finding that threat to have a prisoner moved out of the unit so that he would lose his job, together with a threat to influence the warden to have the prisoner transferred “to a location where his family would not be able to visit him,” were sufficient to plead adverse action and avoid a motion to dismiss
How later courts described this case
- finding that threat to have a prisoner moved out of the unit so that he would lose his job, together with a threat to influence the warden to have the prisoner transferred “to a location where his family would not be able to visit him,” were sufficient to plead adverse action and avoid a motion to dismiss
- holding that a threat to have a prisoner moved out of the unit so that he would lose his job, together with a threat to influence the warden to have the prisoner transferred to another institution far from his family could be sufficiently adverse to be actionable
- holding that a prisoner threatening to file a “legitimate” grievance was conduct “arguably protected by the First Amendment”
- concluding that a threat to have the plaintiff “moved out of the unit so that he would lose his job” was “‘capable of deterring a person of ordinary firmness’ from exercising protected rights, the standard for adverse action.”
Written by the judges who cited it.
The opinion
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0664n.06
No. 08-2132 FILED
Sep 29, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
LYNN T. PASLEY )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
VERA CONERLY ) DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
)
)
BEFORE: BOGGS, ROGERS and WHITE, Circuit Judges.
ROGERS, Circuit Judge. Inmate Lynn T. Pasley appeals the dismissal of his pro se civil
rights action against an employee of the correctional institution where he is housed. Pasley filed a
complaint pursuant to 42 U.S.C. § 1983, alleging that Vera Conerly, an Assistant Resident Unit
Supervisor, violated his First, Eighth, and Fourteenth Amendment rights through various forms of
harassment and intimidation. The district court screened Pasley’s complaint before serving it on the
defendant and dismissed it for frivolousness and failure to state a claim. Specifically, the district
court cited precedent indicating that Pasley failed to allege facts to support a claim of cruel and
unusual punishment under the Eighth Amendment. The district court did not address Pasley’s claim
under the First Amendment. Because Pasley alleged facts that may be sufficient to sustain a claim
No. 08-2132
Pasley v. Conerly
of First Amendment retaliation, dismissal prior to serving the claim on the defendant was premature.
The case is therefore remanded to the district court for service on the defendant.
Pasley is an inmate in the Michigan Department of Corrections prison system. The following
factual statement is based on allegations which we take as true only for purposes of this appeal. At
the times relevant to this appeal, Pasley was housed in the Huron Valley Complex. In late November
2007, the prison conducted an administrative hearing and determined that Pasley possessed a large
amount of law-related material that he was entitled to keep. When Pasley approached Conerly, his
Assistant Resident Unit Supervisor, about obtaining additional footlockers, she responded, “I don’t
know why you are keeping all that bull-shit, you are not going home anyway . . . .” Pasley sought
help from another officer. After that officer talked to Conerly about the incident, Conerly brought
Pasley into her office, called him a “rat,” and supplied him with a single U.S. Postal Service
container. When Pasley objected to taking the container, she told him, “Get out of my face.” Pasley
then told Conerly that he would file a grievance against her if she refused to help him obtain the
necessary storage containers. According to Pasley, Conerly told him that if he filed a grievance, she
would have him transferred out of the unit and he would lose his job. She then stated, “I use [sic]
to be married to a warden and I will have your ass transferred so far up North that your family
[won’t] recognize you when you get back.” At that point, Pasley took the postal container and left.
A few days later, another officer searched Pasley’s cell and found the postal container, which
contained steel rods. The officer told Pasley that he would receive a major misconduct ticket for
possessing dangerous contraband. Conerly initially denied giving Pasley the container and
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Pasley v. Conerly
encouraged the officer to write the misconduct ticket. However, Conerly recalled giving Pasley the
container after Pasley reminded her that she had given him the container in the presence of another
officer. Pasley alleges that he later learned that Conerly sent the officer to his cell to search for the
postal container. The day after the search incident, Conerly informed Pasley that she would no
longer provide him with services such as processing his mail and disbursing funds from his account.
Pasley alleges that on December 10, 2007, as he was leaving Conerly’s office after trying to
process his mail, Conerly intentionally activated her personal protection device. According to
Pasley, Conerly removed the device from her bag, looked Pasley in the eye, and pulled the pin to
activate the device. Pasley said he feared for his life as officers from all over the unit quickly
responded to the call. An officer who was standing outside of Conerly’s line of sight intervened
because he had seen that Pasley was outside of Conerly’s office at the moment of the call. Conerly
then stated that she activated the device accidentally.
