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Free Speech Rights are Triable Issue in Prison Lawsuit

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By Robyn Hagan Cain on October 12, 2011 4:09 PM

Even in prison, an employee can be fired from his job, and appeal his dismissal.

Jeremy Greene, a Wisconsin prisoner serving time for a murder conviction, worked as a clerk in the prison library. John Doruff, the prison’s director of education, ordered Green’s firing after concluding that Green had highlighted photocopies of judicial opinions and stolen a judicial opinion for personal use while on the job.

Greene responded by filing a complaint in the prison grievance system against Doruff, charging that Doruff had had no cause for firing him. A month later, but, apparently just a day after the Greene had told the librarian that he had filed a grievance against Doruff, Doruff filed a conduct report attempting to justify Greene’s dismissal.

The problem? Greene had proof that he didn't steal the opinion, (which ironically, was a Seventh Circuit Court of Appeals qualified immunity decision).

Greene's theft charge was dropped, but the photocopy allegation resulted in a disciplinary hearing, 14 days of a confinement, and destruction of the "contraband" photocopies. Greene challenged the discipline in state court, and the matter was expunged from his prison record.

Greene filed this prison lawsuit against Doruff, charging that he had been punished for exercising his free speech in a grievance against Doruff, rather than prison rules violations. Doruff moved for summary judgment.

The district court judge, relying on Fairley v. Andrews, granted Doruff's motion for summary judgment, finding there was no triable issue because Greene had not established that his potential testimony, not internal complaints, caused the assaults and threats.

The Seventh Circuit Court of Appeals, giving deference to Greene's testimony about the timing of his grievance, as well as the scant details of Doruff's conduct report, found that there was sufficient evidence to create a triable issue for a court to decide.

It sounds as though Greene's litigious persistence is finally paying off. He has been litigating away his days in prison since he began his sentence in 2002, according to the Milwaukee Journal Sentinel; Greene has lost most of his cases.

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