Another odd case. Plaintiffs are a father (who is a guard) and his son (who is a prisoner). Father let slip to son that a prison-wide shakedown was coming. Father is fired. Both father and son sue. Father alleges violation of First Amendment and due process violation; son alleges First Amendment retaliation. District Court dismissed son’s claim at screening; entered SJ against the father. The son’s case is simple: he didn’t allege anything other than that his father’s speech was protected. Since he had no right to sue on behalf of his father, he had no claim. Of more interest is the court’s analysis of the father’s claims.

Two points of interest:

First Amendment:

Matter of Public Concern test: Statements by public employees are protected by the First Amendment only if they relate to matters of public concern. Statements about (for example) working conditions are only of interest to employees and thus are not protected by the First Amendment. While the discussion in this case is about the father, the same “matter of public concern” test has been applied to speech by prisoners (e.g., grievances about conditions are covered; grievances about lost property are not). See generally, Sasnett v. Litscher, 197 F.3d 290, 292 (7th Cir.1999) which imputed to prisoner cases the requirement of public-employee line of cases that protected speech must be about a “public concern”). Here, the 7th Circuit held that passing along information about a shake-down was not a matter of public concern, and it did not matter that much of the rest of the conversation did involve matters of public concern (e.g., the lack of minority representation among guards). No new ground is broken here.

Due Process:

The father also alleged that he was denied both pre-termination due process and post-termination due process. As to pre-termination, the court held that all that was required is that the fired employee be given notice of the intended firing and a chance to tell his side of the story. Plaintiff was interviewed pre-termination, and that was all that was required.

As to post-termination, two points: first, the father tried to file an appeal but did so improperly and thus his appeal was never heard. The 7th Cir. Ruled that due process only requires that procedures be available; whether plaintiff [ropery invoked those procedures is irrelevant. Plaintiff also alleged that the decision-maker was biased throughout the process. The 7th Cir. stated that a biased decision maker cannot provide due process (Of course, a biased adjudicator cannot provide constitutionally adequate process. See Hamdi v. Rumsfeld, 542 U.S. 507, 537–38 (2004)”). But then held that plaintiff had produced no evidence of bias in this case.

In many prison cases, the adjudicator (e.g., the adjustment committee hearing a disciplinary report) appears biased. Advocates should work to present evidence of that bias if any can be discovered.