In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3105
C HARLES W ATKINS,
Plaintiff-Appellee,
v.
B ARBARA K ASPER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 05 C 28—Theresa L. Springmann, Judge.
A RGUED O CTOBER 28, 2009—D ECIDED M ARCH 31, 2010
Before R IPPLE, W ILLIAMS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. In this civil rights case under
42 U.S.C. § 1983, we consider the scope of prisoners’ First
Amendment rights to complain about prison conditions.
Charles Watkins, an inmate at Indiana’s Miami Correc-
tional Facility (“MCF”), brought a § 1983 action against
Dr. Barbara Kasper, a librarian for the MCF’s law library,
alleging that Kasper retaliated against him for exercising
2 No. 08-3105
his First Amendment right to criticize library policies.
The case went to a trial before a jury, who heard the
following evidence.
Around July 2003, Watkins got a job as an “offender law
clerk” in the MCF’s law library. Besides a salary of
$1.25/day, the job offered the perks of more frequent
access to the library and more space for Watkins to keep
his personal legal materials. Watkins soon met Kasper, a
Ph.D. in library science whom the MCF hired in August
2003. The MCF was expanding its library facilities and
brought in Kasper to manage a second law library, but
because the second library didn’t open until some time
after her arrival, Kasper started out in the same library
as Watkins.
Watkins’s and Kasper’s working relationship was not
ideal. Kasper disapproved of the law clerks’ practice of
helping other inmates prepare their own legal documents.
In January 2004, she told the clerks to stop providing
such legal assistance; instead, they were simply to help
inmates locate the forms and sources that they needed
to do their own legal work. Kasper also ordered the law
clerks to remove their personal legal materials from the
library, which needed to be cleaned in preparation for
an accreditation inspection by the American Correctional
Association.
Disappointed with the law clerks’ continued failure to
remove their property from the library, Kasper and other
prison officials called the law clerks to a meeting on
February 13. Kasper reiterated that the law clerks were
to stop their prior practices of storing personal materials
No. 08-3105 3
in the library and giving legal assistance to other inmates.
Watkins objected to the restriction on providing legal
assistance, which, in his view, violated his constitutional
rights and interfered with his ability to do his job of
helping other inmates.
The day after the meeting, Kasper decided that she
could no longer wait for the law clerks’ cooperation in
cleaning up the library. Since Watkins and the other law
clerks had ignored multiple requests to remove their
personal materials from the library, Kasper resolved to
do it herself. Kasper enlisted several of Watkins’s fellow
inmates to assist with the cleanup, and when they came
across Watkins’s materials, the inmates suggested that
Kasper summon Watkins to the library to remove them.
Ignoring these suggestions, Kasper proceeded to box up
Watkins’s materials and, according to the inmates,
throw some of them in the trash.
In addition to removing Watkins’s personal materials
from the library, Kasper wrote a negative job evaluation
and conduct report based on Watkins’s failure to remove
them himself. She also recommended that Watkins be
fired as an offender law clerk for this misconduct, and
he was. For the next few weeks, Watkins had difficulty
obtaining passes to visit the library to work on his state-
court post-conviction proceedings. According to Watkins,
Kasper instructed the offender in charge of preparing
library passes not to grant them to Watkins, effectively
denying him access to the library.
Despite this restricted library access, Watkins managed
to obtain a pass to visit the library on February 26. At
4 No. 08-3105
that time, Watkins confronted Kasper and complained
that some of his legal materials had been left in the
library on a table where other offenders could rummage
through them. He also pointed out that a few of his
materials, including legal pamphlets and transcripts
from his prior court proceedings, were missing. Watkins
was none too subtle. During trial, Watkins admitted that
he spoke to Kasper with a “loud and boisterous voice”
and exaggerated hand gestures. Kasper testified that she
felt threatened by Watkins and, accordingly, wrote up
a conduct report against him for intimidation. In subse-
quent proceedings, the prison disciplinary board found
Watkins not guilty of intimidation but guilty of the
lesser offense of disorderly conduct.
