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Ex-prison guard's retaliation suit gets green light from federal appeals panel

By David Hudson
The Freedom Forum Online

Officials at the Arkansas Department of Corrections who allegedly retaliated against a former guard after he gave unfavorable testimony in a lawsuit can be held liable for violating the guard's First Amendment rights, a federal appeals court panel has ruled.

Paul Hudson, who used to work at a maximum security ADC facility in Tucker, contends in a federal lawsuit that several ADC officials retaliated against him shortly after he testified favorably on behalf of a former co-worker in a lawsuit against the department in September 1997.

Hudson alleged in his April 1998 lawsuit that as a result of his testimony he was investigated twice by internal affairs, denied a promotion and denied accrued vacation time after testifying.

The defendants countered that these actions were unrelated to Hudson's testimony. They also argued that they were entitled to qualified immunity because they did not violate any clearly established constitutional rights.

After a federal district court refused to dismiss Hudson's claims and to grant the defendants qualified immunity in October 1999, the defendants appealed to the 8th U.S. Circuit Court of Appeals.

On Sept. 6, a three-judge panel of the 8th Circuit unanimously affirmed the lower court with respect to most of the defendants in Hudson v. Norris

The panel noted that all of the alleged adverse actions — internal affairs investigations and denial of vacation time — occurred within four months of Hudson's testimony.

The panel described this "temporal proximity" as "significant."

"The large number of adverse actions that occurred hard on the heels of the protected activity in this case, particularly when juxtaposed with Mr. Hudson's previously strong employment record, is significant evidence that what happened here was more than just coincidence," the panel wrote.

The panel also noted that some of the defendants' reasons for taking adverse actions against Hudson were "unfounded."

The panel also rejected most of the defendants' claims for qualified immunity, citing prior 8th Circuit case law establishing that "no reasonable officer could believe that retaliating against an employee for exercising free speech rights, including the right to testify on a matter of public concern such as prison administration, was permissible."

The case now goes back to the district court for further proceedings.

Silas Brewer Jr., Hudson's attorney, said that "the evidence of retaliation in this case is very strong."

Brewer said he was pleased that he would have the chance to prove the allegations in the complaint at trial.

Calls to the state attorney general's office were not returned.


Federal appeals panel: State agencies can be liable for job retaliation

Judges tell lower court to reconsider case of three outspoken professors who claim Indiana school gave them low pay raises. 09.26.00

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