15

‐ 1631

Burns v. Martuscello

UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2

__________ __________ 3

4

August Term, 2017 5

6

(Argued: October 11, 2017 Decided: May 9, 2018) 7

8

Docket No. 15

‐ 1631 9

10

__________ __________ 11

12

MARK BURNS, 13

14

Plaintiff

‐ Appellant

, 15

16

v. 17

18

DANIEL F. MARTUSCELLO, JR., Superintendent, Coxsackie Correctional 19

Facility, CAPTAIN SHANLEY, Coxsackie Correctional Facility, SERGEANT 20

NOEH, Coxsackie Correctional Facility, SCHWEBLER, Guidance Counselor, 21

Coxsackie Correctional Facility, BRIAN FISCHER, Commissioner of New York 22

State Department of Corrections, TERESA KNAPP

‐ DAVID, Director of 23

Movement and Control, New York State DOCCS, MCGLYNN, Guidance 24

Counselor, Coxsackie Correctional Facility, 1 25

26

Defendants

‐ Appellees

. 27

28

__________ __________ 29

30

1 The clerk is respectfully directed to amend the caption as above.2 Before: WALKER and POOLER, Circuit Judges, CRAWFORD, District Judge

. 2 1

2

Appeal from United States District Court for the Northern District of New 3

York (Lawrence E. Kahn, J .; Christian F. Hummel, M.J. ) granting summary 4

judgment to defendants on a First Amendment retaliation claim, and Eighth and 5

Fourteenth Amendment claims related to plaintiff Mark Burns’s placement in 6

restricted custody after he refused (i) to serve as a prison informant, or (ii) to 7

provide false information regarding an incident within the facility. With regard 8

to the First Amendment retaliation claim, we hold that the First Amendment 9

protects a prisoner’s right not to serve as a prison informant or provide false 10

information to prison officials. Because we have not previously recognized this 11

speech and speech

‐ related activity as protected by the First Amendment, we 12

nonetheless affirm the judgment of the district court on qualified immunity 13

grounds. 14

Affirmed. 15

__________ __________ 16

2 Judge Geoffrey W. Crawford, United States District Court for the District of

Vermont, sitting by designation.3 NOAM BIALE, Sher Tremonte LLP (Michael W. 1

Gibaldi, on the brief ), New York, N.Y., for Plaintiff

‐ 2

Appellant Mark Burns

. 3

4

ROBERT M. GOLDFARB, Assistant Solicitor General 5

(Barbara D. Underwood, Andrew D. Bing, on the brief ), 6

for Eric T. Schneiderman, Attorney General of the State 7

of New York, Albany, N.Y., for Defendants

‐ Appellees 8

Daniel F. Martuscello et al. 9

10

POOLER, Circuit Judge : 11

Plaintiff

‐ Appellant Mark Burns appeals from a February 10, 2015 decision 12

and order of the United States District Court for the Northern District of New 13

York (Kahn, J .), adopting the report

‐ recommendation of the magistrate judge 14

(Hummel, M.J. ) in its entirety, and granting summary judgment to defendants. 15

Burns brought several Section 1983 claims, alleging that his First, Eighth, and 16

Fourteenth Amendment rights were violated when he was put on a restricted 17

status known as Involuntary Protective Custody (“IPC”) for over six months, 18

after he refused the demands of prison guards to act as a “snitch,” or to falsify 19

his account of a minor incident in the commissary. With regard to the First 20

Amendment retaliation claim, the district court reasoned that Burns was not 21

engaged in protected speech or conduct, because the First Amendment did not 22

protect Burns’s refusal to snitch. 234 Today we hold that the First Amendment protects both a prisoner’s right 1

not to serve as an informant, and to refuse to provide false information to prison 2

officials. We have previously held that citizens enjoy a First Amendment right to 3

refuse to provide false information to the government, but have not previously 4

recognized this right in the prison context. See Jackler v. Byrne

, 658 F.3d 225 (2d 5

Cir. 2011). With regard to a prisoner’s right not to snitch, we have not previously 6

reached this issue—though we have encountered it and declined to decide it on 7

at least two prior occasions. See Willey v. Kirkpatrick

, 801 F.3d 51 (2d Cir. 2015); 8

Allah v. Juchenwioz

, 176 F. App’x 187, 189 (2d Cir. 2006) (summary order). Because 9

these rights were not clearly established at the time of the events underlying this 10

suit, the defendants are entitled to qualified immunity. For these reasons, we 11

affirm the judgment of the district court. 12

BACKGROUND 13

I. Facts 14

Burns is an inmate in the custody of the New York State Department of 15

Corrections and Community Supervision, and, at all times relevant to his claims, 16

was an inmate at Coxsackie Correctional Facility. As we must at summary 17

judgment, we credit Burns’s account of events, and draw all reasonable 185 inferences in his favor. See Reyes v. Lincoln Auto. Fin. Servs

., 861 F.3d 51, 54 (2d 1

Cir. 2017), as amended (Aug. 21, 2017). 2

Burns began working as a stock clerk in the Coxsackie commissary 3

beginning in April of 2010. According to Burns, on May 19, 2010, he was in the 4

commissary removing stock from shelves, when a can fell from a high shelf and 5

struck him in the face and neck. Burns suffered minor injuries—namely, redness 6

on his face, which subsequently became a small bruise, and a scratch on his neck. 7

Burns reported the injury to commissary staff and signed a medical waiver. The 8

next day, May 20, an inmate injury report was filed, indicating that Burns had 9

been injured by a falling can in the commissary. 10

Also on May 20, 2010, Burns asserts that he was again working in the 11

commissary when he was approached by defendants Sergeant Noeh and Captain 12

Shanley. Noeh and Shanley told Burns that his wife had called and complained 13

that Burns had been “cut” by a fellow inmate. Report

‐ Recommendation and 14

Order at 4, Burns v. Martuscello

, 13

‐ cv

‐ 486, ECF No. 46 (N.D.N.Y. Dec. 18, 2014). 15

In Burns’s telling of the events, he denied having any altercation with a fellow 16

inmate. Burns also pointed out that he had no cut, and that his apparent, minor 17

injuries were the result of the can falling on him the day before. Burns further 186 explained that a correctional officer assigned to the commissary had witnessed 1

the accident and documented it as a work

‐ related injury. Burns also questioned 2

whether his wife made any such call. However, Burns told Noeh and Shanley 3

that he had recently been experiencing marital difficulties, and theorized that if 4

his wife had in fact called, it was due to their marital discord. 5

According to Burns, Shanley then proposed a deal. He told Burns that he 6

intended to recommend Burns for placement in IPC, citing the call from Burns’s 7

wife as an indication of a threat to Burns’s safety. But, Shanley offered to let 8

