MARK BURNS, Plaintiff-Appellant, v. DANIEL F. MARTUSCELLO, JR., Superintendent, Coxsackie Correctional Facility, CAPTAIN SHANLEY, Coxsackie Correctional Facility, SERGEANT NOEH, Coxsackie Correctional Facility, SCHWEBLER, Guidance Counselor, Coxsackie Correctional Facility, BRIAN FISCHER, Commissioner of New York State Department of Corrections, TERESA KNAPP-DAVID, Director of Movement and Control, New York State DOCCS, MCGLYNN, Guidance Counselor, Coxsackie Correctional Facility
Docket No. 15-1631
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
May 9, 2018
August Term, 2017 (Argued: October 11, 2017)
Appeal from United States District Court for the Northern District of New York (Lawrence E. Kahn, J.; Christian F. Hummel, M.J.) granting summary judgment to defendants on a First Amendment retaliation claim, and Eighth and Fourteenth Amendment claims related to plaintiff Mark Burns‘s placement in restricted custody after he refused (i) to serve as a prison informant, or (ii) to provide false information regarding an incident within the facility. With regard to the First Amendment retaliation claim, we hold that the First Amendment protects a prisoner‘s right not to serve as a prison informant or provide false information to prison officials. Because we have not previously recognized this speech and speech-related activity as protected by the First Amendment, we nonetheless affirm the judgment of the district court on qualified immunity grounds.
Affirmed.
ROBERT M. GOLDFARB, Assistant Solicitor General (Barbara D. Underwood, Andrew D. Bing, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, N.Y., for Defendants-Appellees Daniel F. Martuscello et al.
POOLER, Circuit Judge:
Plaintiff-Appellant Mark Burns appeals from a February 10, 2015 decision and order of the United States District Court for the Northern District of New York (Kahn, J.), adopting the report-recommendation of the magistrate judge (Hummel, M.J.) in its entirety, and granting summary judgment to defendants. Burns brought several
BACKGROUND
I. Facts
Burns is an inmate in the custody of the New York State Department of Corrections and Community Supervision, and, at all times relevant to his claims, was an inmate at Coxsackie Correctional Facility. As we must at summary judgment, we credit Burns‘s account of events, and draw all reasonable
Burns began working as a stock clerk in the Coxsackie commissary beginning in April of 2010. According to Burns, on May 19, 2010, he was in the commissary removing stock from shelves, when a can fell from a high shelf and struck him in the face and neck. Burns suffered minor injuries—namely, redness on his face, which subsequently became a small bruise, and a scratch on his neck. Burns reported the injury to commissary staff and signed a medical waiver. The next day, May 20, an inmate injury report was filed, indicating that Burns had been injured by a falling can in the commissary.
Also on May 20, 2010, Burns asserts that he was again working in the commissary when he was approached by defendants Sergeant Noeh and Captain Shanley. Noeh and Shanley told Burns that his wife had called and complained that Burns had been “cut” by a fellow inmate. Report-Recommendation and Order at 4, Burns v. Martuscello, 13-cv-486, ECF No. 46 (N.D.N.Y. Dec. 18, 2014). In Burns‘s telling of the events, he denied having any altercation with a fellow inmate. Burns also pointed out that he had no cut, and that his apparent, minor injuries were the result of the can falling on him the day before. Burns further
According to Burns, Shanley then proposed a deal. He told Burns that he intended to recommend Burns for placement in IPC, citing the call from Burns‘s wife as an indication of a threat to Burns‘s safety. But, Shanley offered to let Burns avoid this restricted status if Burns agreed to be the guards’ snitch. Shanley and Noeh did not say that that they had a particular reason to believe Burns would have information, but instead said that Burns knew “what goes on.” Joint App‘x at 48. If Burns didn‘t agree to this arrangement, the guards threatened that Burns would be relegated to IPC indefinitely. Burns refused to go along with the guards’ request. Shanley then instructed Noeh to write an IPC recommendation. In the subsequent IPC recommendation, Noeh noted that Burns‘s wife called and reported he was cut, that Burns had a bruised left eye but no visible cut, and that Burns reported that a can fell on him, causing the bruise.
According to Burns, at some point near the initial hearing—about a week after the can fell—Shanley and Martuscello approached Burns and repeated the demand that Burns be “their snitch.” Shanley and Martuscello also said that they “had a new theory that [Burns] was assaulted by staff and that when [Burns] agreed to snitch [he] would be let out but until then [he] could rot in IPC.” Joint App‘x at 22.
