In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1551

JIMMY D. BRIDGES,

Plaintiff-Appellant,

v.

TIM GILBERT, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 06-C-544-S—John C. Shabaz, Judge.

ARGUED MAY 6, 2008—DECIDED MARCH 4, 2009

Before EASTERBROOK, Chief Judge, and WOOD and

TINDER, Circuit Judges.

TINDER, Circuit Judge. Jimmy Bridges, an inmate at the

Wisconsin Secure Program Facility, witnessed events

leading to the death of a fellow inmate. After he assisted

the inmate’s mother by providing an affidavit in a wrongful death lawsuit against prison officials, Bridges

perceived that certain prison officials and guards (to

whom we refer collectively as “Defendants”) had begun to

harass him. He filed a pro se § 1983 action alleging that
2 No. 07-1551

the Defendants retaliated against him for exercising

his First Amendment rights and prevented him from

petitioning the government for redress of grievances.

The district court dismissed the complaint for failure to

state a claim.

I. Background

Because this appeal is taken from the district court’s

dismissal of the complaint for failure to state a claim, we

consider as true the facts alleged in the complaint. Windy

City Metal Fabricators & Supply, Inc. v. CIT Technical Fin.

Servs., Inc., 536 F.3d 663, 666 (7th Cir. 2008). Bridges was

housed in the Wisconsin Secure Program Facility in a

cell adjacent to inmate Donnie Powe. On the night of

March 14, 2003, Bridges yelled through a vent to greet

Powe. Powe complained to Bridges that his drinking cup

contained a terrible smell, and he had been vomiting. A

nurse brought Powe some Tylenol and Tums. The next

morning, Bridges called through the vent again to check

on Powe. Powe responded in a weak voice that he was

really sick, his body was hurting all over, and he could

not eat. Later, a correctional officer asked Powe whether

he could hand his meal tray to the officer, but Powe did

not respond. Several different officers repeated the question over the next few hours, but Powe never answered.

The officers eventually called another nurse to check on

Powe. Around the same time, other correctional officers

also came to Powe’s cell, and Powe told them he was in

terrible pain and could not move. A group of at least

four officers threatened to “suit up” on him, i.e., to beat
No. 07-1551 3

him, for not responding. About 45 minutes later, prison

staff extracted Powe from his cell in a restraint chair and

took him to be monitored in the Health Services Unit.

Powe died the following day.

Powe’s mother Eunice brought a wrongful death suit

against several prison employees, and her attorneys

interviewed Bridges in March 2005 as a witness to the care

Powe received while in his cell. Bridges provided an

affidavit and agreed to testify if the case went to trial. He

was informed that his affidavit had been used by the

attorneys in a summary judgment response filed in

April 2005, and later he learned that the parties had

reached a settlement agreement.

Bridges believes that Defendants began a campaign

of harassment against him in retaliation for his participation in the Powe lawsuit. From March to December 2005,

certain Defendants caused his incoming and outgoing

mail to be delayed. One Defendant often kicked his

cell door, turned his cell light off and on, and opened

his cell trap and slammed it shut to startle him when he

was sleeping. He complained to her in November 2005,

and in response, she filed an unjustified disciplinary

charge against him. Another Defendant upgraded that

unjustified charge to a “major offense,” indicating that

his conduct created a risk of serious disruption at the

prison. Bridges was later cleared of any wrongdoing in

connection with the disciplinary charge.

Bridges filed several grievances in response to these

incidents, and he believes the retaliation continued through

improper treatment of his grievances. A few examples—
4 No. 07-1551

28 U.S.C. § 1915A requires a district court to review a com- 1

plaint in a civil action in which a prisoner seeks redress from

a governmental entity or officer or employee of a governmental entity and dismiss the complaint (or a portion thereof)

if the complaint is frivolous, is malicious, or fails to state a

claim upon which relief may be granted or seeks monetary

relief from a defendant who is immune from such relief.

Defendants found technical reasons to repeatedly reject his

grievances, such as alleging too many issues in a single

grievance or not alleging enough facts to support the

issues; Defendants falsely stated that his grievance

appeal had not been filed within the required time

period and dismissed it; and Defendants failed to

perform investigations on his grievances or provided

misleading information in their responses.

On September 22, 2006, Bridges filed a pro se § 1983

action with the district court, claiming that the

Defendants retaliated against him for exercising his First

Amendment rights to free speech and to petition for

redress of grievances, and also prevented him from

filing grievances. The district court screened the complaint under 28 U.S.C. § 1915A and dismissed the

claims against five Defendants because Bridges had

not alleged facts to support claims against them. The 1

remaining nine Defendants filed a motion to dismiss

under Rule 12(b)(6) for failure to state a claim and for

Bridges’s failure to exhaust his administrative remedies

under the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(a). Citing Brookins v. Kolb, 990 F.2d 308 (7th Cir.