Several days later, Pasley filed a formal grievance against Conerly. Pasley pursued the
grievance until it was resolved against him at the highest level of administrative review. Pasley then
filed a complaint in district court. 28 U.S.C. § 1915A and § 1915(e)(2) require the district court to
screen a pro se prisoner’s suit before docketing, or as soon as practicable. During that review, the
district court concluded that Conerly’s complaint failed to state a claim under § 1983 and/or that it
was frivolous. The court concluded that verbal abuse, harassment, and unprofessional conduct do
not constitute constitutional violations. Although the court purported to dismiss all of Pasley’s
claims, the authority that the court cited, Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004),
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No. 08-2132
Pasley v. Conerly
refers only to Eighth Amendment claims for cruel and unusual punishment. The district court did
not consider whether Conerly’s behavior violated Pasley’s First Amendment rights.
Although the district court properly addressed Pasley’s claim under the Eighth Amendment,
dismissal was premature because Pasley has sufficiently alleged the elements of a First Amendment
retaliation claim. The district court correctly concluded that Pasley did not state a claim for cruel
and unusual punishment under the Eighth Amendment because general abuse and harassment on the
order of what Pasley allegedly experienced, while a shameful reflection on the prison system if
Pasley’s allegations are true, does not constitute cruel and unusual punishment. See Johnson, 357
F.3d at 545-46. However, the district court did not address Pasley’s First Amendment claim.1 A
prisoner makes out a First Amendment retaliation claim by showing: “(1) [he] engaged in protected
conduct; (2) an adverse action was taken against [him] that would deter a person of ordinary firmness
from continuing to engage in that conduct; and (3) . . . the adverse action was motivated at least in
part by [his] protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).
Pasley alleges each element sufficiently to overcome dismissal at this early stage.
1
Pasley also attempts to raise a claim under the Fourteenth Amendment. Because Pasley’s
claim is cognizable under the First Amendment, it need not be considered under the more
generalized due process provision of Fourteenth Amendment. The Supreme Court held in the
context of excessive force claims that, where a specific provision of the Constitution applies, a claim
must be analyzed under the specific provision rather than under the Fourteenth Amendment.
Graham v. Conner, 490 U.S. 386, 394-95 (1998). In Thaddeus-X v. Blatter, we applied Graham’s
holding to claims cognizable under the First Amendment. 175 F.3d 378, 387-88 (6th Cir. 1999) (en
banc).
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Pasley v. Conerly
First, Pasley’s statement that he would file a grievance against Conerly if she did not help
him to obtain footlockers might constitute protected conduct under the First Amendment. It is well
established that prisoners have a constitutional right to file grievances against correctional
employees. Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). This circuit appears not to have
determined conclusively whether merely threatening to file a grievance constitutes protected activity.
In an unpublished order issued shortly after the court decided Thaddeus-X v. Blatter, we held that
a prisoner who merely threatened to file a federal lawsuit was engaged in protected behavior. See
Dean v. Conley, No. 98-5906, 1999 WL 1045166, at *2 (6th Cir. Nov. 9, 1999). We based this
conclusion on the fact that prisoners have a constitutional right to file civil rights claims. In two
other unpublished orders, we held that certain prisoners who had threatened to file grievances were
not engaged in protected conduct, but in each case we based our conclusion on the fact that the
threatened grievance was frivolous and that prisoners do not have a protected right to file frivolous
grievances. See Scott v. Kilchermann, No. 99-1711, 2000 WL 1434456, at *2 (6th Cir. Sept. 18,
2000); Thaddeus-X v. Love, No. 98-2211, 2000 WL 712354, at *3 (6th Cir. May 22, 2000). These
two orders are consistent with the possibility that, had the prisoners threatened to file legitimate
grievances, the conduct would have been protected. Because Pasley’s threatened grievance was
arguably legitimate, his conduct was arguably protected by the First Amendment.
Second, Conerly’s actions, as alleged by Pasley, could constitute “adverse action” under the
precedent of this court. Pasley alleges that after he mentioned the possibility of filing a grievance,
Conerly made two immediate threats: first, to have him moved out of the unit so that he would lose
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No. 08-2132
Pasley v. Conerly
his job and, second, to use her influence with a warden to have him moved to a location where his
family would not be able to visit him. These threats could be “capable of deterring a person of
ordinary firmness” from exercising protected rights, the standard for adverse action set forth in
Thaddeus-X. 175 F.3d at 398. We held in Siggers-El v. Barlow, 412 F.3d 693, 701-02 (6th Cir.