The hearing resumed on June 7, 2010. Officer Jablanski testified that he recalled that a can fell from the top shelf and hit Burns in the face, and that Burns reported the event to him. Jablanski also noted that he logged the injury. Noeh then testified that Burns‘s wife called and reported that Burns had been “cut.” Supp. App‘x at 69. Noeh further testified that Burns “had no cuts on him but he had a black eye, which he claimed he got from a can falling.” Supp. App‘x at 69. When asked if he knew whether there was “a threat to Mr. Burns[‘] safety within the general inmate population” at Coxsackie, Noeh replied, “[i]f I go by the
That same day, June 7, 2010, the hearing officer approved Burns‘s placement in IPC. Burns was then transferred to IPC, where he remained until January 2011. This status mandated that Burns remain in his cell for 23 hours a day, and dramatically curtailed his access to the library, religious services, and other prison resources.
Burns further recounts that while he was in IPC, Shanley and Martuscello repeatedly demanded that Burns serve as their snitch in order to be released from restricted custody. According to Burns, at one point, Martuscello stopped by Burns‘s cell, and, when Burns protested to be released from IPC, Martuscello replied that “only [Martuscello] had the power to change [the] situation,” and that “the only way that would happen was agree to snitch other wise [sic] [Burns] could rot here,” in IPC. Joint App‘x at 23. Burns also reports that the officers continued to pressure him to change his account of how he received his injuries. Burns explained time and again that his injuries were the product of a minor workplace mishap, but the guards continued to ask him for a version of
During his time in IPC, Burns filed numerous grievances related to his IPC status. After over six months in IPC, Burns was ultimately released from the restricted status upon his transfer to a different correctional facility in early 2011.
II. Procedural History
On April 30, 2013, Burns filed suit pro se, alleging violations of his constitutional rights. The district court construed Burns‘s complaint to raise violations of the First, Eighth, and Fourteenth Amendments. Following discovery, defendants moved for summary judgment, asserting that Burns failed to exhaust administrative remedies, and that the record evidence did not support his Eighth and Fourteenth Amendment claims.
The magistrate judge found that Burns had established a genuine issue of material fact regarding exhaustion, but ruled that Burns had failed to establish claims to relief under the Eighth or Fourteenth Amendments. With respect to the First Amendment retaliation claim, the magistrate judge reasoned Burns was not
Burns appealed. We appointed counsel for the limited purpose of briefing whether there is a constitutional right to refuse to become a prison informant, and dismissed the remainder of Burns‘s appeal.
DISCUSSION
“A grant of summary judgment is reviewed de novo, construing the facts in the light most favorable to the non-moving party and drawing all reasonable inferences in that party‘s favor.” Kazolias v. IBEW LU 363, 806 F.3d 45, 49 (2d Cir. 2015). “But because prisoner retaliation claims are easily fabricated, and accordingly pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration, we are careful to require non-conclusory allegations.” Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)) (internal quotation marks omitted).
This appeal centers on the question of whether Burns was engaged in protected speech or conduct when he refused to serve as a snitch. Neither we nor the Supreme Court have squarely addressed this question previously. See Willey v. Kirkpatrick, 801 F.3d 51, 66 (2d Cir. 2015) (declining to rule on whether there is a right not to serve as a prison informant); Allah v. Juchenwioz, 176 F. App‘x 187, 189 (2d Cir. 2006) (summary order) (similarly declining to rule). We now hold that the First Amendment protects a prisoner‘s right not to serve as an informant.
Burns‘s refusal to alter his account of how he received his minor injuries or otherwise fabricate information also raises the question of whether an inmate retains the right to refuse to provide false information to government officials,
I. The Right Not to Speak
As a general matter, the First Amendment protects the “right to decide what to say and what not to say.” Jackler, 658 F.3d at 241. “[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). To force a person to speak,3 and compel participation, is a severe intrusion on the liberty and intellectual privacy of the individual. Just as compelled silence will extinguish the individual‘s right of expression, compelled speech will vitiate the individual‘s decision either to express a perspective by means of silence, or to remain humbly absent from the arena. In Riley v. National Federation of the Blind of North Carolina, Inc., the Supreme Court explained,
There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees “freedom of speech,” a term necessarily comprising the decision of both what to say and what not to say.