Burns avoid this restricted status if Burns agreed to be the guards’ snitch. 9

Shanley and Noeh did not say that that they had a particular reason to believe 10

Burns would have information, but instead said that Burns knew “what goes 11

on.” Joint App’x at 48. If Burns didn’t agree to this arrangement, the guards 12

threatened that Burns would be relegated to IPC indefinitely. Burns refused to go 13

along with the guards’ request. Shanley then instructed Noeh to write an IPC 14

recommendation. In the subsequent IPC recommendation, Noeh noted that 15

Burns’s wife called and reported he was cut, that Burns had a bruised left eye but 16

no visible cut, and that Burns reported that a can fell on him, causing the bruise. 177 On May 26, 2010, a hearing commenced to determine whether Burns 1

would be put in IPC. Burns opposed the transfer. Burns indicated that he would 2

like to call as a witness correctional officer Jablanski, who had been assigned to 3

the commissary when the can fell, and the hearing adjourned. 4

According to Burns, at some point near the initial hearing—about a week 5

after the can fell—Shanley and Martuscello approached Burns and repeated the 6

demand that Burns be “their snitch.” Shanley and Martuscello also said that they 7

“had a new theory that [Burns] was assaulted by staff and that when [Burns] 8

agreed to snitch [he] would be let out but until then [he] could rot in IPC.” Joint 9

App’x at 22. 10

The hearing resumed on June 7, 2010. Officer Jablanski testified that he 11

recalled that a can fell from the top shelf and hit Burns in the face, and that Burns 12

reported the event to him. Jablanski also noted that he logged the injury. Noeh 13

then testified that Burns’s wife called and reported that Burns had been “cut.” 14

Supp. App’x at 69. Noeh further testified that Burns “had no cuts on him but he 15

had a black eye, which he claimed he got from a can falling.” Supp. App’x at 69. 16

When asked if he knew whether there was “a threat to Mr. Burns[’] safety within 17

the general inmate population” at Coxsackie, Noeh replied, “[i]f I go by the 188 inmate[’]s word, no.” Supp. App’x at 69. Shanley then testified that he 1

recommended Burns for IPC status after receiving a phone call from Burns’s wife 2

and determining that Burns’s injuries were consistent with having an altercation. 3

That same day, June 7, 2010, the hearing officer approved Burns’s 4

placement in IPC. Burns was then transferred to IPC, where he remained until 5

January 2011. This status mandated that Burns remain in his cell for 23 hours a 6

day, and dramatically curtailed his access to the library, religious services, and 7

other prison resources. 8

Burns further recounts that while he was in IPC, Shanley and Martuscello 9

repeatedly demanded that Burns serve as their snitch in order to be released 10

from restricted custody. According to Burns, at one point, Martuscello stopped 11

by Burns’s cell, and, when Burns protested to be released from IPC, Martuscello 12

replied that “only [Martuscello] had the power to change [the] situation,” and 13

that “the only way that would happen was agree to snitch other wise [sic] 14

[Burns] could rot here,” in IPC. Joint App’x at 23. Burns also reports that the 15

officers continued to pressure him to change his account of how he received his 16

injuries. Burns explained time and again that his injuries were the product of a 17

minor workplace mishap, but the guards continued to ask him for a version of 189 events that implicated a guard. In response to these requests, Burns reiterated to 1

the officers that he “couldn’t give them anything that [he] d[id]n’t know,” but the 2

officers insisted that Burns should “give [them] some knowledge and [Burns] 3

would be able to get out.” Joint App’x at 50, 43. 4

During his time in IPC, Burns filed numerous grievances related to his IPC 5

status. After over six months in IPC, Burns was ultimately released from the 6

restricted status upon his transfer to a different correctional facility in early 2011. 7

II. Procedural History 8

On April 30, 2013, Burns filed suit pro se, alleging violations of his 9

constitutional rights. The district court construed Burns’s complaint to raise 10

violations of the First, Eighth, and Fourteenth Amendments. Following 11

discovery, defendants moved for summary judgment, asserting that Burns failed 12

to exhaust administrative remedies, and that the record evidence did not support 13

his Eighth and Fourteenth Amendment claims. 14

The magistrate judge found that Burns had established a genuine issue of 15

material fact regarding exhaustion, but ruled that Burns had failed to establish 16

claims to relief under the Eighth or Fourteenth Amendments. With respect to the 17

First Amendment retaliation claim, the magistrate judge reasoned Burns was not 1810 engaged in protected speech or conduct, since no court has previously held that 1

there was a right to refuse to serve as a prison informant. Defendants did not 2

assert the defense of qualified immunity in their motion for summary judgment, 3

and the magistrate judge did not reach the question. The district court adopted 4

the recommendation of the magistrate in its entirety. 5

Burns appealed. We appointed counsel for the limited purpose of briefing 6

whether there is a constitutional right to refuse to become a prison informant, 7

and dismissed the remainder of Burns’s appeal. 8

DISCUSSION 9

“A grant of summary judgment is reviewed de novo, construing the facts 10

in the light most favorable to the non

‐ moving party and drawing all reasonable 11

inferences in that party’s favor.” Kazolias v. IBEW LU 363

, 806 F.3d 45, 49 (2d Cir. 12

2015). “But because prisoner retaliation claims are easily fabricated, and 13

accordingly pose a substantial risk of unwarranted judicial intrusion into matters 14

of general prison administration, we are careful to require non

‐ conclusory 15

allegations.” Bennett v. Goord

, 343 F.3d 133, 137 (2d Cir. 2003) (quoting Dawes v. 16

Walker

, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. 17

Sorema N.A.

