted
his administrative remedies. Bridges appeals from the
Rule 12(b)(6) ruling but does not challenge the dismissal
of five Defendants under § 1915A.
II. Discussion
We review a district court’s grant of a motion to
dismiss for failure to state a claim de novo. St. John’s
United Church of Christ v. City of Chicago, 502 F.3d 616, 625
(7th Cir. 2007). To satisfy the notice-pleading standard, a
complaint must provide a “short and plain statement of
the claim showing that the pleader is entitled to relief,”
which is sufficient to provide the defendant with “fair
notice” of the claim and its basis. Erickson v. Pardus, 127
S. Ct. 2197, 2200 (2007) (per curiam) (citing Bell Atlantic
Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007)); Fed. R. Civ.
P. 8(a)(2). The complaint “must actually suggest that the
plaintiff has a right to relief, by providing allegations
that raise a right to relief above the speculative level.”
Windy City, 536 F.3d at 668 (citing Tamayo v. Blagojevich,
526 F.3d 1074, 1081 (7th Cir. 2008)). However, we
construe pro se complaints liberally and hold them to a
less stringent standard than formal pleadings drafted by
lawyers. Erickson, 127 S. Ct. at 2200 (citation omitted);
Obriecht v. Raemisch, 517 F.3d 489, 492 n.2 (7th Cir. 2008).
6 No. 07-1551
A. Bridges’s Free Speech Claim
To prevail on a First Amendment retaliation claim,
Bridges must ultimately show that (1) he engaged in
activity protected by the First Amendment; (2) he suffered
a deprivation that would likely deter First Amendment
activity in the future; and (3) the First Amendment
activity was “at least a motivating factor” in the Defen-
dants’ decision to take the retaliatory action. Woodruff v.
Mason, 542 F.3d 545, 551 (7th Cir. 2008) (quoting Massey v.
Johnson, 457 F.3d 711, 716 (7th Cir. 2006)). Bridges’s com-
plaint alleged that Defendants retaliated against him
for participating in the Powe lawsuit. The district court
determined that Bridges’s complaint failed to state a
claim because his allegations, taken as true, would not
satisfy the first element, that he had engaged in activity
protected by the First Amendment. In reaching this
conclusion, the district court relied on the free speech
discussion from our decision in Brookins.
In Brookins, a prison inmate filed a § 1983 complaint
claiming that prison officials had retaliated against him
by removing him from his position co-chairing a prison-
approved group called the Paralegal Base Committee
(which assisted inmates with legal research and
preparing legal documents) and then transferring him to
another facility. The retaliation occurred after Brookins
wrote a letter, written on official Committee letterhead
and sent to various prison officials, requesting that all
security staff involved in filing negative conduct reports
against a certain inmate be given polygraph examina-
tions prior to the inmate’s disciplinary hearing. He also
No. 07-1551 7
offered to pay for the exams from the funds of the Com-
mittee. Under the prison’s regulations, Brookins should
have requested permission from the Committee’s advisor
prior to sending the correspondence; he also should
have had the Committee’s advisor co-sign the request,
since it purported to authorize spending of Committee
funds. Brookins did neither. As a result, he was removed
from the Committee and transferred to another prison
shortly thereafter.
Brookins asserted a violation of his First Amendment
associational right to act on behalf of the other prisoners.
We explained that a prisoner’s constitutional rights,
particularly associational rights, are necessarily cur-
tailed by imprisonment. Id. at 312-13. We concluded that
Brookins had not satisfied his burden on summary judg-
ment to demonstrate that the prison officials, in reacting
to Brookins’s violation of the regulations, “exaggerated
their response to preserving the legitimate penological
objectives of the prison environment.” Id. at 313. Brookins
also claimed that his letter implicated his free speech
rights, but we rejected his argument because “he ha[d] not
demonstrated that the speech contained in his letter
rose to the level of protected speech. Brookins did not
write the letter to inform the prison officials about a
prison issue that was a matter of public issue or con-
cern.” Id. For support, we cited to Justice Stevens’s con-
curring opinion in RAV v. City of St. Paul, Minn., 505
U.S. 377, 420-21 (1992) (Stevens, J., concurring) and its
discussion of the concept that the First Amendment is
defined by the content of the speech in question; for
example, “[s]peech about public officials or matters of
8 No. 07-1551
public concern receives greater protection than speech
about other topics.”