1993), the district court concluded that Bridges did not
No. 07-1551 5

state a claim because he did not engage in protected

First Amendment activity. He filed an affidavit in a

wrongful death lawsuit that was personal to Powe—which

did not rise to the level of a public concern so as to constitute protected conduct. Because the court concluded

that he did not engage in protected activity, the court

declined to address whether Bridges had exhausted

his administrative remedies. Bridges appeals from the

Rule 12(b)(6) ruling but does not challenge the dismissal

of five Defendants under § 1915A.

II. Discussion

We review a district court’s grant of a motion to

dismiss for failure to state a claim de novo. St. John’s

United Church of Christ v. City of Chicago, 502 F.3d 616, 625

(7th Cir. 2007). To satisfy the notice-pleading standard, a

complaint must provide a “short and plain statement of

the claim showing that the pleader is entitled to relief,”

which is sufficient to provide the defendant with “fair

notice” of the claim and its basis. Erickson v. Pardus, 127

S. Ct. 2197, 2200 (2007) (per curiam) (citing Bell Atlantic

Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007)); Fed. R. Civ.

P. 8(a)(2). The complaint “must actually suggest that the

plaintiff has a right to relief, by providing allegations

that raise a right to relief above the speculative level.”

Windy City, 536 F.3d at 668 (citing Tamayo v. Blagojevich,

526 F.3d 1074, 1081 (7th Cir. 2008)). However, we

construe pro se complaints liberally and hold them to a

less stringent standard than formal pleadings drafted by

lawyers. Erickson, 127 S. Ct. at 2200 (citation omitted);

Obriecht v. Raemisch, 517 F.3d 489, 492 n.2 (7th Cir. 2008).
6 No. 07-1551

A. Bridges’s Free Speech Claim

To prevail on a First Amendment retaliation claim,

Bridges must ultimately show 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) the First Amendment

activity was “at least a motivating factor” in the Defendants’ decision to take the retaliatory action. Woodruff v.

Mason, 542 F.3d 545, 551 (7th Cir. 2008) (quoting Massey v.

Johnson, 457 F.3d 711, 716 (7th Cir. 2006)). Bridges’s complaint alleged that Defendants retaliated against him

for participating in the Powe lawsuit. The district court

determined that Bridges’s complaint failed to state a

claim because his allegations, taken as true, would not

satisfy the first element, that he had engaged in activity

protected by the First Amendment. In reaching this

conclusion, the district court relied on the free speech

discussion from our decision in Brookins.

In Brookins, a prison inmate filed a § 1983 complaint

claiming that prison officials had retaliated against him

by removing him from his position co-chairing a prisonapproved group called the Paralegal Base Committee

(which assisted inmates with legal research and

preparing legal documents) and then transferring him to

another facility. The retaliation occurred after Brookins

wrote a letter, written on official Committee letterhead

and sent to various prison officials, requesting that all

security staff involved in filing negative conduct reports

against a certain inmate be given polygraph examinations prior to the inmate’s disciplinary hearing. He also
No. 07-1551 7

offered to pay for the exams from the funds of the Committee. Under the prison’s regulations, Brookins should

have requested permission from the Committee’s advisor

prior to sending the correspondence; he also should

have had the Committee’s advisor co-sign the request,

since it purported to authorize spending of Committee

funds. Brookins did neither. As a result, he was removed

from the Committee and transferred to another prison

shortly thereafter.

Brookins asserted a violation of his First Amendment

associational right to act on behalf of the other prisoners.

We explained that a prisoner’s constitutional rights,

particularly associational rights, are necessarily curtailed by imprisonment. Id. at 312-13. We concluded that

Brookins had not satisfied his burden on summary judgment to demonstrate that the prison officials, in reacting

to Brookins’s violation of the regulations, “exaggerated

their response to preserving the legitimate penological

objectives of the prison environment.” Id. at 313. Brookins

also claimed that his letter implicated his free speech

rights, but we rejected his argument because “he ha[d] not

demonstrated that the speech contained in his letter

rose to the level of protected speech. Brookins did not

write the letter to inform the prison officials about a

prison issue that was a matter of public issue or concern.” Id. For support, we cited to Justice Stevens’s concurring opinion in RAV v. City of St. Paul, Minn., 505

U.S. 377, 420-21 (1992) (Stevens, J., concurring) and its

discussion of the concept that the First Amendment is

defined by the content of the speech in question; for

example, “[s]peech about public officials or matters of
8 No. 07-1551

public concern receives greater protection than speech

about other topics.”

Since Brookins, we have discussed the “public concern”

standard in the context of prisoner speech on other occasions. In Sasnett v. Litscher, 197 F.3d 290, 293 (7th Cir. 1999),

we held that a regulation that permitted prisoners to

wear rosaries but not cross necklaces discriminated

against Protestants and violated the First Amendment.

