A Florida inmate who alleged that two commissioners denied him parole in retaliation for prior lawsuits plausibly alleged a violation of his First Amendment rights against one of the commissioners, a federal appeals court has ruled. 

In 1975, David Ansgar Nyberg was sentenced to a lengthy prison term after his conviction for first-degree murder.  During the 1980s, he filed several lawsuits in state and federal court against Florida correctional officers. On one occasion, U.S. Marshals reported that they heard correctional officers threaten Nyberg in a federal courthouse. 

As a result of these threats, the Florida Department of Corrections settled his lawsuits and agreed to house him in penal institutions outside the state. He has been housed in prisons in Idaho and Nevada. However, in 1995, due to overcrowding he was transferred back to a Florida prison where correctional officers beat him badly.

Since 1996, Nyberg has been housed in a Nevada prison.

Inmate claims he was denied parole as retaliation for exercising First Amendment rights

In 2015, Nyberg was up for parole review before the Florida Commission on Offender Review.  The Commission’s vote was a three-way split.   One commissioner voted for his parole.   Commissioner Richard Davidson voted to deny his parole and Commissioner Melinda Coonrod voted to extend his parole for two years until he participated in a Florida re-entry program.

Nyberg filed a federal lawsuit, alleging that Davidson and Coonrod voted to deny him parole in retaliation for his prior lawsuits with the Florida Department of Corrections.   A federal district court dismissed his lawsuit.

On appeal, however, a three-judge panel of the 11th U.S. Circuit Court of Appeals reinstated part of his First Amendment retaliation claim in Nyberg v. Davidson

11th Circuit says says claim of retaliation for First Amendment rights is plausible

The panel explained that an inmate pursuing a First Amendment retaliation claim must show three elements:

  1. That he engaged in First Amendment protected activity;
  2. That he suffered an adverse action that would deter a person of ordinary firmness from pursuing First Amendment activity; and
  3. That he suffered the adverse action because of the First Amendment activity.

The defendants asserted that Nyberg’s claim must fail because there is no constitutional right to parole.  The panel, however, explained: “While there is no constitutional right to parole, an action, such as parole denial, that ordinarily would not violate the First Amendment may run afoul of the Constitution if done for a retaliatory purpose.”

In other words, the panel explained that the commissioners “may not deny parole in order to retaliate against Nyberg exercising his First Amendment rights.”   The panel determined that Nyberg plausibly alleged a retaliation claim against Davidson, but not Coonrod. 

Coonrod said she would delay parole for Nyberg because he was housed in Nevada and she was unfamiliar with the inmate re-entry programs in Nevada.  That is not related to any retaliation against Nyberg for past lawsuits.

Davidson, however, may have retaliated against Nyberg, the panel reasoned.  “Davidson said at Nyberg’s parole hearing that he voted to deny parole at least in part because he did not think Nyberg should benefit from a settlement within the state,” the panel wrote.

Panel remands case to discover parole board member's motivations for denying parole

The panel, thus, remanded the case back down to the district court for further litigation to discover Davidson’s motivations for voting to deny Nyberg parole.

The case is important, because it emphasizes the important principle that government officials can violate the First Amendment if they retaliate against someone – even an inmate – for that person’s exercise of First Amendment activity.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017).