The continued friction between Watkins and Kasper
apparently didn’t undermine Watkins’s library skills, for
Kasper rehired him as a law clerk on March 25, 2004. Still,
the controversy between them was just beginning. In
February 2005, Watkins brought this § 1983 suit against
Kasper (and several other prison officials no longer
parties to the case) for retaliating against his exercise of
free speech. At trial, Watkins, proceeding pro se, argued
that Kasper was angry at him for criticizing library
policies and responded with a series of illegitimate disci-
plinary actions, including filing false work evaluations
and conduct reports against Watkins, disposing of his
personal legal materials, and denying him access to the
library.
Kasper, of course, denied retaliating against Watkins’s
free speech. She testified that she wrote a negative job
No. 08-3105 5
evaluation and recommended firing Watkins because
he failed to remove his materials from the library as
ordered, not because he spoke out against her policies
at the February 13 library meeting. She also denied dis-
posing of Watkins’s legal materials or restricting his
access to the prison library, which she claimed she lacked
the authority to do. As for the February 26 conduct report
for intimidation, Kasper felt that this report was justi-
fied based on Watkins’s threatening, unruly behav-
ior in complaining about the placement of his legal mate-
rials in the library.
It seems that experience as an offender law clerk pays
off in the courtroom; Watkins won. The jury found that
Kasper retaliated against Watkins’s First Amendment
rights and awarded Watkins $150 in compensatory dam-
ages and $1000 in punitive damages. Kasper made two
post-trial motions for judgment as a matter of law or a
new trial under Federal Rule of Civil Procedure 50,
which the district court denied. Kasper appeals, arguing
that Watkins’s speech during both the February 13
library meeting and February 26 confrontation with
Kasper is unprotected as a matter of law, such that this
speech cannot support Watkins’s First Amendment
retaliation claim.
We review de novo the district court’s denial of Kasper’s
motion for judgment as a matter of law under Rule 50,
but we will overturn the jury’s verdict only if the record
contains “no legally sufficient evidentiary basis” for a rea-
sonable jury to find in favor of Watkins, the non-moving
party. Lasley v. Moss, 500 F.3d 586, 590 (7th Cir. 2007)
6 No. 08-3105
(citation omitted). We review the denial of Kasper’s
motion for a new trial for an abuse of discretion.
Deloughery v. City of Chicago, 422 F.3d 611, 617 (7th Cir.
2005).
To prevail on his § 1983 claim of First Amendment
retaliation, Watkins had to prove 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) a causal
connection between the two. Bridges v. Gilbert, 557 F.3d
541, 546 (7th Cir. 2009) (citation omitted). At issue in
this case is the first requirement, that Watkins engaged
in speech protected by the First Amendment. In Bridges,
557 F.3d at 551, we held that the question of whether
a prisoner’s speech is protected is governed by the stan-
dard established in Turner v. Safley, 482 U.S. 78, 89
(1987), under which a prison regulation that impinges on
prisoners’ constitutional rights is valid if “reasonably
related to legitimate penological interests.” In applying
the Turner standard to a First Amendment retaliation
claim, we examine whether the prisoner engaged in
speech in a manner consistent with legitimate peno-
logical interests. See Bridges, 557 F.3d at 551 (concluding
that the prisoner’s speech was not inconsistent with
legitimate penological interests). Here, Watkins bases
his retaliation claim on two distinct acts of speech—
his February 13 criticism of Kasper’s library policies
and his February 26 oral complaint about the placement
of his personal materials in the library—and we consider
each in turn.
No. 08-3105 7
Beginning with Watkins’s February 13 speech, before
we apply the legitimate penological interests test, we
must address whether Watkins had the additional
burden of proving that this speech satisfied the “public
concern” test. Developed by the Supreme Court in the
public employment context, this test provides that a
public employee’s speech must relate to a matter of
“public concern,” rather than mere “personal interest,” in
order to support a First Amendment retaliation claim.
Connick v. Myers, 461 U.S. 138, 147 (1983). As explained
in Connick, this public concern requirement promotes
efficient government operations by respecting public
employers’ authority to manage their offices and disci-
pline their employees. If a public employee expresses a
personal complaint about workplace policy not involving
a matter of public concern, the employer should have
“wide latitude” in responding, “without intrusive over-
sight by the judiciary in the name of the First Amend-
ment.” Id. at 146. Otherwise, every employment decision
could become a “constitutional matter,” and “govern-
ment offices could not function.” Id. at 147.
