Riley v. Kurtz’s Empirical Analysis

Citation profile

2 federal appellate ·

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 7 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “While I can understand courts’ concerns about the rising tide of prisoner litigation consuming enormous judicial and state governmental resources, I fear that we do no good service to respect and allegiance to the rule of law in our society if we devise a double standard of constitutional law for prisoners and for free citizens unless the different standard is justified by “legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 , 94 S.Ct. 2800, 2804 , 41 L.Ed.2d 495 (1974). For reasons noted below, the constitutional analysis of Cole and certain of its progeny are fundamentally in conflict with the constitutional analysis of Graham [v. Connor, 490 U.S. 386 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989) ], 8 and no legitimate penological objective justifies this difference. I believe the analysis can and should be brought into harmony, and frivolous and de minimis prisoners’ litigation can be ended by the courts in ways that are consistent with both fairness and efficiency, [n. 5] [n. 5] Certain means of “retaliation” may be so de minimis as not to inhibit or punish an inmate’s rights of free speech. Many verbal responses by officials of resentment or even ridicule would fall into this safe harbor of permitted response. Borrowing from Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. Employee-Officer John, # 1765 Badge Number v. Johnson, 414 U.S. 1033 , 94 S.Ct. 462 , 38 L.Ed.2d 324 (1977) [(1973)], Graham v. Connor, ”

   1 later decision quote this exact passage · from the majority
   e.g. Riley v. Coutu

2. “In light of the more recent Supreme Court decision in Graham v. Connor, ... I am confident that the Sixth Circuit in another case involving a prison guard’s intentional infringement of an inmate’s First Amendment rights by some retaliatory act or threats would, like Newsom [v. Norris, 888 F.2d 371, 376-77 (6th Cir.1989) ], allow the finding of a constitutional tort without the need for a separate instruction, in a jury trial, or a separate finding, in a bench trial, that this behavior also either “shocks the conscience” or is an “egregious abuse of governmental power.””

   1 later decision quote this exact passage · from the majority
   e.g. Riley v. Coutu

3. “it is clearly established that prison officials cannot impose or threaten imposition of significant harm or risk of harm on a prisoner in retaliation for that prisoner’s exercise of a First Amendment right, whether the inmate seeks a redress of grievances by filing a court action, an official grievance, or even an informal complaint.”

   1 later decision quote this exact passage · from the majority
   e.g. 287 F. Supp. 2d 477 - Scott v. Gardner