Morris v. Powell

United States Court of Appeals

Fifth Circuit

F I L E D

In the May 15, 2006

United States Court of Appeals Charles R. Fulbruge III

for the Fifth Circuit Clerk

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m 05-40578

Summary Calendar

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DAVID GENE MORRIS,

Plaintiff-Appellant,

VERSUS

CHRISTY POWELL, ET AL.,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

m 5:99-CV-263

______________________________

Before SMITH, GARZA, and PRADO, minimis retaliatory act to establish a con-

Circuit Judges. stitutional violation. Finding that the retalia-

tion alleged by Morris did not pass this bar, the

JERRY E. SMITH, Circuit Judge: court granted the defendants’ motion for

summary judgment, from which Morris ap-

Inmate David Morris sued prison officials peals. Because we agree with the district

under 42 U.S.C. § 1983 for alleged retaliation court’s choice of legal standards but disagree

against him for exercising his First Amendment in part with its application of the law to the

right to use the prison grievance system. The facts, we vacate and remand.

district court determined that prisoners bring-

ing such claims must allege more than a de

I. the claim.

On November 25, 1997, Morris submitted

grievances to prison authorities concerning the Morris contends that this court should not

way defendant Christy Powell ran the Telford adopt the de minimis standard. In the altern-

Unit’s commissary, where Morris was assigned ative, he argues that even if de minimis retal-

to work. On December 1 of the same year, iatory acts are deemed insufficient to support

Morris was moved from the commissary to the a § 1983 claim for retaliation, the retaliation he

kitchen. He worked in the kitchen’s pot room alleges was not de minimis.

on December 5 and was moved from the kitch-

en to the butcher shop on December 8. In II.

May 1998 he was transferred from the Telford We review a grant of summary judgment de

Unit to the Terrell Unit, where he presently novo, applying the same standard as does a

resides. district court. BellSouth Telecommunications,

Inc. v. Johnson Bros. Group, 106 F.3d 119,

Morris alleges that prison officials at the 122 (5th Cir.1997). Summary judgment is

Telford Unit assigned him to a more taxing job appropriate when the record demonstrates that

in the kitchen in retaliation for the exercise of there is no issue of material fact and that the

his constitutional right to file complaints moving party is entitled to judgment as a

against Powell. He also claims that his transfer matter of law. Martinez v. Bally’s La., Inc.,

to the allegedly less desirable Terrell Unit was 224 F.3d 474, 476 (5th Cir. 2001).

an act of retaliation.

A prison official may not retaliate against or

The defendants’ first motion for summary harass an inmate for complaining through

judgment was denied on March 28, 2003. The proper channels about a guard’s misconduct.

district court found that disputed issues of ma- Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.

terial fact existed as to whether the transfer of 1995). “To prevail on a claim of retaliation, a

Morris to different work assignments, and prisoner must establish (1) a specific constitu-

eventually to another prison, was a retaliatory tional right, (2) the defendant’s intent to re-

response to his complaints against Powell. taliate against the prisoner for his or her exer-

The defendants’ motion for reconsideration cise of that right, (3) a retaliatory adverse act,

was denied, and an appeal to this court fol- and (4) causation.” McDonald v. Steward,

lowed. We remanded for consideration of 132 F.3d 225, 231 (5th Cir. 1998).

whether an inmate’s retaliation claim must

allege more than a de minimis adverse act. We must interpret the third prong of this

Morris v. Powell, 114 Fed. Appx. 629 (5th test. The state argues that the district court

Cir. 2004). correctly determined that acts of retaliation so

inconsequential as to be considered de minimis

On remand, the district court held, as a do not satisfy the “retaliatory adverse act”

matter of first impression in this circuit, that an requirement. Morris argues that any act of re-

inmate must allege more than a de minimis taliation, however minor, is an actionable vio-

retaliatory act to proceed with a claim for re- lation of an inmate’s constitutional rights. He

taliation. The court further determined, with- cites Lewis v. Woods, 848 F.2d 649, 651 (5th

out discussion, that the retaliation alleged by Cir. 1988), for the proposition that a violation

Morris was de minimis, so the court dismissed of constitutional rights is never de minimis.

2

The question, however, is not whether the vio- When confronted with more serious alle-

lation of Morris’s constitutional rights was de gations of retaliation, however, we have not

minimis, but whether any violation occurred at hesitated to recognize the legitimacy of an in-

all. To establish a constitutional violation, an mate’s claim. In Hart v. Hairston, 343 F.3d

inmate must show that he suffered a qualifying 762, 764 (5th Cir. 2003), we reversed sum-

adverse retaliatory act. If the retaliation al- mary judgment dismissing a retaliation claim

leged by Morris does not pass this bar, he has where the alleged adverse act was twenty-

suffered no constitutional injury. seven days of commissary and cell restrictions.