Since Brookins, we have discussed the “public concern”
standard in the context of prisoner speech on other occa-
sions. In Sasnett v. Litscher, 197 F.3d 290, 293 (7th Cir. 1999),
we held that a regulation that permitted prisoners to
wear rosaries but not cross necklaces discriminated
against Protestants and violated the First Amendment.
The prisoners also brought a separate free speech claim
which we rejected because, although wearing a cross is
“in a sense expressive,” to bring the claim under the
free speech clause would “empty the free-exercise clause
of a distinctive meaning.” Id. at 292. The prisoners’ desire
to wear crosses was not done to convert other inmates
or make a public statement and so the free speech
claim failed by analogy to the Pickering-Connick “public
concern” line of cases. Id. (citing Pickering v. Bd. of Ed. of
Twp. High Sch. Dist. 205, 391 U.S. 563 (1968); Connick v.
Myers, 461 U.S. 138 (1983)).
In McElroy v. Lopac, 403 F.3d 855 (7th Cir. 2005) (per
curiam), a prisoner who lost his job in the prison’s sewing
shop asked whether he would receive “lay-in pay” while
awaiting transfer to the optical glass shop. Annoyed
by the inquiry, prison officials allegedly filed false disci-
plinary charges against McElroy and refused to reassign
him to the glass shop. We rejected McElroy’s claim of
First Amendment retaliation, concluding that his
inquiries about lay-in pay “were a matter of ‘purely
individual economic importance’ and not of public con-
cern.” Id. at 858 (quoting Balton v. City of Milwaukee, 133
F.3d 1036, 1040 (7th Cir. 1998)).
No. 07-1551 9
Our most recent mention of Brookins’s public concern
standard was in Pearson v. Welborn, 471 F.3d 732 (7th Cir.
2006), in which a prison official, citing Brookins, argued
that complaints about the use of shackles in group
therapy and the denial of yard time were not protected
by the First Amendment. We rejected the official’s
reliance on Brookins because, even assuming that
Pearson’s speech was subject to a public concern test, his
complaints urging a change in prison policy met that
test. Id. at 740. Pearson did not, however, endorse
Brookins’s public concern requirement for prisoner
speech—the validity of that test was not an issue.
Bridges notes that the concept of a public concern test
for prisoner speech has caused considerable confusion in
the district courts of this circuit. See, e.g., Watkins v.
Kasper, 560 F. Supp. 2d 691, 702 (N.D. Ind. 2008) (“It is not
readily apparent how imposing the requirement that
prisoner speech be related to a matter of public concern
in order to state a First Amendment retaliation claim
serves to strike the appropriate balance between a pris-
oner’s speech interests and a prison’s penological inter-
ests. Nonetheless, there is Seventh Circuit case law sug-
gesting that the public concern requirement that
was developed in the public employee context is
applicable in the prison context as well.”). At Bridges’s
urging, we take up the matter now.
“[F]ederal courts must take cognizance of the valid
constitutional claims of prison inmates.” Turner v. Safley,
482 U.S. 78, 84 (1987). Like students who do not shed
their free speech rights at the schoolhouse gates, Tinker
10 No. 07-1551
v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506
(1969), neither do prison walls “form a barrier separating
prison inmates from the protections of the Constitution.”
Turner, 482 U.S. at 84. However, “[l]awful incarceration
brings about the necessary withdrawal or limitation of
many privileges and rights, a retraction justified by the
considerations underlying our penal system.” Pell v.