The prisoners also brought a separate free speech claim

which we rejected because, although wearing a cross is

“in a sense expressive,” to bring the claim under the

free speech clause would “empty the free-exercise clause

of a distinctive meaning.” Id. at 292. The prisoners’ desire

to wear crosses was not done to convert other inmates

or make a public statement and so the free speech

claim failed by analogy to the Pickering-Connick “public

concern” line of cases. Id. (citing Pickering v. Bd. of Ed. of

Twp. High Sch. Dist. 205, 391 U.S. 563 (1968); Connick v.

Myers, 461 U.S. 138 (1983)).

In McElroy v. Lopac, 403 F.3d 855 (7th Cir. 2005) (per

curiam), a prisoner who lost his job in the prison’s sewing

shop asked whether he would receive “lay-in pay” while

awaiting transfer to the optical glass shop. Annoyed

by the inquiry, prison officials allegedly filed false disciplinary charges against McElroy and refused to reassign

him to the glass shop. We rejected McElroy’s claim of

First Amendment retaliation, concluding that his

inquiries about lay-in pay “were a matter of ‘purely

individual economic importance’ and not of public concern.” Id. at 858 (quoting Balton v. City of Milwaukee, 133

F.3d 1036, 1040 (7th Cir. 1998)).
No. 07-1551 9

Our most recent mention of Brookins’s public concern

standard was in Pearson v. Welborn, 471 F.3d 732 (7th Cir.

2006), in which a prison official, citing Brookins, argued

that complaints about the use of shackles in group

therapy and the denial of yard time were not protected

by the First Amendment. We rejected the official’s

reliance on Brookins because, even assuming that

Pearson’s speech was subject to a public concern test, his

complaints urging a change in prison policy met that

test. Id. at 740. Pearson did not, however, endorse

Brookins’s public concern requirement for prisoner

speech—the validity of that test was not an issue.

Bridges notes that the concept of a public concern test

for prisoner speech has caused considerable confusion in

the district courts of this circuit. See, e.g., Watkins v.

Kasper, 560 F. Supp. 2d 691, 702 (N.D. Ind. 2008) (“It is not

readily apparent how imposing the requirement that

prisoner speech be related to a matter of public concern

in order to state a First Amendment retaliation claim

serves to strike the appropriate balance between a prisoner’s speech interests and a prison’s penological interests. Nonetheless, there is Seventh Circuit case law suggesting that the public concern requirement that

was developed in the public employee context is

applicable in the prison context as well.”). At Bridges’s

urging, we take up the matter now.

“[F]ederal courts must take cognizance of the valid

constitutional claims of prison inmates.” Turner v. Safley,

482 U.S. 78, 84 (1987). Like students who do not shed

their free speech rights at the schoolhouse gates, Tinker
10 No. 07-1551

v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506

(1969), neither do prison walls “form a barrier separating

prison inmates from the protections of the Constitution.”

Turner, 482 U.S. at 84. However, “[l]awful incarceration

brings about the necessary withdrawal or limitation of

many privileges and rights, a retraction justified by the

considerations underlying our penal system.” Pell v.

Procunier, 417 U.S. 817, 822 (1974) (quoting Price v. Johnston,

334 U.S. 266, 285 (1948)).

The Supreme Court has addressed the scope of prisoners’ First Amendment rights on several occasions. In Pell,

journalists and prison inmates challenged a

prison regulation preventing face-to-face interviews

between the media and individual prisoners. The Court

noted that “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.” Id. at 822. Legitimate penological objectives include crime deterrence, prisoner rehabilitation, and internal prison security. Id. at 822-23. If

prison officials have identified an institutional need that

a regulation helps to solve, that decision is “peculiarly

within the province and professional expertise of corrections officials, and, in the absence of substantial evidence

in the record to indicate that the officials have exaggerated their response to these considerations, courts

should ordinarily defer to their expert judgment in such

matters.” Id. at 827. With respect to the regulation prohibiting face-to-face interviews, “institutional considerations,

such as security and related administrative problems, as

well as the accepted and legitimate policy objectives of the
No. 07-1551 11

corrections system itself, require that some limitation be

placed on such visitations. So long as reasonable and

effective means of communication remain open and no

discrimination in terms of content is involved, . . . in

drawing such lines, ‘prison officials must be accorded

latitude.’ ” Id. at 826 (quoting Cruz v. Beto, 405 U.S. 319,

321 (1972)). Accordingly, the Court upheld the regulation. Id. at 828.