Although we declined to adopt such a test, we

Whether an allegation of de minimis retal- noted that “the penalties imposed on Hart do

iatory acts can support a retaliation claim is an not qualify as ‘de minimis’ under various

issue of first impression in this court. The ap- standards cited by other circuits.”

proach we have taken in deciding past inmate

retaliation claims is, however, instructive. We Likewise, in Parker v. Carpenter, 978 F.2d

have never upheld a retaliation claim that al- 190, 192-93 (5th Cir. 1992), we held that re-

leges only inconsequential, or de minimis, re- taliation in the form of transferring the inmate

taliatory acts by prison officials. Rather, our to a more violent section of the prison was

precedent is consistent with the proposition sufficient to support a retaliation claim. In

that an inmate must allege more than de min- Jackson v. Cain, 864 F.2d 1235, 1248 (5th

imis retaliation to proceed with such a claim. Cir. 1989), we overturned summary judgment

where an inmate alleged that he had been

In Jones v. Greninger, 188 F.3d 322, 325- transferred to a less desirable job within the

26 (5th Cir. 1999), we affirmed the dismissal prison in retaliation for filing grievances. The

of a claim alleging that the inmate had been re- inmate, who had worked in a light labor job,

stricted to five hours a week in the law library was moved for forty-seven days to a job that

in retaliation for filing grievances. Although subjected him to extreme hardship and serious

retaliatory intent was properly alleged, the health risks.2

inmate’s claim failed because the retaliatory

adverse acts did not rise to the level of a

constitutional violation. Similarly, in Gibbs v. 1

(...continued)

King, 779 F.2d 1040, 1046 (5th Cir. 1986), iatory] act to establish constitutional harm.” Pierce

we upheld a dismissal, writing that “a single v. Tex. Dep’t of Crim. Justice, Institutional Div.,

incident, involving a minor sanction, is insuf- 37 F.3d 1146, 1149 n.1 (5th Cir. 1994). Although

ficient to prove [retaliatory] harassment.” the law on inmates’ retaliation claims follows a

Thus, without explicitly applying a de minimis different line of cases, we note that to uphold

test, this court has refused to recognize retalia- inmate retaliation claims in cases where only trivial

tion claims based only on allegations of insig- retaliation is alleged, as Morris urges, would

nificant retaliatory acts.1 effectively elevate the constitutional rights of

inmates over those of government employees.

2

The Jackson court described the job to which

1

In the context of claims by state employees the inmate in that case was moved in retaliation for

alleging retaliation for the exercise of First Amend- writing grievance letters:

ment rights, we require “more than a trivial [retal-

(continued...) (continued...)

3

As we acknowledged in Hart, other circuits D.C. Circuit’s Crawford-El standard “is the

have provided persuasive guidance on the appropriate standard by which to determine

quantum of retaliation necessary to support an what type of action is sufficiently adverse to be

inmate’s § 1983 claim.3 The District of Col- cognizable in a retaliation claim under §

umbia Circuit has held that an inmate’s retali- 1983.” Thaddeus-X v. Blatter, 175 F.3d 378,

ation claim must allege adverse acts that 397 (6th Cir. 1999).

“would chill or silence a person of ordinary

firmness from future First Amendment activi- In adopting this standard, the Sixth and

ties.” Crawford-El v. Britton, 93 F.3d 813, D.C. Circuits based their reasoning on the

826 (D.C. Cir. 1996) (en banc), vacated on Seventh Circuit’s rejection, in the employment

other grounds, 523 U.S. 574 (1998). That retaliation context, of de minimis retaliation

reasoning was left undisturbed when the Su- claims: “It would trivialize the First Amend-

preme Court vacated the decision. The Court ment to hold that harassment for exercising the

wrote: “The reason why such retaliation (for right of free speech was always actionable no

the exercise of First Amendment rights) of- matter how unlikely to deter a person of ordi-

fends the Constitution is that it threatens to nary firmness from that exercise . . . .” Bart v.

inhibit exercise of the protected right.” Telford, 677 F.2d 622, 625 (7th Cir. 1982).

Crawford-El v. Britton, 523 U.S. 574, 588 The Second Circuit has employed a similar de

n.10 (1998). See also Hartman v. Moore, minimis standard, asking whether the retalia-

2006 WL 1082843, at *4 (U.S. Apr. 26, tion alleged by an inmate rose to the level of

2006). The Sixth Circuit later held that the that which would deter the exercise of a con-

stitutional right. See Davidson v. Chestnut,

193 F.3d 144, 149-50 (2d Cir. 1999).

2

(...continued)