The Court extended the public concern requirement in
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), holding that
disciplinary actions taken in response to statements
made as part of a public employee’s “official duties,”
rather than “as a citizen,” are not actionable retaliation,
even if that speech relates to a matter of public concern.
As in Connick, the Court emphasized the significant
control that government employers, no less than private
employers, must have over their employees’ speech in
order to operate efficiently. Id. at 418.
8 No. 08-3105
In Bridges, we generally disavowed the public concern
test in prisoner free speech cases, reasoning that the
vast differences between the government’s relationships
with public employees and with prisoners made the test
unworkable in the prison context. See 557 F.3d at 550-51.
But we left open the possibility that a prisoner’s speech
made as an employee of the prison might be subject to
a public concern limitation, suggesting that the rationales
underlying the Connick-Garcetti case line are transferable
to such prisoner-employee speech. Id. at 552 n.3. Since
Watkins spoke as a prisoner-employee when he criti-
cized Kasper’s library policies during the February 13
meeting, we must now resolve the public concern/prisoner-
employee question left open by Bridges.
Upon further consideration, we think that it’s time
to completely jettison the public concern test from
our prisoner free speech jurisprudence, even in the
case of speech by a prisoner-employee. In our view, the
dynamics of the government’s relationships with prisoner-
employees and with public employees are too dissimilar
to transfer the public concern test to the prison context.
In the public employment cases, the Supreme Court has
drawn a fine line between the speaker’s role as a citizen
and as a public employee. See Garcetti, 547 U.S. at 418-19.
A citizen who wants the benefits of a government job
may be expected to accept certain restrictions on speech
made as a public employee, id. at 418, restrictions that
the public employer would have no authority to impose
but for the employment relationship. As the Court has
emphasized, giving public employers this discretion to
No. 08-3105 9
limit their employees’ internal workplace complaints is
essential for efficient government operations. See id. at 422-
23. Outside of the public employee’s job, however, these
operational concerns fade, and the employee may go
back to living and speaking as an ordinary citizen. In
essence, the public employee’s relationship with the
government employer, and the corresponding restraint
on the employee’s speech, is limited to the job itself.
In the prison setting, the prisoner’s job is only one part
of a much broader, comprehensive penological program
in which prison officials control all aspects of the
prisoner’s life. See Bridges, 557 F.3d at 552 n.3. And at
least with respect to the MCF’s program, the job is an
essential and wholly integrated part. Watkins was not
one of a privileged few prisoners who managed to land
a prison job. As Watkins explained during his trial testi-
mony, with few exceptions, “everybody works” at MCF,
providing a wide variety of prison services such as
library, cafeteria, and recreation. So unlike the typical civil
servant who enjoys a life outside of work, the MCF pris-
oner cannot so neatly separate his public employment
from his after-hours life as an inmate. See Thaddeus-X v.
Blatter, 175 F.3d 378, 393 (6th Cir. 1999) (en banc) (noting
the dissimilarities between the government’s relation-
ships with a prisoner and with a public employee).
This observation—that the prisoner’s job is only a
small aspect of a larger penological program—relates to a
second reason why the public concern test is unworkable
in the prison employment context. Any marginal discre-
tion that the public concern test might give prison
10 No. 08-3105
officials in controlling prisoner-employees is eclipsed by
the substantial discretion that they already have in con-
trolling the entire prison population. Prison officials are
not as constrained as other government employers, who
without the Connick-Garcetti case line would have little
authority to limit their citizen-employees’ free speech.
Under Turner, prison officials have broad discretion to
regulate prisoners’ speech when consistent with “legiti-
mate penological interests.” Turner, 482 U.S. at 89. Given
their broad background authority under Turner, prison
officials don’t need the benefit of the public concern
requirement, and attempting to graft this requirement
onto prisoner-employees’ free speech claims would
needlessly complicate the legitimate penological
interests test.
In sum, then, we hold that the public concern test
developed in the public employment context has no
application to prisoners’ First Amendment claims, even
in the case of speech by a prisoner-employee. It follows
that Watkins did not have to prove that his February 13
speech criticizing Kasper’s library policies, though made
while an employee of the library, related to a matter
of public concern. What he did have to prove is that
he engaged in this speech in a manner consistent with
legitimate penological interests.