487 U.S. 781, 796–97 (1988) (emphasis in original).
The right not to speak derives largely from the notion, central to our system of government, that the individual‘s right to “freedom of mind” must be jealously guarded. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). Preserving the “freedom to think as you will and to speak as you think” is both an inherent good, and an abiding goal of our democracy. Whitney v. California, 274 U.S. 357, 375 (1927), overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969) (Brandeis, J., concurring). In service of this core component of liberty, our jurisprudence recognizes a “sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” Barnette, 319 U.S. at 642.
In our view, compelled speech presents a unique affront to personal dignity. The decision to withhold speech depends on views and calculations known only to the individual. And since the individual seeks to refrain from speaking, those motivations are all the more obscure, and privately held. See
In Barnette, the Supreme Court held that the state could not require students to salute the flag. Id. at 642. The Court found that the requirement “requires affirmation of a belief and an attitude of mind,” and reflected an attempt by officials to “coerce acceptance of [a] patriotic creed.” Id. at 633–34. Such an intrusion was a significant burden on the “right of self-determination in matters that touch individual opinion and personal attitude.” Id. at 631. As a result, the Court held that the compelled salute impermissibly “invade[d] the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” Id. at 642.
Barnette centered on speech of an overtly political nature, and political speech has long stood at the “core” of First Amendment rights. McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 346–47 (1995). However, the protections of the First Amendment are hardly confined to political speech—and the Supreme Court repeatedly “has rejected as ‘startling and dangerous’ a ‘free-floating test for First Amendment coverage based on an ad hoc balancing of relative social costs and benefits.‘” United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality opinion) (quoting United States v. Stevens, 559 U.S. 460, 470 (2010)) (internal punctuation omitted). Indeed, the motto “Live Free or Die” at issue in Wooley cannot be fairly categorized as traditional political speech. Rather, Wooley expanded on Barnette‘s notion of First Amendment protection for individual
We have also recognized that the First Amendment right not to speak protects the right to refuse to make false statements to the government. See Jackler, 658 F.3d at 241. In Jackler, a probation officer filed a report against a fellow officer, asserting that the officer had used excessive force on an arrestee. Id. at 230. Other members of the police force then attempted to coerce the plaintiff into withdrawing his report. Id. at 231. When he did not, he was terminated. Id. at 232.
We found that a First Amendment retaliation claim could lie based on the right not to speak. Drawing on Wooley and Barnette, as well as a citizen‘s right to give truthful evidence, we reasoned that the officer had a First Amendment right to refuse to make false statements to the government: “a citizen has a First Amendment right to decide what to say and what not to say, and, accordingly, the right to reject governmental efforts to require him to make statements he
II. Limited First Amendment Interests of Prisoners
While an individual is not stripped of all constitutional rights upon incarceration, an inmate‘s constitutional liberties are necessarily limited. “A prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Shakur v. Selsky, 391 F.3d 106, 113 (2d Cir. 2004) (quoting Giano v. Senkowski, 54 F.3d 1050, 1053 (2d Cir. 1995)) (internal punctuation omitted); see also Pell v. Procunier, 417 U.S. 817, 822 (1974). Accordingly, while “[i]nmates clearly retain protections afforded by the First Amendment,” O‘Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987), “the Constitution sometimes permits greater restriction of such rights in a prison than it would allow elsewhere,” Beard v. Banks, 548 U.S. 521, 528 (2006) (plurality opinion). At bottom, “[t]he governing standard is one of reasonableness.” Shakur, 391 F.3d at 113 (quoting
The majority of the jurisprudence evaluating the scope of a prisoner‘s First Amendment rights arises in the context of a challenge to a generally applicable prison policy or regulation. See, e.g., Pilgrim v. Luther, 571 F.3d 201, 204–05 (2d Cir. 2009) (challenge to prison regulation prohibiting organizations of strikes or work stoppages); Shaw v. Murphy, 532 U.S. 223, 225 (2001) (challenge to policies governing inmate communication with one another regarding legal claims). In evaluating such a policy or regulation, courts employ the framework outlined by the Supreme Court in Turner v. Safley, 482 U.S. 78, 89–91 (1987). The Turner inquiry requires us to examine several factors: (1) whether the policy or regulation is “reasonably related to legitimate penological interests;” (2) whether “there are alternative means of exercising the right that remain open;” (3) “the impact that accommodation of the asserted constitutional right will have on guards and inmates;” and (4) whether “ready alternatives” in prison policy that would accommodate the right exist, indicating that the policy is “an exaggerated response to prison concerns.” Id. (internal citations and punctuation omitted).