Procunier, 417 U.S. 817, 822 (1974) (quoting Price v. Johnston,
334 U.S. 266, 285 (1948)).
The Supreme Court has addressed the scope of prison-
ers’ First Amendment rights on several occasions. In Pell,
jou rn alis t s a nd p ris on in m a t e s c h a lle n ge d a
prison regulation preventing face-to-face interviews
between the media and individual prisoners. The Court
noted that “a prison inmate retains those First Amend-
ment rights that are not inconsistent with his status as a
prisoner or with the legitimate penological objectives
of the corrections system.” Id. at 822. Legitimate penologi-
cal objectives include crime deterrence, prisoner rehabil-
itation, and internal prison security. Id. at 822-23. If
prison officials have identified an institutional need that
a regulation helps to solve, that decision is “peculiarly
within the province and professional expertise of correc-
tions officials, and, in the absence of substantial evidence
in the record to indicate that the officials have exag-
gerated their response to these considerations, courts
should ordinarily defer to their expert judgment in such
matters.” Id. at 827. With respect to the regulation prohibit-
ing face-to-face interviews, “institutional considerations,
such as security and related administrative problems, as
well as the accepted and legitimate policy objectives of the
No. 07-1551 11
corrections system itself, require that some limitation be
placed on such visitations. So long as reasonable and
effective means of communication remain open and no
discrimination in terms of content is involved, . . . in
drawing such lines, ‘prison officials must be accorded
latitude.’ ” Id. at 826 (quoting Cruz v. Beto, 405 U.S. 319,
321 (1972)). Accordingly, the Court upheld the regula-
tion. Id. at 828.
In Turner, the Supreme Court considered regulations
relating to inmate marriages and correspondence
between inmates at different institutions. After a dis-
cussion of previous decisions on prisoners’ free speech
rights, the Court crystalized the test to be used: “when a
prison regulation impinges on inmates’ constitutional
rights, the regulation is valid if it is reasonably related
to legitimate penological interests.” 482 U.S. at 89. Several
factors are relevant in reaching a determination, such as
whether there is a connection between the regulation
and a valid and neutral government interest; whether
there are alternative means of exercising the constitu-
tional right; and the impact that accommodation of the
asserted right will have on guards, inmates, and the
allocation of prison resources. Id. at 89-90. The court
concluded that the restriction on inmate correspondence
with inmates in other facilities was reasonably related to
legitimate penological interests, but the marriage restric-
tion was not. Id. at 91, 97.
In Shaw v. Murphy, 532 U.S. 223, 228-29 (2001), the
Supreme Court rejected the notion that inmate-to-inmate
correspondence that contained legal advice enhanced
12 No. 07-1551
the protections otherwise available under Turner, a case
that “adopted a unitary, deferential standard for re-
viewing prisoners’ constitutional claims.” The Court
noted that “[t]o increase the constitutional protection
based upon the content of a communication first requires
an assessment of the value of that content. But the
Turner test, by its terms, simply does not accommodate
valuations of content.” Id. at 230.
Pell, Turner, and Shaw dealt with the constitutionality of
prison regulations that implicated prisoners’ First Amend-
ment rights. See also Thornburgh v. Abbott, 490 U.S. 401
(1989) (considering regulations on prisoners’ receipt of
publications); Jones v. N. C. Prisoners’ Labor Union, Inc., 433
U.S. 119 (1977) (considering regulations relating to prison-
ers’ unions). The cases did not explicitly mandate—nor
did they exclude—the Turner test for claims of uncon-
stitutional retaliation for the exercise of free speech. The
Supreme Court has, however, developed a standard for
assessing unconstitutional retaliation in another con-
text—the public employee setting.
In Pickering, a public school teacher was dismissed from
his position after writing a letter containing some errone-
ous statements, as well as criticism of the school board’s
past handling of revenue-raising proposals. The letter
was published in a local newspaper. The Court described
the significant public interest in citizens having “free and
unhindered debate on matters of public importance,”
Pickering, 391 U.S. at 573, which must be balanced with
the State’s interest as an employer in “promoting the
efficiency of the public services it performs through its
No. 07-1551 13
employees,” id. at 568. The case did not present a situation
in which the teacher’s speech interfered with his perfor-
mance of his duties as a teacher or the operation of the
school generally. Id. at 572-73. Accordingly, the Court
held that “absent proof of false statements knowingly or
recklessly made by him, a teacher’s exercise of his right
to speak on issues of public importance may not furnish
the basis for his dismissal from public employment.” Id.
at 574.
In Connick, an assistant district attorney distributed a
questionnaire to other staff members about various
office policies and attitudes in her department. Her
research into the opinions of her co-workers was
motivated by her objection to being transferred to work
in another criminal court, but she was terminated when
her supervisors learned of the questionnaire. The Court
added a nuance to the Pickering test, holding that “when
a public employee speaks not as a citizen upon matters
of public concern, but instead as an employee upon
matters only of personal interest, absent the most unusual
circumstances, a federal court is not the appropriate
forum in which to review the wisdom of a personnel
decision taken by a public agency allegedly in reaction
to the employee’s behavior.” Connick, 461 U.S. at 147.
