Judge John Curtin
While a parolee in the state correctional system’s Willard Treatment Center, Graham was struck by Peters while counselor Rodabaugh questioned him about journal entries questioning the competence of Willard’s staff. Guards responding to Peters’ radio call then beat Graham. Beyond alleging retaliation and excess force, Graham contended he was brought up on false disciplinary charges resulting in eight months’ additional custody. His 42 USC §1983 action alleged excess force and deliberate indifference/failure to intervene under the Eighth Amendment, deprivation of due process under the Fourteenth Amendment, and retaliation under the First Amendment. The court dismissed his due process, First Amendment and conspiracy claims. His failure to intervene claim was dismissed except as to Rodabaugh, and his excess force claim was dismissed as to Rodabaugh only. Graham admitted that he was given the opportunity to contest the disciplinary charges. His complaint made clear that the additional guards entered the room after the assault had begun and assisted Peters in what appeared to be an altercation with Graham. Further, the court found no caselaw supporting Graham’s position that his journal entries constituted protected speech.