Specifically, the first Turner factor is undoubtedly relevant to a single-incident case, and we take care to emphasize the heightened role of security interests in the prison context. “[M]aintaining prison security and protecting
Further, the concern that prison officials may obviously be engaging in an “exaggerated response” is also relevant to a single incident case. Turner, 482 U.S. at 87. Our review of actions taken by prison officials is “deferential,” Ford v. McGinnis, 352 F.3d 582, 595 (2d Cir. 2003), but, just as a policy may clearly place too great a burden on inmates’ rights, so too may a single incident plainly constitute an outsize reaction to prison administration concerns.
In Turner itself, the Supreme Court ruled that a Missouri rule prohibiting communications between inmates at different institutions, subject to certain exceptions, did not violate the First Amendment. 482 U.S. at 81–82. The Court did not question that inmates held a First Amendment interest in the speech, but focused on the policy‘s relationship to curtailing coordination among inmates for violent acts and gang related activity. Id. at 91. The Court emphasized the
Following Turner, we have many times encountered challenges to prisoner mail policies. We have repeatedly held, in line with the Supreme Court‘s reasoning in Turner, that a prisoner retains a First Amendment interest in their communications. As we have noted, “a prisoner‘s right to the free flow of incoming and outgoing mail is protected by the
On a handful of occasions, we have considered
In Meriwether v. Coughlin, we upheld a jury verdict finding
III. The Right Not to Snitch
Applying these principles, we find that Burns held a strong
Of course, the right not to snitch implicates speech that is not a simple expression of opinion. Crediting Burns‘s version of events and drawing all reasonable inferences in his favor, as we must on appeal from summary judgment, Burns‘s case presents the questions of whether an inmate may, consistent with the
A. Jackler and the Right to Refuse to Provide False Information
To dispose of the simpler question first—it is eminently clear to us that the
Indeed, Burns‘s experience with his workplace injury neatly parallels the allegations in Jackler. In both instances, an initial report was made, and officials pressured the plaintiffs to change their accounts of the events in question. Though in JacklerFirst Amendment protects an inmate‘s refusal to provide false information. Accordingly, by refusing to invent false information, Burns was engaged in
B. The Right Not Serve as a Prison Informant on an Ongoing Basis
Further, while the speech at issue is not overtly political—in the sense that it does not involve, for example, campaigning for a candidate—neither is it purely personal. The guards sought continued information regarding the general illicit goings on in the prison—not information about Burns‘s personal relationships. And the governance of our criminal justice system, and the methods that may be undertaken in the maintenance of that system, are plainly matters of broad public concern. See Johnson v. California, 543 U.S. 499, 511 (2005) (observing that “society as a whole suffers” when prison officials’ actions run afoul of generally applicable constitutional principles).
Here, by refusing to serve as a snitch, Burns sought to exercise a right akin to the right, enjoyed by members of the public at large, to decline to participate in police questioning. In both cases, a government officer seeks information from an individual who is not under suspicion. In the case of the unconfined individual, she may walk away. But in the case of the prisoner, she cannot walk away, as she is physically incarcerated within the institution. Thus her only recourse is in
We also must emphasize the extreme risk that attends the act of snitching in the prison context. “When evaluating compelled speech, we consider the context in which the speech is made.” Evergreen Ass‘n, Inc. v. City of New York, 740 F.3d 233, 249 (2d Cir. 2014) (citing Riley, 487 U.S. at 796-97). Here, the prison setting weighs heavily on our analysis. It is a sobering and deplorable fact that violence occurs with regularity in far too many of our nation‘s correctional institutions. It is also well understood that inmates known to be snitches are widely reviled within the correctional system. In light of these facts, a number of courts have found an
For these same reasons, the degree of the intrusion on the inmate‘s constitutional interests is severe. In Wooley, the Court compared the flag salute at issue in Barnette to the license plate motto, and observed,
Compelling the affirmative act of a flag salute involved a more serious infringement upon personal liberties than the passive act of carrying the state motto on a license plate, but the difference is essentially one of degree.
