holding that a frivolous grievance cannot form the basis of a retaliation claim
How later courts described this case
- holding that a frivolous grievance cannot form the basis of a retaliation claim
- prisoner’s retaliation claim was properly dismissed, given the absence of any assertion by plaintiff that his new job was less desirable
- not selected for publication in the Federal Reporter
Written by the judges who cited it.
The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 26, 2004
Charles R. Fulbruge III
Clerk
No. 03-11273
Summary Calendar
TRENTON M. BROWN,
Plaintiff-Appellant,
versus
LARRY G. CRAVEN, Sergeant; TIMOTHY A. KING, Correctional Officer
III; REBECCA J. SASSER, Correctional Officer IV; WILLIAM E.
WALKER, Assistant Warden; JOSEPH K. PRICE, Senior Warden; TWILA
PRICE, Clerk V,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:03-CV-48
--------------------
Before HIGGINBOTHAM, JONES and PRADO, Circuit Judges.
PER CURIAM:*
Trenton M. Brown, Texas prisoner # 634019, filed a 42 U.S.C.
§ 1983 complaint alleging various acts of retaliation for his use
of prison grievance procedures. The district court dismissed the
complaint pursuant to 42 U.S.C. § 1997e(c) as frivolous and for
failure to state a claim on which relief may be granted. This
court reviews the dismissal of a 42 U.S.C. § 1983 complaint
pursuant to 42 U.S.C. § 1997e(c) de novo. Bazrowx v. Scott, 136
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-11273
-2-
F.3d 1053, 1054 (5th Cir. 1998). To establish a claim of
retaliation, a prisoner must show “(1) a specific constitutional
right, (2) the defendant’s intent to retaliate against the
prisoner for his or her exercise of that right, (3) a retaliatory
adverse act, and (4) causation.” McDonald v. Steward, 132 F.3d
225, 231 (5th Cir. 1998).
Brown alleges that two correctional officers searched his
cell and took his property in retaliation for his threat to file
a grievance if an officer turned off a television. We have held
that “neither any frivolous filings nor secondary litigation
activity . . . may comprise the basis of a retaliation claim.”
Johnson v. Rodriguez, 110 F.3d 299, 311 (5th Cir. 1997). Because
Brown’s threatened grievance would have been frivolous, it may
not be the basis of a retaliation claim.
Following another grievance regarding the search of his
cell, Brown alleges that officers retaliated by searching his
cell again and seizing additional property. Brown argues he
demonstrated the required retaliatory intent by “a chronology of
events from which retaliation may plausibly be inferred.” See
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (internal
quotation and citation omitted). We affirm on the alternative
ground that Brown failed to establish causation. See Sojourner T
v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992) (court may affirm on
any ground supported by the record). “Causation requires a
showing that but for the retaliatory motive the complained of
No. 03-11273
-3-
incident . . . would not have occurred.” McDonald, 132 F.3d at
231 (internal quotation and citation omitted; ellipses in
original). Because items that cannot be shown to have a
legitimate source are considered contraband, Brown cannot show
that, but for the alleged retaliatory motive, his undocumented
“contraband” would not have been seized during a routine cell
search. See id.
Brown also alleges that officials retaliated by changing his
work assignment two days after he filed a grievance regarding
another cell search. Although prisoners may be transferred to a
different job “for almost any reason or no reason at all,” a
transfer cannot be made in retaliation for the exercise of
constitutional rights. See Jackson v. Cain, 864 F.2d 1235, 1248
n.3 (5th Cir. 1989). In the absence of any assertion by Brown
that the new job was less desirable, we affirm on the alternative
ground that Brown has failed to allege that the reassignment was
an “adverse act.” See McDonald, 132 F.3d at 231 (listing
elements of retaliation claim).
Brown alleges that officials retaliated by filing a
disciplinary charge for possession of contraband two days after
he filed another grievance. Brown was convicted of the
disciplinary charge three days after he filed an additional
grievance. As discussed above, if Brown could not prove that the
“contraband” was legitimately obtained, he cannot show that, “but
for” any retaliatory intent, he would not have been charged with
No. 03-11273
-4-
and convicted for possession of contraband. See McDonald, 132
F.3d at 231.
Brown also alleged that an officer made threatening remarks
to him on several occasions. Although it is unclear whether
Brown alleges that this was retaliation, we note that “as a rule,
‘mere threatening language and gestures of a custodial office do
not, even if true, amount to constitutional violations.”
McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983)
Brown also asserts that the warden and assistant warden
ordered a search of his cell, exhibited deliberate indifference
to their subordinates’ acts, and negligently failed to supervise
their employees. Brown’s allegation that the assistant warden
ordered a search of his cell is unsupported and conclusory.
Brown also has not alleged that these defendants were responsible
for the implementation of any deficient policies. See Thompkins
v. Belt, 828 F.2d 298, 304 (5th Cir. 1987). Moreover, Brown has
not suggested that there a “history of widespread abuse.”
Hinshaw v. Doffer, 785 F.2d 1260, 1263 (5th Cir. 1986)
(generally, failure to supervise gives rise to liability only if
there is a “history of widespread abuse”).
AFFIRMED.