In Turner, the Supreme Court considered regulations

relating to inmate marriages and correspondence

between inmates at different institutions. After a discussion of previous decisions on prisoners’ free speech

rights, the Court crystalized the test to be used: “when a

prison regulation impinges on inmates’ constitutional

rights, the regulation is valid if it is reasonably related

to legitimate penological interests.” 482 U.S. at 89. Several

factors are relevant in reaching a determination, such as

whether there is a connection between the regulation

and a valid and neutral government interest; whether

there are alternative means of exercising the constitutional right; and the impact that accommodation of the

asserted right will have on guards, inmates, and the

allocation of prison resources. Id. at 89-90. The court

concluded that the restriction on inmate correspondence

with inmates in other facilities was reasonably related to

legitimate penological interests, but the marriage restriction was not. Id. at 91, 97.

In Shaw v. Murphy, 532 U.S. 223, 228-29 (2001), the

Supreme Court rejected the notion that inmate-to-inmate

correspondence that contained legal advice enhanced
12 No. 07-1551

the protections otherwise available under Turner, a case

that “adopted a unitary, deferential standard for reviewing prisoners’ constitutional claims.” The Court

noted that “[t]o increase the constitutional protection

based upon the content of a communication first requires

an assessment of the value of that content. But the

Turner test, by its terms, simply does not accommodate

valuations of content.” Id. at 230.

Pell, Turner, and Shaw dealt with the constitutionality of

prison regulations that implicated prisoners’ First Amendment rights. See also Thornburgh v. Abbott, 490 U.S. 401

(1989) (considering regulations on prisoners’ receipt of

publications); Jones v. N. C. Prisoners’ Labor Union, Inc., 433

U.S. 119 (1977) (considering regulations relating to prisoners’ unions). The cases did not explicitly mandate—nor

did they exclude—the Turner test for claims of unconstitutional retaliation for the exercise of free speech. The

Supreme Court has, however, developed a standard for

assessing unconstitutional retaliation in another context—the public employee setting.

In Pickering, a public school teacher was dismissed from

his position after writing a letter containing some erroneous statements, as well as criticism of the school board’s

past handling of revenue-raising proposals. The letter

was published in a local newspaper. The Court described

the significant public interest in citizens having “free and

unhindered debate on matters of public importance,”

Pickering, 391 U.S. at 573, which must be balanced with

the State’s interest as an employer in “promoting the

efficiency of the public services it performs through its
No. 07-1551 13

employees,” id. at 568. The case did not present a situation

in which the teacher’s speech interfered with his performance of his duties as a teacher or the operation of the

school generally. Id. at 572-73. Accordingly, the Court

held that “absent proof of false statements knowingly or

recklessly made by him, a teacher’s exercise of his right

to speak on issues of public importance may not furnish

the basis for his dismissal from public employment.” Id.

at 574.

In Connick, an assistant district attorney distributed a

questionnaire to other staff members about various

office policies and attitudes in her department. Her

research into the opinions of her co-workers was

motivated by her objection to being transferred to work

in another criminal court, but she was terminated when

her supervisors learned of the questionnaire. The Court

added a nuance to the Pickering test, holding that “when

a public employee speaks not as a citizen upon matters

of public concern, but instead as an employee upon

matters only of personal interest, absent the most unusual

circumstances, a federal court is not the appropriate

forum in which to review the wisdom of a personnel

decision taken by a public agency allegedly in reaction

to the employee’s behavior.” Connick, 461 U.S. at 147.

Because the district attorney’s speech was not intended to

inform the public that her office was not fulfilling its

responsibilities or to disclose potential wrongdoing, her

speech was a matter of her own personal interest and

did not constitute protected speech. Id. at 148.

In Garcetti v. Ceballos, 547 U.S. 410 (2006), a deputy

district attorney complained that he had suffered retalia-
14 No. 07-1551

tory actions at his job after he spoke to his supervisors

and wrote memoranda about an affidavit used in obtaining a warrant in which he felt there were misrepresentations; he also testified for the defense as to his observations about the affidavit. The Court further clarified the

Pickering-Connick standard by differentiating between

speech made pursuant to the employee’s official duties

and speech made as a citizen. Id. at 421. “That consideration—the fact that [the employee] spoke as a prosecutor

fulfilling a responsibility to advise his supervisor

about how best to proceed with a pending case—distinguishes [this] case from those in which the First Amendment provides protection against discipline.” Id.

With these cases in mind, we now turn to whether the

public concern test should be applied in the context of

prisoner speech. The public concern inquiry was created

to maintain the delicate balance between a citizen’s right

to speak (and the public interest in having thoughtful

debate) and the employer’s need to effectively provide

government services. The Supreme Court explained

the employer’s interest in Garcetti:

When a citizen enters government service, the

citizen by necessity must accept certain limitations on his or her freedom. Government employers, like private employers, need a significant

degree of control over their employees’ words and

actions; without it, there would be little chance for

the efficient provision of public services. Public

employees, moreover, often occupy trusted positions in society. When they speak out, they can
No. 07-1551 15

express views that contravene governmental

policies or impair the proper performance of

governmental functions.