, 534 U.S. 506 (2002)) (internal quotation marks omitted). 1811 In order for a prisoner’s First Amendment retaliation claim under Section 1

1983 to survive summary judgment, a prisoner must show “(1) that the speech or 2

conduct at issue was protected, (2) that the defendant took adverse action against 3

the plaintiff, and (3) that there was a causal connection between the protected 4

speech and the adverse action.” Dolan v. Connolly

, 794 F.3d 290, 294 (2d Cir. 2015) 5

(quoting Espinal v. Goord

, 558 F.3d 119, 128 (2d Cir. 2009)). 6

This appeal centers on the question of whether Burns was engaged in 7

protected speech or conduct when he refused to serve as a snitch. Neither we 8

nor the Supreme Court have squarely addressed this question previously. See 9

Willey v. Kirkpatrick

, 801 F.3d 51, 66 (2d Cir. 2015) (declining to rule on whether 10

there is a right not to serve as a prison informant); Allah v. Juchenwioz

, 176 F. 11

App’x 187, 189 (2d Cir. 2006) (summary order) (similarly declining to rule). We 12

now hold that the First Amendment protects a prisoner’s right not to serve as an 13

informant. 14

Burns’s refusal to alter his account of how he received his minor injuries or 15

otherwise fabricate information also raises the question of whether an inmate 16

retains the right to refuse to provide false information to government officials, 1712 recognized previously in a different context in Jackler

, 658 F.3d 225. We today 1

hold that this right extends to prisoners. 2

I. The Right Not to Speak 3

As a general matter, the First Amendment protects the “right to decide 4

what to say and what not to say.” Jackler

, 658 F.3d at 241. “[T]he right of freedom 5

of thought protected by the First Amendment against state action includes both 6

the right to speak freely and the right to refrain from speaking at all.” Wooley v. 7

Maynard

, 430 U.S. 705, 714 (1977). To force a person to speak, 3 and compel 8

participation, is a severe intrusion on the liberty and intellectual privacy of the 9

individual. Just as compelled silence will extinguish the individual’s right of 10

expression, compelled speech will vitiate the individual’s decision either to 11

express a perspective by means of silence, or to remain humbly absent from the 12

arena. In Riley v. National Federation of the Blind of North Carolina, Inc.

, the 13

Supreme Court explained, 14

3 To be clear, we here refer only to speech made by an individual in her or his

private capacity. We are not presently concerned with, for example, advertising

requirements, which the Supreme Court has observed involve interests that “are

not of the same order as those discussed in Wooley

... and Barnette .” Zauderer v.

Office of Disciplinary Counsel of Supreme Court of Ohio

, 471 U.S. 626, 651 (1985). Nor

are we reviewing “disclosure requirements in the electoral context,” which are

subject to distinct considerations. John Doe No. 1 v. Reed

, 561 U.S. 186, 196 (2010).13 There is certainly some difference between compelled speech and 1

compelled silence, but in the context of protected speech, the difference is 2

without constitutional significance, for the First Amendment guarantees 3

“freedom of speech,” a term necessarily comprising the decision of both 4

what to say and what not to say. 5

6

487 U.S. 781, 796–97 (1988) (emphasis in original). 7

The right not to speak derives largely from the notion, central to our 8

system of government, that the individual’s right to “freedom of mind” must be 9

jealously guarded. W. Va. State Bd. of Educ. v. Barnette

, 319 U.S. 624, 637 (1943). 10

Preserving the “freedom to think as you will and to speak as you think” is both 11

an inherent good, and an abiding goal of our democracy. Whitney v. California

, 12

274 U.S. 357, 375 (1927), overruled in part by Brandenburg v. Ohio

, 395 U.S. 444 13

(1969) (Brandeis, J

., concurring). In service of this core component of liberty, our 14

jurisprudence recognizes a “sphere of intellect and spirit which it is the purpose 15

of the First Amendment to our Constitution to reserve from all official control.” 16

Barnette

, 319 U.S. at 642. 17

In our view, compelled speech presents a unique affront to personal 18

dignity. The decision to withhold speech depends on views and calculations 19

known only to the individual. And since the individual seeks to refrain from 20

speaking, those motivations are all the more obscure, and privately held. See 2114 Abner S. Greene, The Pledge of Allegiance Problem

, 64 Fordham L. Rev. 451, 473 1

(1995) (“[T]he right not to speak is the right not to reveal one’s mind publicly.”). 2

Accordingly, the right not to speak may be abrogated only under carefully 3

policed circumstances. As the Supreme Court has explained, between compelled 4

silence and compelled speech, compelled speech is the more serious incursion on 5

the First Amendment: “It would seem that involuntary affirmation could be 6

commanded only on even more immediate and urgent grounds than silence.” 7

Barnette

, 319 U.S. at 633. 8

In Barnette

, the Supreme Court held that the state could not require 9

students to salute the flag. Id. at 642. The Court found that the requirement 10

“requires affirmation of a belief and an attitude of mind,” and reflected an 11

attempt by officials to “coerce acceptance of [a] patriotic creed.” Id. at 633

‐ 34. 12

Such an intrusion was a significant burden on the “right of self

‐ determination in 13

matters that touch individual opinion and personal attitude.” Id. at 631. As a 14

result, the Court held that the compelled salute impermissibly “invade[d] the 15

sphere of intellect and spirit which it is the purpose of the First Amendment to 16

our Constitution to reserve from all official control.” Id. at 642. 1715 Subsequently, in Wooley

, the Supreme Court ruled that New Hampshire 1

could not compel its citizens to advertise the slogan “Live Free or Die” on their 2

vehicle license plates. 430 U.S. at 713. The Court reasoned that requiring even 3

“the passive act of carrying the state motto on a license plate” violated the First 4

Amendment, because it converted the plaintiff into “an instrument for fostering 5

public adherence to an ideological point of view he finds unacceptable.” Id. at 6

715. 7

Barnette centered on speech of an overtly political nature, and political 8

speech has long stood at the “core” of First Amendment rights. McIntyre v. Ohio 9

Elections Comm’n

, 514 U.S. 334, 346

‐ 47 (1995 )

