Bacon v. Phelps, No. 18-3377 (2d Cir. 2020)
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The First Amendment protects a prisoner's right to express non-threatening sexual desire in communications with a third party outside the prison. Plaintiff, a prisoner at FCI Ray Brook, filed suit under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 2 U.S. 388 (1971), asserting First Amendment retaliation and procedural due process claims against two correctional officers. Plaintiff alleged 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 spent 89 days in isolated confinement for an "improper purpose."
The Second Circuit held that the officers violated plaintiff'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. However, the court held that the officers were entitled to qualified immunity because it was not clearly established at the time plaintiff sent the letter that prison officials could not punish him for his statements in that correspondence.
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