Id. at 418-19 (internal citations omitted). Prisons officials

also have a significant interest in operating effectively, but

the concerns are of a very different nature. The legitimate

penological objectives test was created to preserve some

free speech rights for prisoners in a restrictive and challenging environment where prison officials must be

focused on crime deterrence, prisoner rehabilitation, and

internal prison security. And, obviously, a citizen has the

choice to enter into public employment, while imprisonment is not voluntary. This is not to say that prisoners

have greater free speech rights than public employees. A

prisoner’s speech can be circumscribed in many ways

that a public employee’s speech cannot, and the two

tests for assessing protected speech account for those

differences. The public employee cases distinguish between speech made as a citizen and speech made as an

employee, but to draw a corollary in the prison context

would be to remove protection from nearly everything a

prisoner says. Shut off from the outside world, the prisoner’s speech would nearly always be speech made “as a

prisoner” rather than “as a citizen.” To further limit

protection to matters of public concern would seem to

restrict prisoners’ constitutional rights far more than

is “justified by the considerations underlying our penal

system.” Pell, 417 U.S. at 822 (quoting Price, 334 U.S.

at 285).

After engaging in a thoughtful discussion of the history

of prisoner and public employee free speech cases, the
16 No. 07-1551

Sixth Circuit expressed doubt as to the propriety of using

a public concern standard for prisoners’ speech, Thaddeus-X

v. Blatter, 175 F.3d 378, 393 (6th Cir. 1999) (en banc),

although the court ultimately left the question undecided,

see Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008)

(“[W]hether the public-concern test determines the protection to be afforded a prisoner’s speech is an open

question in the Sixth Circuit.”). The Sixth Circuit’s doubt

was based upon the many differences between prisoners

and employees: “Given the distinctive rights of the two

types of plaintiffs, the separate interests of the two types

of government entities, and the dissimilar nature of the

relationship between the plaintiff and the government

in these two settings, any honest attempt to perform the

balancing prescribed by the Supreme Court in Pickering

cannot unhesitatingly import reasoning from the public

employment setting into the prison setting. . . . [C]ontext

matters.” Thaddeus-X, 175 F.3d at 393.

In Eichenlaub v. Township of Indiana, 385 F.3d 274 (3d Cir.

2004), the Third Circuit considered a case in which plaintiffs, who were private citizens, brought a claim of retaliation against the government; the district court had

dismissed their claim because the speech was not a

matter of public concern. The Third Circuit drew an

analogy to prisoner speech:

[O]utside the employment context the First

Amendment forbids retaliation for speech even

about private matters. For example, we have

held that First Amendment claims may be based

on allegations that a prisoner’s complaint against
No. 07-1551 17

a guard caused retaliation. Realistically, these

kinds of complaints are often highly particularized

objections to alleged individual mistreatment.

We do not, however, impose a “public concern”

threshold.

Id. at 284 (citation omitted). See also Friedl v. City of New

York, 210 F.3d 79, 87 (2d Cir. 2000) (“[W]e reject the contention . . . that where the [prisoner] alleges retaliation

for protected speech in the form of a petition to the government, he must establish that the speech contained in

his petition to the government was a matter of public

concern.” (internal quotation marks omitted)).

Other courts have simply applied the Turner test without consideration of a public concern requirement.

For example, the Fifth Circuit applied the “legitimate

penological objectives” test without fanfare: “While we

deal here with [retaliation] rather than a [prison] regulation, the same standard is applicable to determine if the

prison authorities’ response to [plaintiff’s] writing is

constitutionally permitted.” Jackson v. Cain, 864 F.2d 1235,

1248 (5th Cir. 1989). See also Cornell v. Woods, 69 F.3d 1383,

1388 (8th Cir. 1995) (“[A prisoner’s] right to respond to

a prison investigator’s inquiries is not inconsistent with

a person’s status as a prisoner or with the legitimate

penological objectives of the corrections system.”).

While there are different “rung[s in] the hierarchy of

First Amendment values,” Carey v. Brown, 447 U.S. 455, 467

(1980), we conclude that a prisoner’s speech can be protected even when it does not involve a matter of public
18 No. 07-1551

Because this opinion disavows the public concern test used 2

in prior prisoner speech cases in this circuit, it has been circulated among all judges of this court in regular active service

under Circuit Rule 40(e). No judge favored a rehearing en banc.

This case does not address the continuing validity of cases like 3

McElroy, where we concluded that a prisoner-employee’s

(continued...)

concern. We will apply the Turner legitimate penological 2

interests test to determine whether Bridges has alleged

that he engaged in protected speech.

Bridges alleged that he engaged in protected speech in

the affidavit he filed in the lawsuit by Powe’s mother.