. However, the protections of the 10

First Amendment are hardly confined to political speech—and the Supreme 11

Court repeatedly “has rejected as ‘startling and dangerous’ a ‘free

‐ floating test 12

for First Amendment coverage based on an ad hoc balancing of relative social 13

costs and benefits.’” United States v. Alvarez

, 567 U.S. 709, 717 (2012) (plurality 14

opinion) (quoting United States v. Stevens

, 559 U.S. 460, 470 (2010)) (internal 15

punctuation omitted). Indeed, the motto “Live Free or Die” at issue in Wooley 16

cannot be fairly categorized as traditional political speech. Rather, Wooley 17

expanded on Barnette ’s notion of First Amendment protection for individual 1816 matters of opinion and morality—“the sphere of intellect and spirit which it is 1

the purpose of the First Amendment to our Constitution to reserve from all 2

official control,” Wooley

, 430 U.S. at 715 (quoting Barnette

, 319 U.S. at 642)—and 3

articulated a strong view of First Amendment protection for matters of personal 4

philosophy and morality. 5

We have also recognized that the First Amendment right not to speak 6

protects the right to refuse to make false statements to the government. See 7

Jackler

, 658 F.3d at 241. In Jackler

, a probation officer filed a report against a fellow 8

officer, asserting that the officer had used excessive force on an arrestee. Id. at 9

230. Other members of the police force then attempted to coerce the plaintiff into 10

withdrawing his report. Id. at 231. When he did not, he was terminated. Id. at 11

232. 12

We found that a First Amendment retaliation claim could lie based on the 13

right not to speak. Drawing on Wooley and Barnette

, as well as a citizen’s right to 14

give truthful evidence, we reasoned that the officer had a First Amendment right 15

to refuse to make false statements to the government: “a citizen has a First 16

Amendment right to decide what to say and what not to say, and, accordingly, 17

the right to reject governmental efforts to require him to make statements he 1817 believes are false.” Id. at 241. We further held that “the First Amendment protects 1

the rights of a citizen to refuse to retract a report to the police that he believes is 2

true, to refuse to make a statement that he believes is false, and to refuse to 3

engage in unlawful conduct by filing a false report with the police.” Id. 4

II. Limited First Amendment Interests of Prisoners 5

While an individual is not stripped of all constitutional rights upon 6

incarceration, an inmate’s constitutional liberties are necessarily limited. “A 7

prison inmate retains those First Amendment rights that are not inconsistent 8

with his status as a prisoner or with the legitimate penological objectives of the 9

corrections system.” Shakur v. Selsky

, 391 F.3d 106, 113 (2d Cir. 2004) (quoting 10

Giano v. Senkowski

, 54 F.3d 1050, 1053 (2d Cir. 1995)) (internal punctuation 11

omitted); see also Pell v. Procunier

, 417 U.S. 817, 822 (1974). Accordingly, while 12

“[i]nmates clearly retain protections afforded by the First Amendment,” O ʹ Lone 13

v. Estate of Shabazz

, 482 U.S. 342, 348 (1987), “the Constitution sometimes permits 14

greater restriction of such rights in a prison than it would allow elsewhere,” 15

Beard v. Banks

, 548 U.S. 521, 528 (2006) (plurality opinion). At bottom, “[t]he 16

governing standard is one of reasonableness.” Shakur

, 391 F.3d at 113 (quoting 1718 Benjamin v. Coughlin

, 905 F.2d 571, 574 (2d Cir. 1990)) (internal punctuation 1

omitted). 2

The majority of the jurisprudence evaluating the scope of a prisoner’s First 3

Amendment rights arises in the context of a challenge to a generally applicable 4

prison policy or regulation. See, e.g.

, Pilgrim v. Luther

, 571 F.3d 201, 204

‐ 05 (2d Cir. 5

2009) (challenge to prison regulation prohibiting organizations of strikes or work 6

stoppages); Shaw v. Murphy

, 532 U.S. 223, 225 (2001) (challenge to policies 7

governing inmate communication with one another regarding legal claims). In 8

evaluating such a policy or regulation, courts employ the framework outlined by 9

the Supreme Court in Turner v. Safley

, 482 U.S. 78, 89

‐ 91 (1987). The Turner 10

inquiry requires us to examine several factors: (1) whether the policy or 11

regulation is “reasonably related to legitimate penological interests;” (2) whether 12

“there are alternative means of exercising the right that remain open;” (3) “the 13

impact that accommodation of the asserted constitutional right will have on 14

guards and inmates;” and (4) whether “ready alternatives” in prison policy that 15

would accommodate the right exist, indicating that the policy is “an exaggerated 16

response to prison concerns.” Id. (internal citations and punctuation omitted). 1719 Here, we do not confront a generally applicable policy or regulation, and 1

thus the Turner framework is not directly applicable. Cf. Harris v. Miller

, 818 F.3d 2

49, 57 (2d Cir. 2016) (noting that prisoners’ Fourth Amendment challenges 3

proceed under Turner when “a prison regulation or policy” is at issue, while 4

distinct reasonableness inquiry generally applies to “isolated” incidents). Rather, 5

Burns alleges that a single incident—his placement in IPC—was in retaliation for 6

the exercise of First Amendment rights. As a result, certain aspects of the Turner 7

framework do not apply here. For example, questions about alternative means of 8

expressing the right are ill

‐ fitting in a single incident case. And indeed, the rights 9

that Burns asserts are not amenable to alternative modes of expression. There is 10

no middle ground between silence and speech. Nonetheless, because Turner itself 11

discussed the First Amendment rights of prisoners, and outlined certain guiding 12

considerations in prisoner cases, we find that the “several Turner factors are 13

relevant to the question of whether [an inmate’s] speech is an activity protected 14

by the First Amendment.” Watkins v. Kasper

, 599 F.3d 791, 797 (7th Cir. 2010). 15

Specifically, the first Turner factor is undoubtedly relevant to a single

‐ 16

incident case, and we take care to emphasize the heightened role of security 17

interests in the prison context. “[M]aintaining prison security and protecting 1820 against increased inmate violence” is “central to all other corrections goals.” 1