Because the district attorney’s speech was not intended to
inform the public that her office was not fulfilling its
responsibilities or to disclose potential wrongdoing, her
speech was a matter of her own personal interest and
did not constitute protected speech. Id. at 148.
In Garcetti v. Ceballos, 547 U.S. 410 (2006), a deputy
district attorney complained that he had suffered retalia-
14 No. 07-1551
tory actions at his job after he spoke to his supervisors
and wrote memoranda about an affidavit used in ob-
taining a warrant in which he felt there were misrepresen-
tations; he also testified for the defense as to his observa-
tions about the affidavit. The Court further clarified the
Pickering-Connick standard by differentiating between
speech made pursuant to the employee’s official duties
and speech made as a citizen. Id. at 421. “That consider-
ation—the fact that [the employee] spoke as a prosecutor
fulfilling a responsibility to advise his supervisor
about how best to proceed with a pending case—distin-
guishes [this] case from those in which the First Amend-
ment provides protection against discipline.” Id.
With these cases in mind, we now turn to whether the
public concern test should be applied in the context of
prisoner speech. The public concern inquiry was created
to maintain the delicate balance between a citizen’s right
to speak (and the public interest in having thoughtful
debate) and the employer’s need to effectively provide
government services. The Supreme Court explained
the employer’s interest in Garcetti:
When a citizen enters government service, the
citizen by necessity must accept certain limita-
tions on his or her freedom. Government employ-
ers, like private employers, need a significant
degree of control over their employees’ words and
actions; without it, there would be little chance for
the efficient provision of public services. Public
employees, moreover, often occupy trusted posi-
tions in society. When they speak out, they can
No. 07-1551 15
express views that contravene governmental
policies or impair the proper performance of
governmental functions.
Id. at 418-19 (internal citations omitted). Prisons officials
also have a significant interest in operating effectively, but
the concerns are of a very different nature. The legitimate
penological objectives test was created to preserve some
free speech rights for prisoners in a restrictive and chal-
lenging environment where prison officials must be
focused on crime deterrence, prisoner rehabilitation, and
internal prison security. And, obviously, a citizen has the
choice to enter into public employment, while imprison-
ment is not voluntary. This is not to say that prisoners
have greater free speech rights than public employees. A
prisoner’s speech can be circumscribed in many ways
that a public employee’s speech cannot, and the two
tests for assessing protected speech account for those
differences. The public employee cases distinguish be-
tween speech made as a citizen and speech made as an
employee, but to draw a corollary in the prison context
would be to remove protection from nearly everything a
prisoner says. Shut off from the outside world, the pris-
oner’s speech would nearly always be speech made “as a
prisoner” rather than “as a citizen.” To further limit
protection to matters of public concern would seem to
restrict prisoners’ constitutional rights far more than
is “justified by the considerations underlying our penal
system.” Pell, 417 U.S. at 822 (quoting Price, 334 U.S.
at 285).
After engaging in a thoughtful discussion of the history
of prisoner and public employee free speech cases, the
16 No. 07-1551
Sixth Circuit expressed doubt as to the propriety of using
a public concern standard for prisoners’ speech, Thaddeus-X
v. Blatter, 175 F.3d 378, 393 (6th Cir. 1999) (en banc),
although the court ultimately left the question undecided,
see Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008)
(“[W]hether the public-concern test determines the pro-
tection to be afforded a prisoner’s speech is an open
question in the Sixth Circuit.”). The Sixth Circuit’s doubt
was based upon the many differences between prisoners
and employees: “Given the distinctive rights of the two
types of plaintiffs, the separate interests of the two types
of government entities, and the dissimilar nature of the
relationship between the plaintiff and the government
in these two settings, any honest attempt to perform the
balancing prescribed by the Supreme Court in Pickering
cannot unhesitatingly import reasoning from the public
employment setting into the prison setting. . . . [C]ontext
matters.” Thaddeus-X, 175 F.3d at 393.
In Eichenlaub v. Township of Indiana, 385 F.3d 274 (3d Cir.