Providing an eyewitness account (or an aural account, as

in this case) of an incident where prison officials are

alleged to have mistreated an inmate who was gravely

ill (and later died) is not inconsistent with legitimate

penological interests. Prisons have an interest in keeping

the inmates as safe and secure as possible while imprisoned, and truthful speech that describes possible abuses

can actually be quite consistent with that objective.

Cf. Cornell, 69 F.3d at 1388 (“[T]ruthfully answering

questions concerning a misconduct investigation against

a correctional officer is undoubtedly quite consistent

with legitimate penological objectives.” (internal quotation marks omitted)). Bridges has therefore adequately

alleged, for purposes of surviving a motion to dismiss,

that he engaged in activity protected by the First Amendment. Woodruff, 542 F.3d at 551 (quoting Massey, 457 F.3d

at 716). Whether his claim is meritorious is a question

that can be explored in discovery and, if necessary, at trial.3
No. 07-1551 19

(...continued) 3

complaints about compensation were not matters of “public

concern” protected by the First Amendment. 403 F.3d at 858.

To the extent that a distinction can be made between speech as

an inmate and speech as a prisoner-employee, the public

concern standard may still have some application to prisoners’

free speech claims. Although we noted above that Garcetti’s

analysis of the competing interests of the public employer and

the public employee is generally inapplicable to the prison

context, perhaps similar concerns are present when prison

officials offer inmates voluntary employment in the provision

of prison services. The official interest in the “efficient provision” of those services, coupled with the benefits to the

prisoner from taking the job, may justify a public concern

limitation on the prisoner’s speech made as an employee.

Garcetti, 547 U.S. at 418. On the other hand, the degree of control

exercised by officials over all aspects of a prisoner’s life may

make any distinction between speech as an inmate and speech

as a prisoner-employee unworkable. Cf. id. at 418-19 (comparing

the free citizen’s dual roles as a public employee and a private

citizen). We need not decide in this case whether the public

concern standard ought to apply to a prisoner-employee’s

free speech claim because, in providing an affidavit in the

Powe lawsuit, Bridges was not speaking as a prisoner-employee.

We briefly turn to the other two elements of a First

Amendment retaliation claim, which were not addressed

by the district court—whether Bridges experienced an

adverse action that would likely deter First Amendment

activity in the future, and if the First Amendment

activity was “at least a motivating factor” in the Defendants’ decision to take the retaliatory action. Id. Bridges

alleged that he suffered retaliation through delays in his
20 No. 07-1551

incoming and outgoing mail; harassment by a guard

kicking his cell door, turning his cell light off and on, and

opening his cell trap and slamming it shut in order to

startle him when he was sleeping; unjustified disciplinary

charges; and improper dismissal of his grievances. Even

though some of these allegations would likely not be

actionable in and of themselves, if the acts were taken

in retaliation for the exercise of a constitutionally protected right, then they are actionable under § 1983. See

Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir. 1987) (“[A]n

act in retaliation for the exercise of a constitutionally

protected right is actionable under Section 1983 even if the

act, when taken for different reasons, would have been

proper.”); see also Higgason v. Farley, 83 F.3d 807, 810 (7th

Cir. 1996) (per curiam) (retaliatory transfer of a prisoner);

Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996) (retaliatory delay in transferring prisoner); Cornell, 69 F.3d at 1389

(retaliatory discipline).

Bridges’s complaint does not specifically allege that the

retaliatory activities would “deter a person of ordinary

firmness” from exercising First Amendment activity in

the future. Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).

But construing his pro se complaint liberally, Obriecht,

517 F.3d at 492 n.2, and accepting all of his allegations as

true, one “possible inference[]” of the complaint, Tamayo,

526 F.3d at 1081, is that the alleged harassment by numerous prison employees in a variety of ways over a period

of several months would deter a person of ordinary

firmness from exercising his First Amendment rights.

Again, whether Bridges’s allegations are in fact true or

whether the alleged harassment would actually deter a
No. 07-1551 21

person of ordinary firmness are not questions that we

address at the pleading stage.

Finally, Bridges alleges that the Defendants would not

have harassed him but for his participation in the Powe

lawsuit. That, too, is sufficient. Bridges has stated a

claim for free speech retaliation. Pl. Compl. ¶¶ 10-16, 25.

B. Bridges’s Access to the Courts and Petition for

Redress Claims

Bridges alleged three other claims in his complaint.

First, intertwined with his free speech claim, Bridges

claimed the Defendants retaliated against him for filing

an affidavit in the Powe lawsuit in violation of his constitutional right to access the courts. Second, he claimed

that one Defendant retaliated against him by filing an

unjustified disciplinary charge after he complained

about her harassment of him—and another Defendant

modified the charge to be more serious—in violation of

his right to petition the government for redress of grievances. Third, he claimed the Defendants improperly

denied and rejected his grievances, which violated his

right to petition the government for redress of grievances.