In evaluating Watkins’s speech under the legitimate
penological interests test, our starting point is Turner, in
which the Supreme Court examined a prison regulation
limiting inmate-to-inmate correspondence. See 482 U.S.
at 91-93. The Court discussed several relevant factors:
No. 08-3105 11
whether a “valid, rational connection” exists between the
regulation and the legitimate interest put forth to justify
it; whether “alternative means of exercising the right . . .
remain open to prison inmates”; “the impact accommoda-
tion of the asserted constitutional right” will have on
prison officials and inmates; and the availability of
“obvious, easy alternatives” to the challenged regula-
tion. 482 U.S. at 89-90 (citations omitted).
Although Turner dealt with a direct challenge to a
prison regulation rather than a retaliation claim like
Watkins’s, see Bridges, 557 F.3d at 549, several Turner
factors are relevant to the question of whether Watkins’s
February 13 speech is an activity protected by the First
Amendment. As for the “the impact” of accommodating
this speech, Watkins’s criticism of Kasper’s policies
during the February 13 library meeting had a negative
impact on Kasper’s legitimate interests in discipline and
providing efficient library services. By openly challenging
Kasper’s directives in front of other prisoner law clerks,
Watkins impeded her authority and her ability to imple-
ment library policy. Cf. Smith v. Mosley, 532 F.3d 1270, 1277
(11th Cir. 2008) (Insubordinate remarks that are “incon-
sistent with the inmate’s status as a prisoner or with the
legitimate penological objectives of the corrections sys-
tem” are not protected. (quotation omitted)). What’s
more, Watkins’s criticism related to not only his own job
interests but also the interests of other inmates, as he
objected to Kasper’s restriction on clerks’ providing legal
assistance. This advocacy on behalf of his fellow inmates
made Watkins’s complaints particularly disruptive to
Kasper’s legitimate policy interests. See Shaw v. Murphy,
12 No. 08-3105
532 U.S. 223, 231 (2001) (observing that the advocacy of
inmate law clerks, though important in many contexts,
often undermines prison discipline).
Regarding the availability of “alternative means” for
Watkins to express his complaints, this Turner factor
further illustrates that Watkins’s February 13 speech was
inconsistent with legitimate penological interests. Al-
though Watkins has a general First Amendment right to
criticize Kasper’s library policies, he must do so “in a
manner consistent with his status as a prisoner.” Freeman v.
Tex. Dep’t of Criminal Justice, 369 F.3d 854, 864 (5th Cir.
2004). Instead of openly criticizing Kasper’s directives
during a meeting with other law clerks, Watkins could
have taken the less disruptive approach of filing a
written complaint. See Jackson v. Cain, 864 F.2d 1235, 1248
(5th Cir. 1989) (concluding that written complaints about
the treatment of a prisoner’s property and work assign-
ments “may not adversely affect the discipline of the
prison”). Because Watkins’s public challenge to Kasper’s
directives was inconsistent with her legitimate interests
in discipline and library administration, this speech is
unprotected as a matter of law under Turner.
We acknowledge that not all of Kasper’s alleged re-
sponses to Watkins’s February 13 speech were rationally
related to the legitimate penological interests that we
have identified. At trial, Watkins argued that Kasper
did not merely fire him for criticizing her library
policies and replace him with a more compliant law
clerk. Instead, she took a host of disciplinary actions
unrelated to Watkins’s job as a law clerk, including dis-
No. 08-3105 13
posing of his personal legal materials and denying him
access to the law library. Admittedly, these acts of de-
stroying Watkins’s property and restricting his library
access would not advance Kasper’s legitimate interests
in discipline and efficient library services. Even so, the
particular nature of the adverse actions cited by
Watkins does not affect our analysis of his retaliation
claim, which goes to the threshold question of whether
his February 13 speech was an “activity protected by the
First Amendment.” Bridges, 557 F.3d at 546. Since we
conclude that this speech is not protected under the
legitimate penological interests test, it cannot support
Watkins’s First Amendment retaliation claim.
That is not to suggest that prison officials may punish
prisoners with impunity for their complaints about
prison policy, merely because those complaints are exer-
cised in a manner inconsistent with legitimate peno-
logical interests. Importantly, a prisoner who suffers the
type of arbitrary discipline alleged by Watkins has reme-
dies other than a First Amendment retaliation claim. To
the extent that Watkins relies on the destruction of his
personal legal materials, his complaint is better character-
ized as a deprivation of property claim, for which he
may seek relief at state law. See Hudson v. Palmer, 468 U.S.