2004), the Third Circuit considered a case in which plain-
tiffs, who were private citizens, brought a claim of re-
taliation against the government; the district court had
dismissed their claim because the speech was not a
matter of public concern. The Third Circuit drew an
analogy to prisoner speech:
[O]utside the employment context the First
Amendment forbids retaliation for speech even
about private matters. For example, we have
held that First Amendment claims may be based
on allegations that a prisoner’s complaint against
No. 07-1551 17
a guard caused retaliation. Realistically, these
kinds of complaints are often highly particularized
objections to alleged individual mistreatment.
We do not, however, impose a “public concern”
threshold.
Id. at 284 (citation omitted). See also Friedl v. City of New
York, 210 F.3d 79, 87 (2d Cir. 2000) (“[W]e reject the con-
tention . . . that where the [prisoner] alleges retaliation
for protected speech in the form of a petition to the gov-
ernment, he must establish that the speech contained in
his petition to the government was a matter of public
concern.” (internal quotation marks omitted)).
Other courts have simply applied the Turner test with-
out consideration of a public concern requirement.
For example, the Fifth Circuit applied the “legitimate
penological objectives” test without fanfare: “While we
deal here with [retaliation] rather than a [prison] regula-
tion, the same standard is applicable to determine if the
prison authorities’ response to [plaintiff’s] writing is
constitutionally permitted.” Jackson v. Cain, 864 F.2d 1235,
1248 (5th Cir. 1989). See also Cornell v. Woods, 69 F.3d 1383,
1388 (8th Cir. 1995) (“[A prisoner’s] right to respond to
a prison investigator’s inquiries is not inconsistent with
a person’s status as a prisoner or with the legitimate
penological objectives of the corrections system.”).
While there are different “rung[s in] the hierarchy of
First Amendment values,” Carey v. Brown, 447 U.S. 455, 467
(1980), we conclude that a prisoner’s speech can be pro-
tected even when it does not involve a matter of public
18 No. 07-1551
concern. 2 We will apply the Turner legitimate penological
interests test to determine whether Bridges has alleged
that he engaged in protected speech.
Bridges alleged that he engaged in protected speech in
the affidavit he filed in the lawsuit by Powe’s mother.
Providing an eyewitness account (or an aural account, as
in this case) of an incident where prison officials are
alleged to have mistreated an inmate who was gravely
ill (and later died) is not inconsistent with legitimate
penological interests. Prisons have an interest in keeping
the inmates as safe and secure as possible while impris-
oned, and truthful speech that describes possible abuses
can actually be quite consistent with that objective.
Cf. Cornell, 69 F.3d at 1388 (“[T]ruthfully answering
questions concerning a misconduct investigation against
a correctional officer is undoubtedly quite consistent
with legitimate penological objectives.” (internal quota-
tion marks omitted)). Bridges has therefore adequately
alleged, for purposes of surviving a motion to dismiss,
that he engaged in activity protected by the First Amend-
ment. Woodruff, 542 F.3d at 551 (quoting Massey, 457 F.3d
at 716). Whether his claim is meritorious is a question
that can be explored in discovery and, if necessary, at trial.3
2
Because this opinion disavows the public concern test used
in prior prisoner speech cases in this circuit, it has been circu-
lated among all judges of this court in regular active service
under Circuit Rule 40(e). No judge favored a rehearing en banc.
3
This case does not address the continuing validity of cases like
McElroy, where we concluded that a prisoner-employee’s
(continued...)
No. 07-1551 19
We briefly turn to the other two elements of a First
Amendment retaliation claim, which were not addressed
by the district court—whether Bridges experienced an
adverse action that would likely deter First Amendment
activity in the future, and if the First Amendment
activity was “at least a motivating factor” in the Defen-
dants’ decision to take the retaliatory action. Id. Bridges
alleged that he suffered retaliation through delays in his
3
(...continued)
complaints about compensation were not matters of “public
concern” protected by the First Amendment. 403 F.3d at 858.
To the extent that a distinction can be made between speech as
an inmate and speech as a prisoner-employee, the public
concern standard may still have some application to prisoners’
free speech claims. Although we noted above that Garcetti’s
analysis of the competing interests of the public employer and
the public employee is generally inapplicable to the prison
context, perhaps similar concerns are present when prison
officials offer inmates voluntary employment in the provision
of prison services. The official interest in the “efficient provi-
sion” of those services, coupled with the benefits to the
prisoner from taking the job, may justify a public concern
limitation on the prisoner’s speech made as an employee.
