By Aranda Stathers

When a person behind bars files a grievance or requests medical care, families and the public alike hope the system will respond fairly, as the Constitution requires. Too often, the opposite occurs. Transfers to distant prisons, sudden stints in solitary, or abrupt restrictions on calls and visits often follow close behind.^[1] To families, the pattern is plain: a person asserted basic rights, and the institution answered with punishment.

That is retaliation. It is not only cruel—it is unconstitutional and actionable.

Incarceration does not erase constitutional rights. Filing grievances and lawsuits is protected by the First Amendment,^[2] while requesting medical care or safer living conditions is safeguarded by the Eighth Amendment’s prohibition on cruel and unusual punishment.^[3] Retaliation against an incarcerated person for exercising either right is unlawful.^[4] However, enforcing those rights is no simple matter.

Courts require that retaliation claims meet a demanding legal test. To prevail, the incarcerated person generally must show:

1. The incarcerated person engaged in protected conduct.
2. The incarcerated person faced some adverse action serious enough to deter an ordinary person from exercising that right.
3. There was a causal relationship between the individual’s protected activity and the officials’ conduct.
4. The challenged action did not reasonably advance a legitimate correctional interest.

1. Protected Conduct

The law protects a wide range of conduct, including:

• Filing grievances through the prison system.
• Filing lawsuits or petitions in court.
• Communicating with lawyers, advocates, or the press.
• Verbally threatening to sue.
• Speaking out about unsafe or abusive conditions.
• Requesting necessary medical or mental health care.

Key point for families: The right to speak up does not depend on whether the system listens. Even if a grievance is ignored or dismissed, the filing itself is protected activity.

2. Adverse Action

Officials must have responded with punishment or restriction serious enough to deter an ordinary person from exercising their rights.^[5] Courts have recognized that retaliation can take many forms, including:

• Transfers to distant or higher-security facilities.^[6]
• Placement in solitary confinement or “segregation.”^[7]
• Loss of privileges, including phone calls, visitation, commissary, or recreation.^[8]
• False disciplinary write-ups for “insolence” or “disruption.”^[9]
• Denial of medical care or deliberate indifference to serious medical needs.^[10]
• Threats of harm to person or property.^[11]

Bottom Line: Retaliation isn’t limited to physical abuse. Even so-called “minor” punishments can qualify when it’s meant to silence your loved one for exercising their rights.

3. Causation

Often, the greatest challenge is proving the punishment resulted from protected conduct. Courts weigh both direct and circumstantial evidence, including:

• Timing: Punishment that closely follows a grievance or complaint.^[12]
• Patterns: Discipline or restrictions that reliably follow complaints.^[13]
• Direct statements: Threats or comments tied to protected conduct.^[14]
• Pretext: Shifting or inconsistent justifications from officials.^[15]
• Documentation: Grievances, disciplinary records, transfers, medical requests, evidence of a clean prior record, etc.
• Witnesses and comparisons: Corroborating accounts and examples showing your loved one was singled out for protected conduct.

Bottom Line: The clearer the timeline and supporting evidence, the weaker the prison’s excuses.

4. No Legitimate Correctional Goal

Prisons almost always defend retaliation claims by citing “safety,” “discipline,” or “administrative necessity.” Courts give administrators wide latitude, but evidence of motive can expose retaliation for what it is: unlawful punishment of protected conduct.

 

What Families Can Do Next

Families are often best positioned to help build the record. Every note, date, and copy of a grievance can later become crucial evidence.

1. Encourage Your Loved One to File Grievances

Federal law requires people in prison to “exhaust” the facility’s grievance process before filing suit. Without grievances, even strong claims may be dismissed. Urge your loved one to:

• File a grievance for every incident.
• Keep copies or records of every grievance and response.
• Follow appeal deadlines strictly.

Key point for families: Filing grievances can itself trigger retaliation. That, too, is unconstitutional and may form a separate basis for a claim. Document it carefully.

2. Document Everything

Documentation is critical. Be sure to track:

• Dates grievances are filed and responses (or non-responses) are received.
• Copies of grievances, appeals, and disciplinary tickets.
• Sudden transfers, solitary confinement placements, loss of privileges, etc.
• Threats or statements by officials suggesting retaliation.

3. Contact an Attorney Early

Do not shoulder this fight alone. An experienced attorney can:

• Review grievances to identify constitutional violations.
• Investigate patterns of abuse or neglect.
• Demand accountability and enforce your loved one’s rights through litigation.

If your loved one is being denied necessary medical care, placed in unsafe conditions, or punished for speaking up, contact us today. We can help protect their rights.

 

[1] See, e.g., Dean Mirshahi, Red Onion prisoners claim retaliation for refusal to sign ‘safety agreement’, VPM News (Apr. 1, 2025), https://www.vpm.org/news/2025-04-02/vadoc-red-onion-lawsuit-safety-agreement-mental-health-care-retaliation; Mohamed Ibrahim, Families say inmates who protested over drinking water at Stillwater prison are being retaliated against, MinnPost (Sept. 11, 2023), https://www.minnpost.com/public-safety/2023/09/families-say-inmates-who-protested-over-drinking-water-at-stillwater-prison-are-being-retaliated-against/; Jeremy Busby, Incarcerated journalist calls out ‘relentless’ retaliation by prison officials, Freedom of the Press Found. (Nov. 7, 2023), https://freedom.press/issues/guest-opinion-incarcerated-journalist-calls-out-relentless-retaliation-by-prison-officials/.

[2] Turner v. Safley, 482 U.S. 78, 84–85 (1987).

[3] Estelle v. Gamble, 429 U.S. 97, 103 (1976).

[4] Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).

[5] Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017).

[6] Pasley v. Conerly, 345 Fed. Appx. 981 (6th Cir. 2009).

[7] Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987).

[8] Allah v. Seiverling, 229 F.3d 220, 224–25 (3d Cir.2000).

[9] Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir.2002).

[10] Atkinson v. Taylor, 316 F.3d 257, 262–63 (3d Cir. 2003).

[11] Ford v. Palmer, 539 Fed. Appx. 5 (2d Cir. 2013).

[12] McCollum v. California Dep’t of Corr., 647 F.3d 870 (9th Cir. 2011).

[13] Holley v. Combs, 134 F.4th 142, 146 (4th Cir. 2025) (noting that a pattern of past conduct is indicative of imminent danger of harm).

[14] Shariff v. Poole, 689 F. Supp. 2d 470 (W.D.N.Y. 2010).

[15] McCollum, supra.