Though he specifically labeled paragraphs in his complaint with these claims and addressed them in his reply

to Defendants’ motion to dismiss, the district court dismissed the complaint without independent discussion of

these claims.

As with the free speech claim, to prevail in an access to

the courts or petition for redress of grievances retaliation

claim, Bridges must ultimately show that (1) he engaged
22 No. 07-1551

in activity protected by the First Amendment; (2) he

suffered a deprivation that would likely deter First

Amendment activity in the future; and (3) the First Amendment activity was “at least a motivating factor” in

the Defendants’ decision to take the retaliatory action.

Woodruff, 542 F.3d at 551 (quoting Massey, 457 F.3d at 716).

The First Amendment right to petition the government for redress of grievances includes the right of

access to the courts. Cal. Motor Transp. Co. v. Trucking

Unlimited, 404 U.S. 508, 510 (1972); Grossbaum v.

Indianapolis-Marion County Bldg. Auth., 100 F.3d 1287, 1294

n.5 (7th Cir. 1996). “[P]ersons in prison, like other individuals, have the right to petition the Government for

redress of grievances which, of course, includes ‘access

of prisoners to the courts for the purpose of presenting

their complaints.’ ” Cruz, 405 U.S. at 321 (quoting Johnson

v. Avery, 393 U.S. 483, 485 (1969)); cf. Woodruff, 542 F.3d

at 561 (Posner, J., concurring) (emphasizing that the

right to petition includes a reasonable right of access to the

courts). While the right of access to the courts requires

prison officials to provide prisoners with the necessary

tools “to attack their sentences, directly or collaterally,”

and “to challenge the conditions of their confinement,”

Lewis v. Casey, 518 U.S. 343, 355 (1996), it is not an abstract,

freestanding right to legal assistance, id. at 351. A prisoner

asserting a denial of access claim must show an “actual

injury” in the form of interference with a “nonfrivolous

legal claim.” Id. at 353. “In other words, the right of access

to the courts is tied to and limited by a prisoner’s right

to ‘vindication for a separate and distinct right to seek

judicial relief for some wrong.’ ” Lehn v. Holmes, 364
No. 07-1551 23

F.3d 862, 865 (7th Cir. 2004) (quoting Christopher v. Harbury,

536 U.S. 403, 415 (2002)).

Bridges has no “underlying claim” that implicates his

own right of access to the courts. Harbury, 536 U.S. at 415.

The only underlying claim in this case is the Powe wrongful death lawsuit, meaning that retaliation against

Bridges for providing an affidavit in that lawsuit could

only affect the access rights of Powe’s mother. But

Bridges cannot rely on another plaintiff’s injury in

support of his own denial of access claim. See Casey, 518

U.S. at 357-58 (concluding that the loss of nonfrivolous

legal claims by two individual prisoners did not establish

the requisite injury for an entire class of prisoners to

seek systemwide improvements in the prison’s legal

assistance program). Since Bridges has no “right to

judicial relief” distinct from Powe’s claim, Harbury, 536

U.S. at 415, his affidavit in the Powe litigation was not a

constitutionally protected exercise of his right to access

the courts.

We have in the past recognized situations where one

prisoner may have a First Amendment retaliation claim

based on the denial of another prisoner’s right of access

to the courts. In Higgason, a prisoner argued that he was

transferred to another prison facility after he filed his own

lawsuits and assisted other inmates with filing lawsuits.

We held that “[i]f a prisoner is transferred for exercising

his own right of access to the courts, or for assisting

others in exercising their right of access to the courts, he

has a claim under § 1983.” Higgason, 83 F.3d at 810. Importantly, however, Higgason was a “jailhouse lawyer,” id. at
24 No. 07-1551

811 n.3, and we have acknowledged that these advocates

have standing to assert their fellow inmates’ denial of

access claims, see Buise v. Hudkins, 584 F.2d 223, 227 (7th

Cir. 1978). Without that standing, prison officials could

simply transfer troublesome jailhouse lawyers and leave

the remaining inmates “without an alternate means of

access to the courts.” Id. at 228; see also Johnson v. Avery, 393

U.S. 483, 487 (1969) (invalidating a prison regulation

prohibiting habeas petitioners from obtaining the assistance of a jailhouse lawyer).

Unlike the services of a jailhouse lawyer, we do not

think that Bridges’s assistance as an affiant-witness was

“necessary to vindicate [Powe’s] right of access to the

courts.” Thaddeus-X, 175 F.3d at 395. That is especially true

since Powe’s mother has already obtained and used

Bridges’s affidavit in her lawsuit, suggesting that she

suffered no injury through the alleged retaliation against

Bridges. See Massey v. Helman, 196 F.3d 727, 740 (7th Cir.

