Bacon v. Phelps

Decision Date08 June 2020
Docket NumberDocket No. 18-3377,August Term 2019
Citation961 F.3d 533
Parties Dwayne BACON, Plaintiff-Appellant, v. PHELPS, FKA Phillips, Defendant-Appellee, Mr. Langford, Warden, FCI Ray Brook, Mr. P. Shipman, S. I. S. Lieutenant, FCI Ray Brook, Defendants.
CourtU.S. Court of Appeals — Second Circuit

Dwayne Bacon, pro se, Welch, WV.

Karen Folster Lesperance, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Albany, NY, in support of Phelps, FKA Phillips.

Before: Katzmann, Chief Judge, Calabresi, and Lohier, Circuit Judges.


Dwayne Bacon is a prisoner at Federal Correctional Institution in Ray Brook, New York ("FCI Ray Brook"). He alleges that after he wrote a letter to his sister from prison stating that he "wanted" a woman—whom officials understood to refer to a particular correctional officer—he was retaliated against by being placed in the prison's Special Housing Unit ("SHU"), and ultimately spent 89 days in isolated confinement for an "improper purpose." App'x 59. Bacon brought this suit under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), asserting First Amendment retaliation and procedural due process claims against two correctional officers: Captain Phelps and S. I. S. Lieutenant P. Shipman. The district court dismissed Bacon's First Amendment claim because the court construed his speech to be a sexual threat, and therefore not protected. The court concluded that Bacon was disciplined for making such a threat rather than for writing his letter. It also ruled that the defendants were entitled to qualified immunity because they had not violated Bacon's constitutional rights.

We hold that officers violated Bacon's constitutional rights by disciplining him for speech that, in the medium used (correspondence to a third party outside the prison), was not threatening and did not implicate security concerns. But because we also conclude the defendants were entitled to qualified immunity, we affirm the judgment of the district court.

A. Factual History

Bacon alleges that on March 6, 2015, he was summoned from his cell to the office of S. I. S. Lieutenant P. Shipman as part of an investigation into a letter Bacon wrote to his sister. The letter stated, "there is only one Black Woman here. I believe she is an Indian. She is very beautiful and healthy. I do want her but I want a few other Women as well." In his interview with Shipman, Bacon admitted that he was referring to a correctional officer named Officer Ferland. The same day, Shipman placed Bacon in disciplinary segregation in the Special Housing Unit ("SHU").

On March 19, 2015, Bacon received an incident report issued by Shipman that charged him with violating Prohibited Act Code 206, "making sexual proposals or threats to another." App'x 18. The report acknowledged that Bacon "did not directly" make any sexual statements to Officer Ferland, but concluded that he "still made an indirect sexual threat toward the safety of Officer Ferland."

At a disciplinary hearing on March 23, 2015, Bacon admitted to writing the letter but maintained that it was not a sexual proposal or threat toward the officer. He explained that it was merely "how he and his sister speak to each other to make them laugh." The hearing officer decided that Bacon was guilty of the act as charged in the incident report. Specifically, the hearing officer indicated that he considered Bacon's contention that he and his sister would use "sexual overtone[s] to make a point or communicate," but concluded that "your statement to your sister can be perceived as a threat toward another person, in this case a female staff member." The hearing officer's report then stated that "[s]exual statements or communicating a sexual desire about [a] staff member is inappropriate language that can be considered a threat." Bacon was sentenced to thirty days in the SHU, 90 days’ loss of phone and commissary privileges, and 27 days’ loss of good time.1

Bacon appealed the hearing officer's decision, arguing that the statement in the letter to his sister was not a sexual proposal nor was it "directly or indirectly" a threat. The regional director issued a response on May 5, 2015, noting that "[a] review of [Bacon's] appeal revealed questions concerning the disciplinary process" and remanding the case for further review. On May 14, 2015, while awaiting information from the prison's review, Bacon was transferred to United States Penitentiary Canaan, where he remained for 20 days before being transferred to FCI McKean.

On July 22, 2015, the regional director reversed the disciplinary sanctions against Bacon and expunged them from his record after determining that "[a] thorough review of the record revealed questions concerning the evidence relied upon."

