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Second Circuit Review: Prisoners’ Rights and the Concept of ‘Aggregate Deterrent Effect’
March 14, 2025
Litigation of counsel Martin Flumenbaum and firm Chairman Brad Karp’s latest Second Circuit Review column, “Prisoners’ Rights and the Concept of ‘Aggregate Deterrent Effect,’” appeared in the March 14 issue of the New York Law Journal. The authors discuss the Second Circuit’s recent reversal of a district court’s summary judgment ruling for a correctional officer in a lawsuit brought by an incarcerated man alleging that the officer violated his constitutional rights of freedom of speech, due process and equal protection of the laws. The plaintiff alleged that the officer destroyed his draft lawsuit and threatened to retaliate if he were to file a grievance about that destruction, and that the plaintiff suffered a physical assault by other officers who repeated the same threat. While the district court found that the plaintiff fell short of establishing an adverse action by failing to show that the officer’s conduct amounted to actionable retaliation related to the plaintiff’s protected speech, the appellate panel held that the lower court erred in failing to consider the aggregate deterrent effect of the officer’s conduct. The Second Circuit held that, where different instances of protected speech are intertwined, such as the destruction of legal materials and the threat of retaliation, a court can consider them in the aggregate for Section 1983 First Amendment claims, thereby broadening the protection of the rights of incarcerated people.
Litigation associate Kennedy Barber-Fraser assisted in the preparation of this column.
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