Garcetti, 547 U.S. at 418. On the other hand, the degree of control
exercised by officials over all aspects of a prisoner’s life may
make any distinction between speech as an inmate and speech
as a prisoner-employee unworkable. Cf. id. at 418-19 (comparing
the free citizen’s dual roles as a public employee and a private
citizen). We need not decide in this case whether the public
concern standard ought to apply to a prisoner-employee’s
free speech claim because, in providing an affidavit in the
Powe lawsuit, Bridges was not speaking as a prisoner-employee.
20 No. 07-1551
incoming and outgoing mail; harassment by a guard
kicking his cell door, turning his cell light off and on, and
opening his cell trap and slamming it shut in order to
startle him when he was sleeping; unjustified disciplinary
charges; and improper dismissal of his grievances. Even
though some of these allegations would likely not be
actionable in and of themselves, if the acts were taken
in retaliation for the exercise of a constitutionally pro-
tected right, then they are actionable under § 1983. See
Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir. 1987) (“[A]n
act in retaliation for the exercise of a constitutionally
protected right is actionable under Section 1983 even if the
act, when taken for different reasons, would have been
proper.”); see also Higgason v. Farley, 83 F.3d 807, 810 (7th
Cir. 1996) (per curiam) (retaliatory transfer of a prisoner);
Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996) (retalia-
tory delay in transferring prisoner); Cornell, 69 F.3d at 1389
(retaliatory discipline).
Bridges’s complaint does not specifically allege that the
retaliatory activities would “deter a person of ordinary
firmness” from exercising First Amendment activity in
the future. Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).
But construing his pro se complaint liberally, Obriecht,
517 F.3d at 492 n.2, and accepting all of his allegations as
true, one “possible inference[]” of the complaint, Tamayo,
526 F.3d at 1081, is that the alleged harassment by numer-
ous prison employees in a variety of ways over a period
of several months would deter a person of ordinary
firmness from exercising his First Amendment rights.
Again, whether Bridges’s allegations are in fact true or
whether the alleged harassment would actually deter a
No. 07-1551 21
person of ordinary firmness are not questions that we
address at the pleading stage.
Finally, Bridges alleges that the Defendants would not
have harassed him but for his participation in the Powe
lawsuit. That, too, is sufficient. Bridges has stated a
claim for free speech retaliation. Pl. Compl. ¶¶ 10-16, 25.
B. Bridges’s Access to the Courts and Petition for
Redress Claims
Bridges alleged three other claims in his complaint.
First, intertwined with his free speech claim, Bridges
claimed the Defendants retaliated against him for filing
an affidavit in the Powe lawsuit in violation of his con-
stitutional right to access the courts. Second, he claimed
that one Defendant retaliated against him by filing an
unjustified disciplinary charge after he complained
about her harassment of him—and another Defendant
modified the charge to be more serious—in violation of
his right to petition the government for redress of griev-
ances. Third, he claimed the Defendants improperly
denied and rejected his grievances, which violated his
right to petition the government for redress of grievances.
Though he specifically labeled paragraphs in his com-
plaint with these claims and addressed them in his reply
to Defendants’ motion to dismiss, the district court dis-
missed the complaint without independent discussion of
these claims.
As with the free speech claim, to prevail in an access to
the courts or petition for redress of grievances retaliation
claim, Bridges must ultimately show that (1) he engaged
22 No. 07-1551
in activity protected by the First Amendment; (2) he
suffered a deprivation that would likely deter First
Amendment activity in the future; and (3) the First Amend-
ment activity was “at least a motivating factor” in
the Defendants’ decision to take the retaliatory action.
Woodruff, 542 F.3d at 551 (quoting Massey, 457 F.3d at 716).
The First Amendment right to petition the govern-
ment for redress of grievances includes the right of
access to the courts. Cal. Motor Transp. Co. v. Trucking
Unlimited, 404 U.S. 508, 510 (1972); Grossbaum v.