B. Procedural History

Bacon filed a pro se Second Amended Complaint alleging, among other things, that in retaliation for writing a letter and in violation of his First Amendment right to free speech, he was placed in isolated confinement for a total of 89 days. Specifically, he argued that Shipman issued a "false misbehavior report" and placed him in the SHU in retaliation for the letter Bacon wrote to his sister. App'x 57. He added that Phelps threatened him by telling him he would receive a "shot" (an incident report) and a disciplinary transfer as a result of writing the letter. App'x 56. Bacon contended that Phelps ignored the orders of the regional director and proceeded to have Bacon transferred to a different facility, again in retaliation for exercising his rights under the First Amendment.

Defendant Shipman filed a motion to dismiss the Second Amended Complaint for failure to state a claim.2 He argued, among other things, that "an inmate in a federal prison does not have a First Amendment right to state his sexual desire for a female officer charged with maintaining security," and that, in any event, he (Shipman) was entitled to qualified immunity.3 App'x 66.

Magistrate Judge Hummel recommended that Shipman's dismissal motion be granted. The magistrate judge observed that the conduct for which Bacon was disciplined "was not the fact that he wrote a letter, but that the letter contained what was perceived as a sexual threat against a prison employee," and that such threats do not constitute protected speech under the First Amendment. App'x 87. The magistrate judge further reasoned that even if the letter contained speech protected by the First Amendment, the prison had a "legitimate penological interest in prohibiting such conduct, as permitting the use of sexual language or discussion of sexual desires relating to a prison employee could pose a risk to that employee or others." App'x 88. The magistrate judge concluded that Bacon's speech was not protected under the First Amendment, and as a result, his constitutional claim for retaliation failed. The magistrate judge also held that Shipman was entitled to qualified immunity because Bacon failed to show that Shipman violated a constitutional right.4

The district court adopted the magistrate judge's Report and Recommendation in full and granted Shipman's motion to dismiss on September 21, 2017.5 The court directed Phelps to contact the court to set a briefing schedule for the filing of dispositive motions on his own behalf.

Phelps filed a motion to dismiss on September 22, 2017, arguing that Bacon's Second Amended Complaint failed to state a claim for a violation of his First and Fourteenth Amendment rights, and also failed to allege that Phelps was personally involved in any constitutional violation. Phelps further asserted that he was entitled to qualified immunity.

Bacon opposed the motion by repeating his First Amendment claim and asserting that the defendants disciplined him by harassing him and placing him in isolated confinement in contravention of direct orders. Bacon also argued that the comments in his letter referred not to Officer Ferland but instead to women he met on the "" internet site.

Magistrate Judge Hummel issued a second Report and Recommendation recommending that Phelps's motion to dismiss be granted. The magistrate judge again observed that "plaintiff was not disciplined for writing a letter; instead, he was disciplined because the letter contained language perceived as a sexual threat against a prison employee." App'x 137 (internal quotation marks omitted). The magistrate judge therefore concluded that "the facts set forth in plaintiff's second amended complaint do not plausibly suggest that plaintiff's sexual comments regarding a female prison guard constitute protected speech under the First Amendment." App'x 138.

In response to Bacon's argument that the letter referred to women he met on, Magistrate Judge Hummel noted that Bacon "does not have a constitutionally protected right to use inappropriate, disrespectful, and derogatory language." App'x 139 (internal quotations and alteration omitted). The magistrate judge observed that "[i]nsofar as plaintiff suggests that Capt. Phelps threatened that plaintiff would receive an incident report and would be subject to a disciplinary transfer because of the letter, verbal harassment or threats are generally not considered adverse action for the purpose of a First Amendment retaliation claim." App'x 140. Finally, because Bacon could not "establish[ ] a constitutional violation to satisfy the first prong of the qualified immunity test," the magistrate judge concluded that Phelps was entitled to qualified immunity.6 The district court adopted the second Report and Recommendation and granted Phelps's motion to dismiss on August 30, 2018.

In a letter docketed on October 12, 2018, Bacon informed the district court that he had been transferred to another correctional institution and that he had sent a notice of appeal on September...

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