517, 533 (1984) (holding that an intentional deprivation
of a prisoner’s property does not violate the Due Process
Clause if adequate state post-deprivation remedies are
available); Wynn v. Southward, 251 F.3d 588, 592-93 (7th
Cir. 2001) (per curiam) (noting that the Indiana Tort
Claims Act is an adequate post-deprivation remedy for
the loss of a prisoner’s personal property). As for
14 No. 08-3105
Watkins’s claim that Kasper retaliated against him by
restricting his access to the law library, this complaint
goes more to Watkins’s right of access to the courts than
his free speech rights. See Lewis v. Casey, 518 U.S. 343, 350-
51 (1996) (examining the importance of an adequate law
library to prisoners’ right of access to the courts); Marshall
v. Knight, 445 F.3d 965, 968-69 (7th Cir. 2006) (recognizing
a prisoner’s access-to-courts claim based on diminished
access to the prison law library). Watkins cannot use
these property and access-to-courts harms to salvage a
First Amendment retaliation claim from his February 13
speech, which we conclude is inconsistent with Kasper’s
legitimate penological interests.
We turn to the second act of speech on which Watkins
bases his First Amendment retaliation claim—his Feb-
ruary 26 oral complaint to Kasper about the placement
of his legal materials in the library. A prisoner has a
First Amendment right to make grievances about condi-
tions of confinement, including the mistreatment of his
personal property. Hasan v. U.S. Dep’t of Labor, 400 F.3d
1001, 1005 (7th Cir. 2005) (addressing a prisoner’s griev-
ance about a guard’s tampering with his typewriter).
Still, under the legitimate penological interests test, the
prisoner must exercise that right “in a manner consistent
with his status as a prisoner.” Freeman, 369 F.3d at 864.
We conclude that the confrontational, disorderly
manner in which Watkins complained about the treat-
ment of his personal property removed this grievance
from First Amendment protection. Watkins did not con-
fine himself to a formal, written grievance or a courte-
No. 08-3105 15
ous, oral conversation with Kasper about the placement
of his legal materials. Instead, he confronted Kasper face-
to-face in the library, presumably within earshot of other
prisoners, using a loud voice and active hand gestures,
prompting Kasper to file a conduct report for intimida-
tion. See id. (observing that the prisoner went beyond
internal grievance procedures to a “public rebuke” of a
prison official). The confrontational approach that
Watkins used to make his grievance was inconsistent
with the legitimate penological interest of prison
discipline and order. See Brodheim v. Cry, 584 F.3d 1262,
1273 (9th Cir. 2009) (recognizing that a grievance
presented in a way that posed “a substantial threat to
security and discipline” would be unprotected); Pilgrim v.
Luther, 571 F.3d 201, 205 (2d Cir. 2009) (finding that a
pamphlet urging inmates to engage in work stoppages
was inconsistent with legitimate penological interests);
Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008) (charac-
terizing a prisoner’s foul comment to a prison official
that was “insulting, derogatory, and questioned her
authority” as unprotected speech); Freeman, 369 F.3d at
864 (concluding that a public rebuke of a prison chaplain
that incited some fifty prisoners to walk out of a church
service was inconsistent with prison discipline).
It is also important that the MCF’s prison discipli-
nary board found, and Watkins doesn’t dispute, that
Watkins committed the offense of disorderly conduct by
confronting Kasper in such a disruptive manner. Watkins
cannot rely on an act of speech that he concedes violated
legitimate prison rules as the basis for his free speech
retaliation claim. See Smith, 532 F.3d at 1277 (concluding
16 No. 08-3105
that speech found to be false and insubordinate under a
valid prison regulation was unprotected); Thaddeus-X, 175
F.3d at 395 (“[I]f a prisoner violates a legitimate prison
regulation, he is not engaged in ‘protected conduct,’ and
cannot proceed beyond step one” of a First Amendment
retaliation claim.).
Both acts of speech on which Watkins bases his First
Amendment retaliation claim are inconsistent with legiti-
mate penological interests. These speech acts are unpro-
tected as a matter of law and cannot support the jury’s
verdict in favor of Watkins. We R EVERSE and R EMAND
with instructions to enter judgment in favor of Kasper.
3-31-10