Duamutef v. Hollins

, 297 F.3d 108, 112 (2d Cir. 2002) (quoting Senkowski

, 54 F.3d at 2

1054; Thornburgh v. Abbott

, 490 U.S. 401, 415 (1989)). And, as we have observed, 3

“prison officials must be given latitude to anticipate the probable consequences 4

of certain speech, and must be allowed to take reasonable steps to forestall 5

violence.” Id. (quoting Giano

, 54 F.3d at 1055) (internal punctuation omitted). 6

Further, the concern that prison officials may obviously be engaging in an 7

“exaggerated response” is also relevant to a single incident case. Turner

, 482 U.S. 8

at 87. Our review of actions taken by prison officials is “deferential,” Ford v. 9

McGinnis

, 352 F.3d 582, 595 (2d Cir. 2003), but, just as a policy may clearly place 10

too great a burden on inmates’ rights, so too may a single incident plainly 11

constitute an outsize reaction to prison administration concerns. 12

In Turner itself, the Supreme Court ruled that a Missouri rule prohibiting 13

communications between inmates at different institutions, subject to certain 14

exceptions, did not violate the First Amendment. 482 U.S. at 81

‐ 82. The Court did 15

not question that inmates held a First Amendment interest in the speech, but 16

focused on the policy’s relationship to curtailing coordination among inmates for 17

violent acts and gang related activity. Id. at 91. The Court emphasized the 1821 minimal reach of the regulation, which “bars communication only with a limited 1

class of other people with whom prison officials have particular cause to be 2

concerned—inmates at other institutions.” Id. at 92. Finally, the Court found that 3

the lack of available alternatives, and the strain on institutional resources that 4

would be generated by an individualized review of communications, militated in 5

favor of the measure’s constitutionality. Id. at 93. 6

Following Turner

, we have many times encountered challenges to prisoner 7

mail policies. We have repeatedly held, in line with the Supreme Court’s 8

reasoning in Turner

, that a prisoner retains a First Amendment interest in their 9

communications. As we have noted, “a prisoner’s right to the free flow of 10

incoming and outgoing mail is protected by the First Amendment.” Davis v. 11

Goord

, 320 F.3d 346, 351 (2d Cir. 2003). Nonetheless, the right is subject to 12

significant limitation in light of countervailing interests within the correctional 13

system. See, e.g., Johnson v. Goord

, 445 F.3d 532, 535 (2d Cir. 2006) (employing 14

Turner framework to uphold prison policy allowing each prisoner one free stamp 15

per month for personal use). 16

On a handful of occasions, we have considered First Amendment suits 17

arising from specific, isolated actions by guards. In Shakur v. Selsky

, we 1822 considered whether guards’ confiscation of reading New Afrikan political 1

literature “pursuant to personal prejudices” violated an inmate’s First 2

Amendment rights. 391 F.3d 106, 116 (2d Cir. 2004) (internal quotation marks 3

omitted). We reasoned that such an “improper objective” was inconsistent with 4

any reasonable penological purpose. Id. As a result, we found that the 5

confiscation allegations amounted to “a legally sufficient claim of 6

unconstitutional infringement of [the inmate’s] First Amendment right to free 7

expression.” Id. at 117. 8

In Meriwether v. Coughlin

, we upheld a jury verdict finding First 9

Amendment retaliation where inmates who were “outspoken critics of the 10

[prison] administration” were transferred to new facilities. 879 F.2d 1037, 1046 11

(2d Cir. 1989). The prison suffered from corruption and lax security procedures, 12

and inmates became vocal about the poor state of affairs within the institution. 13

Id. at 1039. Specifically, several prisoners “corresponded with state officials and 14

public interest organizations about the problems at [the prison], and many 15

attended [a] meeting at which media contact was demanded.” Id. at 1046. In 16

response, prison officials had the inmates transferred and dispersed throughout 17

various facilities. We recognized that the inmates’ speech was protected by the 1823 First Amendment, and explained that they had made out a retaliation claim 1

because “a reasonable jury could find that the plaintiffs were transferred solely 2

because they exercised their First Amendment rights.” Id. 3

III. The Right Not to Snitch 4

Applying these principles, we find that Burns held a strong First 5

Amendment interest in refusing the demands of the guards that he provide both 6

false information, and truthful information on an ongoing basis. At the most 7

basic level, Burns’s claims derive from the guards’ attempt to force him to speak 8

against his will. The right not to speak, as articulated in Barnette

, Wooley

, and 9

Jackler

, safeguards a humble but vitally important restraint on the government’s 10

coercive powers. And, in light of the unobtrusive but foundational nature of the 11

right not to speak, we think it clear that inmates generally retain a First 12

Amendment interest in declining to speak. 13

Of course, the right not to snitch implicates speech that is not a simple 14

expression of opinion. Crediting Burns’s version of events and drawing all 15

reasonable inferences in his favor, as we must on appeal from summary 16

judgment, Burns’s case presents the questions of whether an inmate may, 17

consistent with the First Amendment, be forced to (i) provide false, inculpatory 1824 information to guards, by fabricating events or falsely casting blame for injuries 1

sustained from a workplace mishap; or (ii) provide true, inculpatory information 2

to guards by acting as their snitch. Invoking Turner

, defendants urge that their 3

actions were in service of prison safety, and that, as a result, Burns cannot be said 4

to have engaged in First Amendment protected speech in refusing to submit to 5

the guards’ demands. However, as we explain, forcing an inmate to snitch, at 6

least on the facts presented here, is not reasonably related to that goal. Nor is 7

compulsion to provide false information. Accordingly, we hold that the First 8

Amendment protects an inmate’s refusal both to serve as a prison informant and 9

to provide false information. 10

A. Jackler and the Right to Refuse to Provide False Information 11

12

To dispose of the simpler question first—it is eminently clear to us that the 13

First Amendment protects an inmate’s right to refuse to provide false 14

information to prison officials. As we held in Jackler

, an individual holds “a First 15

Amendment right to decide what to say and what not to say, and, accordingly, 16

the right to reject governmental efforts to require him to make statements he 17

believes are false.” 658 F.3d at 241. We see no basis to circumscribe this right in 18

the prison context. No legitimate penological objective is served by forcing an 1925 inmate to provide false information. Truth is vital to security. Inaccurate 1