2005), that a retaliatory transfer to another institution was an adverse action if it resulted in
foreseeable, negative consequences to the prisoner, such as loss of his high-paying job and reduced
ability to meet with his lawyer. This court has also noted that a mere threat is actionable if it
otherwise meets the standard that it would deter a person of ordinary firmness from engaging in a
protected activity. See Smith v. Yarrow, 78 F. App’x 529, 543 (6th Cir. 2003).
Additionally, Pasley alleges that Conerly’s actions subjected him to the possibility of
receiving a major misconduct ticket. Pasley alleges that Conerly pressured him to accept an illegal
container and then reported him for possessing contraband. In an appeal from the denial of qualified
immunity in a prison retaliation case, we noted that precedent “clearly establishes that the mere
potential threat of disciplinary sanctions is sufficiently adverse action to support a claim of
retaliation.” Scott v. Churchill, 377 F.3d 565, 571-72 (6th Cir. 2004). In that case, a prison guard
retaliated against a prisoner by unsuccessfully framing him for a major misconduct charge. Id.
Pasley also alleges that Conerly placed him in physical danger by intentionally activating her
personal protection device while he was attempting to leave her office. A person of ordinary
firmness could arguably be dissuaded from filing a grievance by an action which, if it occurred as
Pasley alleges, would have impressed upon Pasley the amount of physical force Conerly could bring
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No. 08-2132
Pasley v. Conerly
to bear on him through a false allegation. This court has noted that, “while certain threats or
deprivations are so de minimis that they do not rise to the level of being constitutional violations,
this threshold is intended to weed out only inconsequential actions.” Thaddeus-X, 175 F.3d at 398.
Finally, Pasley alleges a causal connection between his threat to file a grievance and
Conerly’s actions. The causal connection hinges on Conerly’s subjective motivations for her actions.
See id. at 399. Conerly’s alleged threats to have Pasley transferred came in direct response to
Pasley’s statement about filing a grievance. She gave him the postal container during that same
encounter, and the search of Pasley’s cell—along with Conerly’s initial denial that she had provided
the contraband container—occurred shortly thereafter. According to Pasley, Conerly informed him
the next day that she would no longer process his mail or disbursement requests, and it was in the
context of Pasley’s trying to send out mail that Conerly activated her personal protection device.
Pasley has sufficiently alleged that Conerly’s actions were motivated, at least in part, by his threat
to file a grievance against her. See Thomas v. Eby, 481 F.3d 434, 441 (6th Cir. 2007).
Regardless of whether Pasley can ultimately prevail on his claim, or even survive summary
judgment, Pasley’s pleading meets the low requirements for surviving dismissal. This court reviews
de novo the district court’s order of dismissal. Thomas, 481 F.3d at 437. Three provisions of law
require district courts to review pro se prisoners’ claims prior to serving them on the defendants and
to dismiss them if they are frivolous, malicious, or fail to state a claim for which relief can be
granted, see 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c). 28 U.S.C. §
1915A direct the court to dismiss complaints that are “frivolous, malicious, or fail [] to state a claim
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No. 08-2132
Pasley v. Conerly
upon which relief may be granted.” Moreover, § 1915(e)(2) directs the district court to dismiss a
case filed in forma pauperis at any time if the court determines it is frivolous or fails to state a claim
upon which relief may be granted. Although Pasley has not made an effective argument for First
Amendment retaliation either in his original complaint or his brief to this court,2 the facts alleged in
Pasley’s complaint arguably contain the elements of such a claim. Courts are instructed to give
indulgent treatment to the “inartfully pleaded” allegations of pro se prison litigants. Haines v.
Kerner, 404 U.S. 519, 520 (1972). Additionally, “[t]he Supreme Court has explained that a
complaint should be dismissed as frivolous only if it . . . contains factual allegations that are
‘fantastic or delusional’ or if it is based on legal theories that are indisputably meritless.” Brown v.
Bargery, 207 F.3d 863, 866 (6th Cir. 2000) (Citing Neitzke v. Williams, 490 U.S. 319, 325-28
(1989)). Pasley’s allegations are not fantastic or delusional, and they are arguably sufficient to make
out a constitutional claim. Therefore, his claim is not dismissible either for frivolousness or for
failure to state a claim.
For the foregoing reasons, the district court’s judgment is AFFIRMED insofar as it dismisses
Pasley’s Eighth Amendment claim and VACATED insofar as it dismisses his First Amendment
claim. The case is remanded for service on the defendant.
2
In his brief to this court, Pasley alleges First Amendment retaliation, but relies solely on his
constitutional right to send mail. Because Pasley was ultimately able to send his mail by giving it
to a different guard and because there is no indication that Conerly’s actions were motivated by
Pasley’s sending of mail, the particular theory advanced in Pasley’s brief has no merit.
8