Indianapolis-Marion County Bldg. Auth., 100 F.3d 1287, 1294
n.5 (7th Cir. 1996). “[P]ersons in prison, like other in-
dividuals, have the right to petition the Government for
redress of grievances which, of course, includes ‘access
of prisoners to the courts for the purpose of presenting
their complaints.’ ” Cruz, 405 U.S. at 321 (quoting Johnson
v. Avery, 393 U.S. 483, 485 (1969)); cf. Woodruff, 542 F.3d
at 561 (Posner, J., concurring) (emphasizing that the
right to petition includes a reasonable right of access to the
courts). While the right of access to the courts requires
prison officials to provide prisoners with the necessary
tools “to attack their sentences, directly or collaterally,”
and “to challenge the conditions of their confinement,”
Lewis v. Casey, 518 U.S. 343, 355 (1996), it is not an abstract,
freestanding right to legal assistance, id. at 351. A prisoner
asserting a denial of access claim must show an “actual
injury” in the form of interference with a “nonfrivolous
legal claim.” Id. at 353. “In other words, the right of access
to the courts is tied to and limited by a prisoner’s right
to ‘vindication for a separate and distinct right to seek
judicial relief for some wrong.’ ” Lehn v. Holmes, 364
No. 07-1551 23
F.3d 862, 865 (7th Cir. 2004) (quoting Christopher v. Harbury,
536 U.S. 403, 415 (2002)).
Bridges has no “underlying claim” that implicates his
own right of access to the courts. Harbury, 536 U.S. at 415.
The only underlying claim in this case is the Powe wrong-
ful death lawsuit, meaning that retaliation against
Bridges for providing an affidavit in that lawsuit could
only affect the access rights of Powe’s mother. But
Bridges cannot rely on another plaintiff’s injury in
support of his own denial of access claim. See Casey, 518
U.S. at 357-58 (concluding that the loss of nonfrivolous
legal claims by two individual prisoners did not establish
the requisite injury for an entire class of prisoners to
seek systemwide improvements in the prison’s legal
assistance program). Since Bridges has no “right to
judicial relief” distinct from Powe’s claim, Harbury, 536
U.S. at 415, his affidavit in the Powe litigation was not a
constitutionally protected exercise of his right to access
the courts.
We have in the past recognized situations where one
prisoner may have a First Amendment retaliation claim
based on the denial of another prisoner’s right of access
to the courts. In Higgason, a prisoner argued that he was
transferred to another prison facility after he filed his own
lawsuits and assisted other inmates with filing lawsuits.
We held that “[i]f a prisoner is transferred for exercising
his own right of access to the courts, or for assisting
others in exercising their right of access to the courts, he
has a claim under § 1983.” Higgason, 83 F.3d at 810. Impor-
tantly, however, Higgason was a “jailhouse lawyer,” id. at
24 No. 07-1551
811 n.3, and we have acknowledged that these advocates
have standing to assert their fellow inmates’ denial of
access claims, see Buise v. Hudkins, 584 F.2d 223, 227 (7th
Cir. 1978). Without that standing, prison officials could
simply transfer troublesome jailhouse lawyers and leave
the remaining inmates “without an alternate means of
access to the courts.” Id. at 228; see also Johnson v. Avery, 393
U.S. 483, 487 (1969) (invalidating a prison regulation
prohibiting habeas petitioners from obtaining the assis-
tance of a jailhouse lawyer).
Unlike the services of a jailhouse lawyer, we do not
think that Bridges’s assistance as an affiant-witness was
“necessary to vindicate [Powe’s] right of access to the
courts.” Thaddeus-X, 175 F.3d at 395. That is especially true
since Powe’s mother has already obtained and used
Bridges’s affidavit in her lawsuit, suggesting that she
suffered no injury through the alleged retaliation against
Bridges. See Massey v. Helman, 196 F.3d 727, 740 (7th Cir.
1999) (commenting that a prison physician who gave a
deposition in a prisoner lawsuit could not show “that his
termination interfered with other prisoners’ access to the
courts by confining their ability to gather evidence in
support of their cases”). Accordingly, Bridges’s participa-
tion in the Powe litigation was not sufficiently con-
nected to Powe’s rights to allow Bridges to assert a denial
of access claim. See id. at 739-40 (holding that the prison
physician lacked standing to raise the prisoners’ rights of
access to the courts). The district court properly
dismissed Bridges’s claim alleging retaliation for exer-
cising his right to access the courts.