incrimination of others—as the guards are alleged to have sought from Burns 2

here—could lead only to unwarranted punishment. Such arbitrary and 3

manifestly unjust outcomes would plainly undermine the integrity of the 4

correctional system. Accordingly, though we have not previously considered 5

whether the First Amendment rights discussed in Jackler extend to the prison 6

context, we have little difficulty concluding that they do. 7

Indeed, Burns’s experience with his workplace injury neatly parallels the 8

allegations in Jackler

. In both instances, an initial report was made, and officials 9

pressured the plaintiffs to change their accounts of the events in question. 10

Though in Jackler we were concerned with an officer’s right not to retract a report 11

and falsely absolve another of wrongdoing, this same logic naturally extends to 12

the situation here, where officials sought to force the false incrimination of 13

others. Thus it is plain to us that the First Amendment protects an inmate’s 14

refusal to provide false information. Accordingly, by refusing to invent false 15

information, Burns was engaged in First Amendment protected speech. 16

B. The Right Not Serve as a Prison Informant on an Ongoing 17

Basis 18

1926 We also conclude that the First Amendment protects Burns’s refusal to act 1

as the guards’ snitch by providing truthful information. We begin by observing 2

the nature of the speech in question. Safety risks as well as legitimate concerns 3

about personal loyalty play a role in the decision to divulge information and 4

incriminate others. Thus the Supreme Court’s reasoning in Wooley and Barnette

, 5

and the notion of autonomy and “individual freedom of mind” as guiding First 6

Amendment principles, are central to the instant matter. Wooley

, 430 U.S. at 714 7

(quoting Barnette

, 319 U.S. at 637). 8

Further, while the speech at issue is not overtly political—in the sense that 9

it does not involve, for example, campaigning for a candidate—neither is it 10

purely personal. The guards sought continued information regarding the general 11

illicit goings on in the prison—not information about Burns’s personal 12

relationships. And the governance of our criminal justice system, and the 13

methods that may be undertaken in the maintenance of that system, are plainly 14

matters of broad public concern. See Johnson v. California

, 543 U.S. 499, 511 (2005) 15

(observing that “society as a whole suffers” when prison officials’ actions run 16

afoul of generally applicable constitutional principles). 1727 Indeed, outrage regarding similar investigative methods of the British was 1

a major cause of the Revolution, and guided the Framers in crafting the Bill of 2

Rights. The “reviled ‘general warrants’ and ‘writs of assistance’ of the colonial 3

era

... allowed British officers to rummage through homes in an unrestrained 4

search for evidence of criminal activity.” Riley v. California

, 134 S. Ct. 2473, 2494 5

(2014). According to the writings of John Adams, the writs also allowed officers 6

to “enter all houses, shops, etc at will, and command all to assist him.” Charles 7

Francis Adams, The Works of John Adams, II

, 524 (1856). As Justice Gorsuch 8

recently recounted, such practices ignited the fury of the colonists largely 9

because they forced individuals to serve as “snitches and snoops” for the Crown. 10

Transcript of Oral Argument at 82, Carpenter v. United States

, 484 U.S. 19 (2018). 11

In 1761, James Otis denounced the writs as “the worst instrument of arbitrary 12

power, the most destructive of English liberty and the fundamental principles of 13

law, that ever was found in an English law book,” in a Boston debate, and John 14

Adams subsequently described the agitation provoked by the writs, writing, 15

“then and there was the first scene of the first act of opposition to the arbitrary 16

claims of Great Britain. Then and there the child Independence was born.” Boyd 17

v. United States

, 116 U.S. 616, 625 (1886) (quoting Cooley, Const. Lim. 301

‐ 03). 1828 Generally, it is understood that these concerns provided the foundation for 1

the Fourth Amendment. See United States v. U.S. Dist. Court for E. Dist. of Mich., S. 2

Div.

, 407 U.S. 297, 327 (1972) (“[I]t was such excesses as the use of general 3

warrants and the writs of assistance that led to the ratification of the Fourth 4

Amendment.”). And indeed, Fourth Amendment jurisprudence has long 5

recognized a right analogous to the one we recognize today: the right to walk 6

away from police questioning. When an individual, unsuspected of wrongdoing, 7

is approached by a law enforcement officer, the individual “need not answer any 8

question put to him; indeed, he may decline to listen to the questions at all and 9

may go on his way.” United States v. Hooper

, 935 F.2d 484, 490 (2d Cir. 1991) 10

(quoting Florida v. Royer

, 460 U.S. 491, 497

‐ 98) (1983); see also Terry v. Ohio

, 392 11

U.S. 1, 32

‐ 33 (1968) (Harlan, J.

, concurring). 12

Here, by refusing to serve as a snitch, Burns sought to exercise a right akin 13

to the right, enjoyed by members of the public at large, to decline to participate in 14

police questioning. In both cases, a government officer seeks information from an 15

individual who is not under suspicion. In the case of the unconfined individual, 16

she may walk away. But in the case of the prisoner, she cannot walk away, as she 17

is physically incarcerated within the institution. Thus her only recourse is in 1829 speech: she may decline to answer. Accordingly, the speech that we recognize 1

today as protected by the First Amendment fits well within a broader frame of 2

constitutional protection from the government’s ability to compel participation in 3

investigative measures. 4

We also must emphasize the extreme risk that attends the act of snitching 5

in the prison context. “When evaluating compelled speech, we consider the 6

context in which the speech is made.” Evergreen Ass ʹ n, Inc. v. City of New York

, 7

740 F.3d 233, 249 (2d Cir. 2014) (citing Riley

, 487 U.S. at 796–97). Here, the prison 8

setting weighs heavily on our analysis. It is a sobering and deplorable fact that 9

violence occurs with regularity in far too many of our nation’s correctional 10

institutions. It is also well understood that inmates known to be snitches are 11

widely reviled within the correctional system. In light of these facts, a number of 12

courts have found an Eighth Amendment violation where a guard publicly labels 13

an inmate as a snitch, because of the likelihood that the inmate will suffer great 14

violence at the hands of fellow prisoners. See, e.g.