Wooley, 430 U.S. at 715. The act of providing information about general criminal goings on of a prison is appreciably more active than the salute in Barnette: the guards sought to have Burns affirmatively report information about the wrongdoing of others, on potentially an ongoing basis, contrary to his wishes and at great physical peril. Put another way, the act of disclosing inculpatory information about other inmates requires a good deal more of the individual than a salute. More than a gesture is at stake.
Concurrently, we think it significant that the prison setting amplifies the degree of the incursion beyond the moment of reporting inculpatory
We also think it clear that forcing an inmate to serve as an informant on an ongoing basis is not reasonably related to a legitimate penological purpose—namely, safety. It is of course possible, as a general matter, that information obtained compulsorily from prisoners may provide officials with some advantage in maintaining order. But not all inmates will be able to obtain or provide information that in fact would be useful to preserve safety within the institution. And, indeed, forcing inmates to serve continuously as snitches may well prompt further violence, as others may seek retribution for perceived betrayals. Coercing inmates to serve as informants is, at best, an “exaggerated
Thus it is clear to us that the actions of the guards here were an unreasonable incursion on Burns‘s
In support of their assertion that the
First, this long-observed principle does not entitle the government to all evidence under all circumstances, as defendants suggest. The
Burns‘s case itself provides a dramatic example of the difference between a subpoenaed witness and a potential prison informant. Burns was put on a highly restrictive status for over six months when he refused vague and repeated demands for information. According to Burns, the guards simply wanted someone to act as their snitch—indicating that the potential subjects and scope of the guards’ interest were near limitless within the facility. This is hardly akin to a witness being called to recount specific facts relevant to an investigation or trial proceeding.
Accordingly, the longstanding evidentiary principle that “the public has the right to every man‘s evidence,” Nixon, 418 U.S. at 709, is no bar to finding
Again, the case before us is illustrative. Construing the evidence in Burns‘s favor, there is no indication that Burns himself was engaged in wrongful conduct. Burns was given a choice between snitching or incurring an otherwise underserved punishment. The distinction is of appreciable significance. It means that the government may withdraw a benefit—by, for example, refusing to lessen
Accordingly, for these reasons, we conclude that the refusal to provide false information and to serve as a snitch on an ongoing basis are protected by the
IV. Retaliation
Having concluded that Burns‘s speech was protected by the
Burns was put in IPC for over six months, significantly impairing his ability to move within the facility, socialize, and engage with prison programming. And Burns gave detailed testimony about the threats he received from defendants, to the effect that he must serve as a snitch and change the explanation of how he received his injuries, or else remain in IPC. Portions of Burns‘s testimony also are corroborated by documentary evidence and the testimony of prison officials. For example, the commissary officer testified that
We have previously held that a retaliation claim may lie where an inmate suffers the adverse action of “the filing of false misbehavior reports ... [and the] sentence of three weeks in keeplock—[because] that would deter a prisoner of ordinary firmness from vindicating his or her constitutional rights through the grievance process and the courts.” Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004). Here, Burns has provided evidence that he was subjected to a pretextual IPC hearing, and placed on this restricted status for over six months. Such an injury more than suffices to show an adverse action.
Burns has also presented sufficient evidence of causation. His IPC status hearing centered entirely on the questions related to injuries Burns suffered when struck by the can. Burns also testified that defendants told him on more than one occasion that he was referred to the IPC and left there because he declined to serve as a snitch. Such testimony raises a question of material fact for the jury. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (finding evidence of causation sufficient to defeat summary judgment based on “alleged admission of the existence of a retaliatory scheme” by guard).
V. Qualified Immunity
Qualified immunity protects government officials from liability for civil damages unless a plaintiff demonstrates “(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” McGowan v. United States, 825 F.3d 118, 124 (2d Cir. 2016) (quoting Wood v. Moss, 134 S.Ct. 2056, 2066-67 (2014)) (internal quotation marks omitted). “Although we generally look to Supreme Court and Second Circuit precedent existing at the time of the alleged violation to determine whether the conduct violated a clearly established right, the absence of a decision by this Court or the Supreme Court directly addressing the right at issue will not preclude a finding that the law was clearly established so long as preexisting law clearly foreshadows a particular ruling on the issue.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quoting Okin v. Vill. of Cornwall-on-Hudson Police Dep‘t, 577 F.3d 415, 433 (2d Cir. 2009); Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000)) (internal punctuation omitted).
We hold that the