Judge Won’t Block Feds’ Punishment of Journalist in Free Speech Retaliation Suit

The federal government and a private prison contractor can move forward with imposing discipline on a newspaper editor serving time in a San Francisco halfway house, despite claims that the punishment is in retaliation for his speech.

Protestors show support for SF Bay View editor Keith “Malik” Washington during a demonstration outside of the Taylor Street Reentry Facility in San Francisco on Sunday, March 7. (photo from tweet by @MalikWa22046569)

OAKLAND, Calif. (CN) — A federal judge on Thursday declined to stop prison officials from postponing a newspaper editor’s release from a halfway house, finding he must first seek relief through an administrative appeals process.

Keith “Malik” Washington, editor-in-chief of the San Francisco Bay View National Black Newspaper, sued the Federal Bureau of Prisons and its contractor GEO Group on Feb. 1. He claims they selectively charged him with rule violations after he shared information about a Covid-19 outbreak at the facility.

U.S. District Judge Jon Tigar denied Washington’s motion for a preliminary injunction to stop the Bureau and GEO Group from punishing him for rule violations.

Tigar found Washington’s request for an injunction was premature because he did not complete the process of challenging the disciplinary actions through an administrative grievance. The judge also found Washington was unlikely to prevail on his First Amendment retaliation claim because the Bureau and GEO Group “demonstrated that they would have disciplined Washington regardless of any retaliatory motive.”

Washington is serving a two-year sentence for a probation violation related to his 2010 conviction for bank robbery in Texas. In September, he was transferred to the Taylor Street Reentry Center in San Francisco’s Tenderloin neighborhood. The halfway house is run by GEO Group through a contract with the Federal Bureau of Prisons. As part of a work-release program, Washington was allowed leave the halfway house Monday through Saturday to do his job as a newspaper editor.

On Jan. 10, GEO Group confiscated Washington’s cellphone and charged him with “phone abuse” and “unauthorized contact with the public” after Washington shared information with another journalist about a Covid-19 outbreak at the halfway house.

The information came from a “non-confidential” memo that GEO Group distributed to Taylor Street residents on Jan. 8. Washington’s employer, the SF Bay View newspaper, also put out a press release on Jan. 9 stating that GEO Group “withheld information” about the outbreak.

The Bureau of Prisons canceled Washington’s 14 days of good time credits, delaying his release date from March 31 to June 13 and his earliest potential release to home confinement from March 19 to April 2.

Washington was told he could no longer speak to the media without advanced permission from Bureau of Prison officials in Washington D.C. GEO Group also revoked Washington’s permission to attend a press conference about racism in the San Francisco Health Services System on Jan. 11.

In an amended complaint filed Feb. 5, Washington accused GEO Group of further retaliating against him for filing his lawsuit. Washington was cited for “escape from a work detail,” “participating in an unauthorized meeting” and “being in an unauthorized area without permission” after he spoke at a press conference about his lawsuit on Feb. 2.

The charges were also based on Washington’s participation in a press conference on the UC Hastings campus in December 2020 and a radio interview he did with KPFA on Feb. 2 “without permission.”

Washington argued that administrative remedies for challenging those charges were effectively unavailable because the process takes 90 to 160 days, meaning his appeal might not be resolved until a month after his original expected release date.

“Washington invites the Court to hold that whenever there is a possibility that administrative relief will consume so much time that the relief itself will become unobtainable, the relief is ‘unavailable’ for exhaustion purposes,” Tigar wrote in his 14-page ruling. “That argument contains a great deal of common sense, but the Court cannot find caselaw to support it.”

Tigar also found a lack of support for claims that rules were selectively enforced against Washington because of his speech. No examples were cited of other Taylor Street facility residents “engaging in the same or similar conduct and not receiving discipline,” Tigar wrote.

This is not the first time GEO Group has faced criticism over its handling of the Covid-19 pandemic in its facilities.

In June last year, the Intercept published a report stating that GEO Group touted its handling of the coronavirus to investors while the virus spread rapidly in its halfway houses. Following that report, the company was hit with two shareholder class actions for allegedly misleading investors.

Last year, a federal judge issued two injunctions requiring GEO Group to implement stricter Covid-19 safeguards at a private immigrant detention center in California after finding the contractors “cannot be trusted on their own to provide reasonably safe conditions to detainees.”

A Bureau of Prisons spokesperson declined to comment on pending litigation.

Washington’s attorney, Richard Tan, and GEO Group did not immediately respond to emails and phone calls requesting comment.

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