Appeal from the United States District Court for the Northern District of Indiana. No. S-76-117 - Robert A. Grant, Judge.
Castle, Senior Circuit Judge, Cummings and Pell, Circuit Judges. Pell, Circuit Judge, dissenting.
On June 24, 1976, Khalid Choudhry, a Pakistani resident alien, was terminated from his position as a correctional officer at the Indiana State Prison at Michigan City, Indiana, after making certain critical comments about the prison's administration to the press. About a week after his dismissal, Choudhry filed a verified 42 U.S.C. § 1983 complaint alleging that his dismissal by the defendant prison officials had unconstitutionally infringed upon his free speech rights secured to him under the First and Fourteenth Amendments.*fn1 Plaintiff sought damages as well as declaratory and injunctive relief. Along with his complaint, plaintiff filed a motion for a temporary restraining order commanding his reinstatement as a correctional officer at the prison. On July 19, 1976, after hearing evidence and argument on the question of whether the temporary restraining order should issue, the district court took the matter under advisement.*fn2 Two weeks later, the district judge entered an order with an accompanying Memorandum which denied plaintiff's motion for injunctive relief and which sua sponte decided that summary judgment be entered in favor of the defendants. This appeal resulted.
Once again we are confronted with
"one of those troublesome cases in which an appeal follows a disposition occurring by way of procedures amounting to something less than a full trial and which, upon consideration of the briefs, oral argument, and record, presents serious procedural questions in a record situation wherein further attention at the trial court level with rectification of any procedural errors conceivably could be followed by the same result as before in the litigation. Nevertheless, bearing in mind the words of Mr. Justice Frankfurter that fairness of procedure is due process in the primary sense, Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 161, 71 S. Ct. 624, 95 L. Ed. 817 (1951) (concurring opinion), we address ourselves to the issues raised upon this appeal to determine whether a reversal is required." Macklin v. Butler, 553 F.2d 525, 527-528 (7th Cir. 1977).
On June 18, 1976, two months after being hired as a probationary correctional officer at the prison,*fn3 Choudhry called the press to his home to express concern about security conditions at the prison. He also criticized the fact that he had received no formal training during his employment. Warden Jenkins thereupon issued a lock-out order against Choudhry barring him from the prison and suspended him pending an investigation. Articles based upon the press interview appeared in area newspapers the next day. The June 23 letter from Warden Jenkins informing Choudhry of his suspension recited that this "action and investigation has been necessary due to certain public allegations you have made regarding the security and organization of this institution."
On June 22, an administrative hearing was held by the prison authorities which plaintiff was required to attend without counsel although he was permitted, and in fact chose, to attend with a union representative present. After the prison authorities questioned plaintiff on the basis for the charges he made in the press interview, they made recommendations to Warden Jenkins who decided to terminate plaintiff. In his dismissal letter of June 25, Warden Jenkins stated dismissal
"Has been deemed necessary due to the fact that you admitted giving parts of the contents of the [Guard] Post Orders to non-Department of Correction staff. This act constitutes a breach of security. Therefore you are unable to satisfactorily perform the duties and requirements of a Correctional employee at the Indiana State Prison.
At the temporary restraining order hearing, defendants conceded that Choudhry's dismissal was prompted by his public statements.
Relying on Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731, Judge Grant noted that "open comment by a public employee which is false, and made with the knowledge of its falsity or with reckless disregard of the truth, constitutes an impermissible form of expression" (Mem. op. at 4). Moreover, the district court found Pickering to stand for the proposition that "certain statements, although true, may fall outside the ambit of first amendment protection if the need for confidentiality is so great as to justify a dismissal of the employee." Id. Applying these legal standards, Judge Grant found the plaintiff's allegations to be "wholly insubstantial" based on the "briefs, exhibits, and testimony of several witnesses." Id. The district court also found "these false utterances which appear in the newspaper articles have been made with reckless disregard as to their truth or falsity." Id. at 5. Given these findings the court reasoned that although
"the principles of the Constitution are great, it is [the] real and serious threat to societal order which tips the balance in favor of defendants. This potential for disruption in a prison context is the factor which effectively distinguishes plaintiff's authority." Id. at 7.
The court concluded "just as 'the first amendment would not protect a man in falsely shouting fire in a theatre,' Schenck v. United States, 249 U.S. 47, 52 [63 L. Ed. 470, 39 S. Ct. 247] (1919), it cannot protect him in creating disturbances within a prison via the news media." Id. at 8.
As to certain true information allegedly given to the press concerning escape prevention procedures, Judge Grant held that "while the dissemination of the truth should rarely be prohibited, this Court finds that the potential adverse consequences flowing from the disclosure of the prison's weaponry and defense tactics clearly outweigh Choudhry's interest in speaking on matters of public concern." Id. at 8. Having decided that Choudhry's First Amendment rights had not been infringed, the court sua sponte granted summary judgment in favor of the defendants, viz :
"Since Choudhry has based his entire cause of action upon an unmeritorious constitutional claim, the defendants are entitled to an award of summary judgment. Accordingly, the Court, on its own motion, will grant summary judgment in favor of the defendants since there exists no genuine issue of ...