A former Louisiana State Penitentiary at Angola inmate from Baton Rouge scored a partial victory Thursday in a federal appellate court ruling that turned on the issue of the free speech rights of prisoners.
The former Angola inmate claims he was removed from the Angola Prison Rodeo grounds in 2011 and sent to another prison for telling rodeo patrons he couldn’t charge less for crafts he was selling because of taxes imposed by then-Angola Warden Burl Cain.
In what a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans called a novel prisoner free-speech claim, the panel affirmed a Baton Rouge federal judge’s dismissal of Deputy Warden David Vannoy as a defendant in Carlwynn Turner’s lawsuit. However, it reversed the judge’s dismissal of Cain and Assistant Warden Leslie Dupont from the case.
The 5th Circuit panel sent the case back to U.S. District Judge James Brady to determine whether Turner’s speech was protected by the First Amendment. It may not be if Cain can cite a “legitimate penological reason” for restricting it, the panel said.
“I would hold that it is protected because there is no evidence of such a reason, nor could there be,” Circuit Judge Jacques Wiener Jr. wrote in a concurring opinion.
Wiener noted that Cain has denied transferring Turner from Angola because he spoke about the taxing of crafts.
The appellate court panel stressed that prison officials could not restrict Turner’s speech at the rodeo based on the prison’s grievance procedure.
Brady concluded in 2014 that the content of Turner’s speech amounted to a grievance directed at Angola officials. And because he spoke in a prison and as a prisoner, Brady wrote, the speech was unprotected if expressed outside the grievance procedures.
The 5th Circuit panel disagreed, saying Turner’s speech was not a grievance because it had nothing to do with his status as a prisoner.
“Turner made his remarks in an effort to explain that, because of the taxes, he could not reduce the price of his crafts,” Circuit Judge Edith Jones wrote for the panel. “Significantly, Turner was addressing the public, not a prison official or another prisoner.
“There is nothing to suggest that Turner’s remarks to the public had the potential for inciting violence, disturbing order in the prison, or creating security concerns,” she added. “He was there because prison officials had permitted him to engage in a public event attended by large numbers of the public on prison grounds.”
The 5th Circuit said Cain did impose taxes on crafts sold by inmates at the rodeo.
“According to Warden Cain himself, ‘taxes were raised for the following reasons: … 11% tax is used to rebuild, maintain, or add new (hobby craft facilities,) … 9% (Feliciana) Parish tax … 2-3% taxes were charged by credit card companies …’ ” the panel said in a footnote to its ruling.
Turner, 54, is seeking monetary damages. The 5th Circuit ordered Brady to appoint a lawyer to represent Turner, who has been representing himself.
Turner is serving a life sentence for the 1988 aggravated rape of a 13-year-old girl in an abandoned house in Spanish Town. The victim testified Turner threatened to slit her throat with a knife before raping her three times. She said Turner urinated on her legs and clothing afterward.
Turner’s lawsuit indicates he is now housed at David Wade Correctional Center in Homer.
The 5th Circuit said Brady did not err in determining that Turner could not prove a claim of retaliation against Vannoy and Dupont for his transfer, because that decision was Cain’s alone.
The panel, however, said Dupont must remain in the case because Turner sufficiently alleged that the assistant warden was involved in his removal from the rodeo grounds, which Turner contends constituted a retaliatory act for his remarks about Cain’s taxation.
“This was not a mere reassignment of prison jobs,” Jones wrote further for the panel. “It was the denial of Turner’s opportunity to sell his crafts, to profit from those sales, and to interact with members of the public. It also disrupted his longstanding record of good behavior at the LSP.”
Circuit Judge Stephen Higginson was the third member of the appeals court panel.
Cain, the former longtime Angola warden, resigned several months ago amid questions about some of his personal business dealings.
The 5th Circuit ruling in Turner’s case comes amid reports by The Advocate that Louisiana State Penitentiary inmate William Kissinger, who was corresponding via email with one of the newspaper’s reporters, has been moved from Angola to Elayn Hunt Correctional Center in St. Gabriel. Kissinger was critical of Cain in some of the emails.
Corrections officials told the newspaper this week that Kissinger was punished for being defiant and for “general prohibited behavior” over his correspondence with the paper.
But an internal Feb. 4 email sent to prison staffers said Kissinger was transferred “due to protection concerns.”
The 5th Circuit has held previously that inmates have a right to unfettered correspondence with the news media and others.