, Irving v. Dormire

, 519 F.3d 441, 15

450

‐ 51 (8th Cir. 2008); Benefield v. McDowall

, 241 F.3d 1267, 1270

‐ 71 (10th Cir. 16

2001); Watson v. McGinnis

, 964 F. Supp. 127, 131 (S.D.N.Y. 1997) (collecting cases). 17

If a prison snitch is found out, then the inmate’s forced service as an informant 1830 may well prompt life

‐ threatening physical harm. And even if the informant is 1

never unmasked, she must shoulder the burden of the knowledge that, if her 2

status as a snitch ever does come to light, violence may well befall her. 3

For these same reasons, the degree of the intrusion on the inmate’s 4

constitutional interests is severe. In Wooley

, the Court compared the flag salute at 5

issue in Barnette to the license plate motto, and observed, 6

Compelling the affirmative act of a flag salute involved a more serious 7

infringement upon personal liberties than the passive act of carrying the 8

state motto on a license plate, but the difference is essentially one of 9

degree. 10

11

Wooley

, 430 U.S. at 715. The act of providing information about general criminal 12

goings on of a prison is appreciably more active than the salute in Barnette : the 13

guards sought to have Burns affirmatively report information about the 14

wrongdoing of others, on potentially an ongoing basis, contrary to his wishes 15

and at great physical peril. Put another way, the act of disclosing inculpatory 16

information about other inmates requires a good deal more of the individual 17

than a salute. More than a gesture is at stake. 18

Concurrently, we think it significant that the prison setting amplifies the 19

degree of the incursion beyond the moment of reporting inculpatory 2031 information. The subjects of an informant’s reporting either live or work in the 1

same facility where the informant is confined. It is likely that the inmates or 2

guards implicated by the informant are within the informant’s immediate 3

surroundings, rather than the remote reaches of the facility, and that this regular 4

contact provided the foundation for the informant’s report. Thus the jailhouse 5

snitch is imprisoned alongside the very individuals that pose the greatest risk to 6

her safety, creating a unique burden on the liberty interests of the individual 7

inmate. 8

We also think it clear that forcing an inmate to serve as an informant on an 9

ongoing basis is not reasonably related to a legitimate penological purpose— 10

namely, safety. It is of course possible, as a general matter, that information 11

obtained compulsorily from prisoners may provide officials with some 12

advantage in maintaining order. But not all inmates will be able to obtain or 13

provide information that in fact would be useful to preserve safety within the 14

institution. And, indeed, forcing inmates to serve continuously as snitches may 15

well prompt further violence, as others may seek retribution for perceived 16

betrayals. Coercing inmates to serve as informants is, at best, an “exaggerated 1732 response to prison concerns.” Turner

, 482 U.S. at 90 (internal quotation marks 1

omitted). 2

Thus it is clear to us that the actions of the guards here were an 3

unreasonable incursion on Burns’s First Amendment rights. The requests from 4

the guards indicate that they sought general information from Burns about any 5

illicit goings

‐ on at the facility that Burns might become aware of in the future. As 6

discussed above, such an obligation is a heavy burden for any inmate to bear. 7

And the record does not reflect any hefty countervailing considerations that 8

might have outweighed Burns’s strong constitutional interest under the 9

circumstances at hand. Rather, it appears that the prison was experiencing 10

relatively run of the mill operations, when guards attempted to conscript Burns 11

into serving as a covert ally among the inmate population. Crediting Burns’s 12

version of events, it appears that he was singled out because he made an easy 13

mark: the mild injuries he sustained from the falling can allowed the guards to 14

credibly assert that Burns was at risk within the facility, and thus gave the 15

guards the opportunity to place Burns in restricted custody for an extended 16

period in order to pressure Burns to cede to their demands. Drawing all 17

inferences in Burns’s favor, as we must, such an arbitrary incursion on Burns’s 1833 First Amendment rights as alleged here cannot be countenanced under our 1

constitutional system. 2

In support of their assertion that the First Amendment does not protect the 3

speech in question, defendants direct our attention to the government’s power to 4

subpoena witnesses, and contend that the First Amendment is not implicated 5

here because of the longstanding rule that “the public has a right to every man’s 6

evidence.” United States v. Nixon

, 418 U.S. 683, 709 (1974) (internal ellipsis 7

omitted). But this argument is unavailing. First Amendment rights are clearly at 8

stake when a person gives evidence. See Jackler

, 658 F.3d at 239 (“Voluntarily 9

appearing as a witness in a public proceeding or a lawsuit is a kind of speech 10

that is protected by the First Amendment.”) (quoting Kaluczky v. City of White 11

Plains

, 57 F.3d 202, 210 (2d Cir. 1995)). And, while the government may compel a 12

witness to divulge evidence under appropriate circumstances, the considerations 13

governing the constitutional inquiry into such a compulsion are quite distinct 14

from the instant matter. 15

First, this long

‐ observed principle does not entitle the government to all 16

evidence under all circumstances, as defendants suggest. The Fifth Amendment, 17

for example, constrains the government’s ability to force self

‐ incrimination. And 1834 a subpoenaed witness enjoys protections utterly unattainable for the inmate. A 1

subpoena can be contested, and a court may quash or limit the scope of the 2

subpoena if it is overbroad, or otherwise abusive of an individual’s rights and 3

privileges. See, e.g., In re Grand Jury Subpoena Dated Oct. 22, 2001

, 282 F.3d 156, 160 4

(2d Cir. 2002) (quashing subpoena that would have required attorney testimony 5

violating work product doctrine). 6

Burns’s case itself provides a dramatic example of the difference between a 7

subpoenaed witness and a potential prison informant. Burns was put on a highly 8

restrictive status for over six months when he refused vague and repeated 9

demands for information. According to Burns, the guards simply wanted 10

someone to act as their snitch—indicating that the potential subjects and scope of 11

the guards’ interest were near limitless within the facility. This is hardly akin to a 12

witness being called to recount specific facts relevant to an investigation or trial 13

proceeding. 14

Accordingly, the longstanding evidentiary principle that “the public has 15

the right to every man’s evidence,” Nixon

, 418 U.S. at 709, is no bar to finding 16

First Amendment protection here. 1735 It is worth noting what we are not deciding. Burns has alleged that he 1

