Antoine, Nathan v. Uchtman, Alan

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 16, 2008*
Decided April 29, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD , Circuit Judge
ANN C LAIRE WILLIAMS, Circuit Judge
No. 07-2691
Appeal from the United
NATHAN ANTOINE, States District Court for the
Plaintiff-Appellant, Southern District of Illinois.
v.
No. 06-207-JPG
ALAN M. UCHTMAN, et al., J. Phil Gilbert, Judge.
Defendants-Appellees.
Order
Nathan Antoine, a prisoner of Illinois, contends in this action under 42 U.S.C. §1983that guards violated his constitutional rights by pressing disciplinary charges and mak-
ing statements that he interprets as retaliation for filing grievances. The district court
dismissed the complaint at the screening stage under 28 U.S.C. §1915A.
We start with the discipline. Antoine arranged for another prisoner to create what
Antoine styles “art work,” in exchange for some cigarettes and cigars. Antoine gave the
* Thedefendants were not served with process in the district court and have elected not to participate in
the appeal. After examining appellant’s brief and the record, we have concluded that oral argument is un-
necessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 07-2691 Page 2
smoking materials to Swafford, a third inmate, in an effort to prevent guards from find-
ing them in his possession. Antoine believed, correctly as it turned out, that the guards
suspected him of engaging in forbidden commerce. When guards searched Swafford
and found the tobacco products, Antoine admitted that he was the real owner. The
guards charged him with “trading or trafficking”. A prison disciplinary panel found that
Antoine had violated prison rules—but did not say which. He was placed in disciplinary
segregation and deprived of commissary privileges for a month; he also lost his job in
the prison cafeteria. The disciplinary finding was set aside on an internal appeal because
of the board’s failure to specify which rule Antoine had transgressed.
Antoine contends that these proceedings violated the due process clause of the four-
teenth amendment, but that argument is unavailing because the penalties—a month’s
segregation and loss of commissary privileges, and loss of prison employment—affect
neither “liberty” nor “property” as Sandin v. Conner, 515 U.S. 472 (1995), defined those
terms in the context of prison conditions. See also, e.g., Wallace v. Robinson, 940 F.2d 243(7th Cir. 1991) (en banc) (loss of prison employment does not affect liberty or property
interests). The due process clause applies only to deprivations of life, liberty, and prop-
erty; because Antoine lost none of these things, he was not entitled to any particular
process or quantum of evidence. Nor does it matter (given Antoine’s admission that he
was using the tobacco products to trade with another prisoner) that a guard may have
filed the “trading or trafficking” charge because he had it in for Antoine.
Antoine’s other arguments concern statements that, he maintains, several guards
made to him or in his presence. Some of the statements that Antoine imputes to the
guards are racist; others are threatening. He calls these, like the filing of the trading-or-
trafficking charge, “retaliatory.” It is not clear to us what provision of the Constitution
Antoine believes has been violated. It can’t be the due process clause—not only because
the penalty the board meted out did not affect liberty or property, but also because the
due process clause does not regulate the content of public employees’ speech, even if
that speech is defamatory. See Paul v. Davis, 424 U.S. 693 (1976).
Another possibility is that the guards’ statements might impinge on Antoine’s right
to speak, and petition the government for redress of grievances, by filing complaints
through the prison’s grievance machinery. Because the government has its own right of
speech, there is no rule that public employees cannot inform private actors about their
dissatisfaction with statements that the private actors have made. The President is free
to disparage the views stated in a newspaper’s editorial, and it would not become a vio-
lation of the Constitution if the President swore in the course of doing so. The most one
could say is that public officials may not take adverse actions that would lead reason-
able people to maintain silence rather than speak out. Cf. Burlington Northern & Santa Fe
Ry. v. White, 126 S. Ct. 2405 (2006). (This is “the most” one can say because White deals
with the rights of private employees under a statute that contains an explicit rule
against retaliation; the speech rights of prisoners are more limited.)
No. 07-2691 Page 3
Antoine does not contend that the guards took any concrete action that dissuaded
him from continuing to file grievances; indeed, his complaint and brief reveal that every
time a guard made a statement that he deemed racist or threatening, he filed a fresh
grievance against that guard. He has not been silenced, and the Constitution does not
compel guards to address prisoners in a civil tone using polite language. Prisons may
think it well to control guards’ manner of speech, but that is for statutes and regulations
(or perhaps the common law) rather than constitutional right.
AFFIRMED