No. 07-1551 25
Moving to Bridges’s next claim, Bridges alleges that
one Defendant retaliated against him for exercising his
constitutional right to seek redress for the Defendant’s
harassment. Bridges contends that he communicated a
grievance to the government when he threatened the
Defendant that he was going to file a grievance against
her because it was inappropriate for her to kick his cell
door, turn his lights on and off, and slam his cell trap
while he was sleeping. Bridges cites Pearson, in which
we “decline[d] to hold that legitimate complaints lose
their protected status simply because they are spoken.
Nothing in the First Amendment itself suggests that the
right to petition for redress of grievances only attaches
when the petitioning takes a specific form.” Pearson, 471
F.3d at 741. But it seems implausible that a threat to file
a grievance would itself constitute a First Amendment-
protected grievance. Even if the threat were deemed
protected activity, Bridges’s allegations do not lead to
an inference that the retaliation would deter a person of
ordinary firmness from exercising First Amendment
activity in the future. Bridges alleges that the Defendant
filed an unjustified disciplinary charge, which another
Defendant upgraded to a “major offense.” The charge
was later dismissed. A single retaliatory disciplinary
charge that is later dismissed is insufficient to serve as
the basis of a § 1983 action. Cf. Bart, 677 F.2d at 625 (“A
tort to be actionable requires injury. It would trivialize
the First Amendment to hold that harassment
for exercising the right of free speech was always action-
able no matter how unlikely to deter a person of ordinary
firmness from that exercise . . . .”). This claim was properly
dismissed. Pl. Compl. ¶¶ 17-20.
26 No. 07-1551
Bridges’s final claim is that the Defendants improperly
dismissed and rejected his attempts to file administrative
grievances. This is his only claim that does not arise
under a retaliation theory; he complains of a direct viola-
tion of his right to petition the government for redress
of grievances. He alleges that the Defendants used techni-
calities to repeatedly reject his grievances. For example,
they would claim that he had stated too many issues in
one grievance when Bridges was merely attempting to
explain the context of the grievance; then when he filed
another grievance, they would claim that he had not
given them enough background information. The rejected
grievances were “directly related to the claims stated in
[Bridges’s] complaint.” Pl. Compl. ¶ 21. He did not allege
that he was prevented from petitioning for redress of
any other grievances. Section 1983 is a tort statute, so
Bridges must have suffered a harm to have a cognizable
claim. Doe v. Welborn, 110 F.3d 520, 523 (7th Cir. 1997).
Because he is currently exercising his right to petition the
government for redress of grievances through this
lawsuit, he has not been harmed. See Antonelli v. Sheahan,
81 F.3d 1422, 1430 (7th Cir. 1996) (“[Plaintiff’s] invocation
of the judicial process indicates that the prison has not
infringed his First Amendment right to petition the
government for a redress of grievances.”). This claim was
also properly dismissed. Pl. Compl. ¶¶ 21-24.4
4
Bridges’s allegations may later become relevant, however,
because the Prison Litigation Reform Act requires that he
exhaust his available administrative remedies before he can
(continued...)
No. 07-1551 27
III. Conclusion
Because Bridges stated a claim for free speech retalia-
tion due to his filing of an affidavit in the Powe litigation,
Pl. Compl. ¶¶ 10-16, 25, we R EVERSE the decision of the
district court in part. With respect to Bridges’s claims of
retaliation for access to the courts, retaliation for threaten-
ing to file a grievance, Pl. Compl. ¶¶ 17-20, and denial of
the grievance process, Pl. Compl. ¶¶ 21-24, 26, we
A FFIRM the district court’s dismissal.
4
(...continued)
bring a § 1983 action. 42 U.S.C. § 1997e(a). If Bridges sub-
mitted grievances that did not comply with the prison’s proce-
dural requirements, then the prison was entitled to reject those
grievances. And to file a claim, his administrative remedies
must have been properly exhausted. Woodford v. Ngo, 548 U.S. 81,
95 (2006) (“The benefits of exhaustion can be realized only if
the prison grievance system is given a fair opportunity to
consider the grievance. The prison grievance system will not
have such an opportunity unless the grievant complies with
the system’s critical procedural rules.”). Bridges alleges,
though, that his grievances met the procedural requirements
but were nevertheless denied. If the district court later deter-
mines that Bridges has not exhausted his administrative
remedies, the court may need to determine whether that failure
was attributable to the alleged denial of the grievance process.
3-4-09