1999) (commenting that a prison physician who gave a

deposition in a prisoner lawsuit could not show “that his

termination interfered with other prisoners’ access to the

courts by confining their ability to gather evidence in

support of their cases”). Accordingly, Bridges’s participation in the Powe litigation was not sufficiently connected to Powe’s rights to allow Bridges to assert a denial

of access claim. See id. at 739-40 (holding that the prison

physician lacked standing to raise the prisoners’ rights of

access to the courts). The district court properly

dismissed Bridges’s claim alleging retaliation for exercising his right to access the courts.
No. 07-1551 25

Moving to Bridges’s next claim, Bridges alleges that

one Defendant retaliated against him for exercising his

constitutional right to seek redress for the Defendant’s

harassment. Bridges contends that he communicated a

grievance to the government when he threatened the

Defendant that he was going to file a grievance against

her because it was inappropriate for her to kick his cell

door, turn his lights on and off, and slam his cell trap

while he was sleeping. Bridges cites Pearson, in which

we “decline[d] to hold that legitimate complaints lose

their protected status simply because they are spoken.

Nothing in the First Amendment itself suggests that the

right to petition for redress of grievances only attaches

when the petitioning takes a specific form.” Pearson, 471

F.3d at 741. But it seems implausible that a threat to file

a grievance would itself constitute a First Amendmentprotected grievance. Even if the threat were deemed

protected activity, Bridges’s allegations do not lead to

an inference that the retaliation would deter a person of

ordinary firmness from exercising First Amendment

activity in the future. Bridges alleges that the Defendant

filed an unjustified disciplinary charge, which another

Defendant upgraded to a “major offense.” The charge

was later dismissed. A single retaliatory disciplinary

charge that is later dismissed is insufficient to serve as

the basis of a § 1983 action. Cf. Bart, 677 F.2d at 625 (“A

tort to be actionable requires injury. It would trivialize

the First Amendment to hold that harassment

for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary

firmness from that exercise . . . .”). This claim was properly

dismissed. Pl. Compl. ¶¶ 17-20.
26 No. 07-1551

Bridges’s allegations may later become relevant, however, 4

because the Prison Litigation Reform Act requires that he

exhaust his available administrative remedies before he can

(continued...)

Bridges’s final claim is that the Defendants improperly

dismissed and rejected his attempts to file administrative

grievances. This is his only claim that does not arise

under a retaliation theory; he complains of a direct violation of his right to petition the government for redress

of grievances. He alleges that the Defendants used technicalities to repeatedly reject his grievances. For example,

they would claim that he had stated too many issues in

one grievance when Bridges was merely attempting to

explain the context of the grievance; then when he filed

another grievance, they would claim that he had not

given them enough background information. The rejected

grievances were “directly related to the claims stated in

[Bridges’s] complaint.” Pl. Compl. ¶ 21. He did not allege

that he was prevented from petitioning for redress of

any other grievances. Section 1983 is a tort statute, so

Bridges must have suffered a harm to have a cognizable

claim. Doe v. Welborn, 110 F.3d 520, 523 (7th Cir. 1997).

Because he is currently exercising his right to petition the

government for redress of grievances through this

lawsuit, he has not been harmed. See Antonelli v. Sheahan,

81 F.3d 1422, 1430 (7th Cir. 1996) (“[Plaintiff’s] invocation

of the judicial process indicates that the prison has not

infringed his First Amendment right to petition the

government for a redress of grievances.”). This claim was

also properly dismissed. Pl. Compl. ¶¶ 21-24.4
No. 07-1551 27

(...continued) 4

bring a § 1983 action. 42 U.S.C. § 1997e(a). If Bridges submitted grievances that did not comply with the prison’s procedural requirements, then the prison was entitled to reject those

grievances. And to file a claim, his administrative remedies

must have been properly exhausted. Woodford v. Ngo, 548 U.S. 81,

95 (2006) (“The benefits of exhaustion can be realized only if

the prison grievance system is given a fair opportunity to

consider the grievance. The prison grievance system will not

have such an opportunity unless the grievant complies with

the system’s critical procedural rules.”). Bridges alleges,

though, that his grievances met the procedural requirements

but were nevertheless denied. If the district court later determines that Bridges has not exhausted his administrative

remedies, the court may need to determine whether that failure

was attributable to the alleged denial of the grievance process.

3-4-09

III. Conclusion

Because Bridges stated a claim for free speech retaliation due to his filing of an affidavit in the Powe litigation,

Pl. Compl. ¶¶ 10-16, 25, we REVERSE the decision of the

district court in part. With respect to Bridges’s claims of

retaliation for access to the courts, retaliation for threatening to file a grievance, Pl. Compl. ¶¶ 17-20, and denial of

the grievance process, Pl. Compl. ¶¶ 21-24, 26, we

AFFIRM the district court’s dismissal.