responded truthfully to the officers’ questions about what happened with the 2

can. Therefore, we need not, and do not, address whether Burns had a First 3

Amendment right to refuse to give truthful information about a past event, or in 4

an emergency. We also wish to underscore that the rights at issue here do not 5

implicate the widespread practice of conditioning pleas or other favorable 6

prosecutorial treatment on the provision of information. Under such 7

circumstances, the government confers a benefit on the potential informant, in 8

the form of relief from warranted criminal or other adverse action. By contrast, 9

we here are concerned with the distinct circumstances of an inmate punished 10

only in retaliation for refusing to provide information as it may come to the 11

inmate’s attention on an ongoing basis. 12

Again, the case before us is illustrative. Construing the evidence in Burns’s 13

favor, there is no indication that Burns himself was engaged in wrongful 14

conduct. Burns was given a choice between snitching or incurring an otherwise 15

underserved punishment. The distinction is of appreciable significance. It means 16

that the government may withdraw a benefit—by, for example, refusing to lessen 1736 charges where the would

‐ be informant declines to offer information—but may 1

not impose punishments at random. 2

Accordingly, for these reasons, we conclude that the refusal to provide 3

false information and to serve as a snitch on an ongoing basis are protected by 4

the First Amendment. 5

IV. Retaliation 6

Having concluded that Burns’s speech was protected by the First 7

Amendment, we proceed to the remaining portions of the retaliation inquiry: an 8

adverse action against the plaintiff, and a causal connection between the 9

protected speech and the adverse action. Dolan

, 794 F.3d at 294. Neither prong is 10

in serious doubt. 11

Burns was put in IPC for over six months, significantly impairing his 12

ability to move within the facility, socialize, and engage with prison 13

programming. And Burns gave detailed testimony about the threats he received 14

from defendants, to the effect that he must serve as a snitch and change the 15

explanation of how he received his injuries, or else remain in IPC. Portions of 16

Burns’s testimony also are corroborated by documentary evidence and the 17

testimony of prison officials. For example, the commissary officer testified that 1837 the can did in fact fall on Burns, and the IPC referral paperwork indicates that 1

defendants did not observe a cut on Burns’s person. 2

We have previously held that a retaliation claim may lie where an inmate 3

suffers the adverse action of “the filing of false misbehavior reports

... [and the] 4

sentence of three weeks in keeplock—[because] that would deter a prisoner of 5

ordinary firmness from vindicating his or her constitutional rights through the 6

grievance process and the courts.” Gill v. Pidlypchak

, 389 F.3d 379, 384 (2d Cir. 7

2004). Here, Burns has provided evidence that he was subjected to a pretextual 8

IPC hearing, and placed on this restricted status for over six months. Such an 9

injury more than suffices to show an adverse action. 10

Burns has also presented sufficient evidence of causation. His IPC status 11

hearing centered entirely on the questions related to injuries Burns suffered 12

when struck by the can. Burns also testified that defendants told him on more 13

than one occasion that he was referred to the IPC and left there because he 14

declined to serve as a snitch. Such testimony raises a question of material fact for 15

the jury. See Colon v. Coughlin

, 58 F.3d 865, 873 (2d Cir. 1995) (finding evidence of 16

causation sufficient to defeat summary judgment based on “alleged admission of 17

the existence of a retaliatory scheme” by guard). 1838 For these reasons, we conclude that Burns made a sufficient showing of 1

First Amendment retaliation. 2

V. Qualified Immunity 3

Qualified immunity protects government officials from liability for civil 4

damages unless a plaintiff demonstrates “(1) that the official violated a statutory 5

or constitutional right, and (2) that the right was clearly established at the time of 6

the challenged conduct.” McGowan v. United States

, 825 F.3d 118, 124 (2d Cir. 7

2016) (quoting Wood v. Moss

, 134 S.Ct. 2056, 2066

‐ 67 (2014)) (internal quotation 8

marks omitted). “Although we generally look to Supreme Court and Second 9

Circuit precedent existing at the time of the alleged violation to determine 10

whether the conduct violated a clearly established right, the absence of a decision 11

by this Court or the Supreme Court directly addressing the right at issue will not 12

preclude a finding that the law was clearly established so long as preexisting law 13

clearly foreshadows a particular ruling on the issue.” Garcia v. Does

, 779 F.3d 84, 14

92 (2d Cir. 2015) (quoting Okin v. Vill. of Cornwall–on–Hudson Police Dep’t

, 577 15

F.3d 415, 433 (2d Cir. 2009); Tellier v. Fields

, 280 F.3d 69, 84 (2d Cir. 2000)) 16

(internal punctuation omitted). 1739 On the facts presented here, we conclude that the defendants are entitled 1

to qualified immunity. 4 Jackler was not decided until late 2011, well after Burns 2

was released from IPC. And we have not previously held that the First 3

Amendment protects the right not to snitch. Nor do we believe that prior 4

decisions clearly foreshadowed our decision today. By the time of the events in 5

question, we had issued one summary order noting the possibility of a right not 6

to serve as a prison informant. Allah v. Juchenwioz

, 176 F. App’x 187, 189 (2d Cir. 7

2006) (summary order). However, in that case, we explicitly noted that we did 8

“not address whether

... an inmate has a constitutional right not to become an 9

informant.” Id. Further, neither the Supreme Court nor any other circuit court 10

has yet to decide whether a prisoner holds a right not to serve as an informant. 11

Accordingly, we conclude that the defendants are entitled to qualified immunity. 12

13

14

4 We acknowledge that defendants did not raise the defense of qualified

immunity in the district court. Although we do not generally consider a claim

raised for the first time on appeal, we can exercise our discretion to do so where,

as here, “the argument presents a question of law and there is no need for

additional fact

‐ finding.” Sniado v. Bank Austria AG

, 378 F.3d 210, 213 (2d Cir.

2004).40 CONCLUSION 1

We hold that the First Amendment protects a prisoner’s right not to serve 2

as an informant, as well as the right to refuse to provide false information to 3

prison officials. Nonetheless, due to the novel nature of the legal questions before 4

us, we conclude that defendants are entitled to qualified immunity. Accordingly, 5

we AFFIRM the judgment of the district court. Each side to bear its own costs. 6

7

8

9

10