He was required to work in a barn shoveling The de minimis standard enunciated by our

unshucked corn that was over a year old and sister circuits is consistent with this court’s

contaminated with rats’ nests, insects, and clods precedent. The standard achieves the proper

of white, sandy dust. He had to work unmasked balance between the need to recognize valid

while covered with corn dust in addition to

retaliation claims and the danger of “federal

pushing an iron wagon full of corn approxi-

courts embroil[ing] themselves in every disci-

mately 80 feet ten times a day throughout the

47 day period. His nose bled, his hair fell out, plinary act that occurs in state penal institu-

and his face broke out in sores. He was also tions.” Woods, 60 F.3d at 1166. The purpose

required to mow grass for two hours a day with of allowing inmate retaliation claims under

a sub-standard push lawn mower. He claims he § 1983 is to ensure that prisoners are not un-

was the only member of the crew required to do dulydiscouraged from exercising constitution-

the mowing. After roughly a month of this al rights. See Crawford-El, 523 U.S. at 588

treatment Jackson claims Terry Thompson told n.10. Some acts, though maybe motivated by

him on June 20th that if he would stop writing retaliatory intent, are so de minimis that they

letters to Col. Donald McNeil they would would not deter the ordinary person from fur-

rescind this punishment. ther exercise of his rights. Such acts do not

rise to the level of constitutional violations and

Jackson, 864 F.2d at 1239. cannot form the basis of a §1983 claim.

3

See Hart, 343 F.3d at 764 (citing Thaddeus-X

v. Blatter, 175 F.3d 378, 396 (6th Cir.1999)). We must explain, however, that this thresh-

4

old is intended to weed out only inconsequen- fication was switched from the commissary to

tial actions and is not a means to excuse more the kitchen for about six weeks, he was actu-

serious retaliatory acts by prison officials. Re- ally made to work in the kitchen for only a

taliation against a prisoner is actionable only if week at most. He spent just one day in the

it is capable of deterring a person of ordinary “pot room,” which is evidently an unpleasant

firmness from further exercising his con- work station. He was then moved to the

stitutional rights. butcher shop, and he raises no complaints

about that job.

III.

With this standard in mind, we turn to the Nothing in this sequence of events could

specific retaliation alleged by Morris to deter- support an inference that Morris’s job transfers

mine whether the actions of the Telford Unit would have deterred him from the exercise of

officials would have deterred a person of or- the right to file grievances. The transfers may

dinary firmness from exercising his First have had a retaliatory motive, and Morris may

Amendment right to file grievances against have experienced discomfort for a few days as

prison officials. Because this is a review of a result, but there is no evidence that the job

summary judgment against Morris, we are transfers were more than de minimis. The

bound to view the pleadings and evidence in standard adopted herein is designed to dis-

the light most favorable to Morris. See Smith courage precisely such claims of inconsequen-

v. Xerox Corp., 866 F.2d 135, 137 (5th Cir. tial retaliation. The district court did not err in

1989). granting summary judgment on Morris’s job

transfer claims.

Morris alleges two distinct instances of re-

taliation. First, he claims he was moved to a In its order granting summary judgment, the

less desirable job within the prison. Second, district court did not specifically mention Mor-

he avers that his transfer to the Terrell Unit ris’s second claim, that he was transferred to

was retaliation. According to Morris, it is an inferior prison in retaliation for filing griev-

common knowledge that the Terrell Unit is a ances. Because the court granted summary

harsher environment for prisoners than is the judgment based on its adoption of the de

Telford Unit. When the district court first minimis standard, we must assume it thought

ruled on summary judgment motions, it denied the prison transfer claim was de minimis.

summary judgment because issues of material

fact existed regarding both of Morris’s claims. We disagree. Transfer to a more dangerous

After this court asked the district court to prison is a much more serious retaliatory act

consider the de minimis issue, that court than what has been considered de minimis in

granted summary judgment when it found that other circuits. We have held that transfer to a

neither of Morris’s retaliation claims, as al- more dangerous section of the same prison is

leged, meets the de minimis threshold. a sufficiently adverse retaliatory act to support

a § 1983 claim. See Parker v. Carpenter, 978

On the job-transfer claim, the district court F.2d 190, 192-93 (5th Cir. 1992). There is no

correctly determined that Morris’s allegations doubt that transfer to a more dangerous prison

do not rise to the level of actionable retalia- as a penalty for the exercise of constitutional

tion. The summary judgment evidence indi- rights has the potential to deter the inmate

cates that although Morris’s official job classi- from the future exercise of those rights. Ac-

5

cordingly, Morris’s prison transfer claim meets

the de minimis threshold, and summary judg-

ment should not have been granted on that

claim.

As the district court noted in its pre-remand

order denying summary judgment, though

further evidence may indicate that Morris’s

prison transfer claim is meritless, he has al-

leged events from which retaliation may plaus-

ibly be inferred, and his claim is facially valid.

We find no reason to disagree with this assess-

ment. All that has changed since the district

court denied summary judgment is the adop-

tion of the de minimis standard. Because

Morris’s allegation meets that standard, we

remand for further consideration of the retalia-

tory prison transfer claim.

IV.

The defendants assert qualified immunity.

The initial two-part inquiry facing a court de-

ciding a qualified immunity claim is (1) wheth-

er the violation of a constitutional right been

alleged and, if so, (2) whether the right was

clearly established. Saucier v. Katz, 533 U.S.

194, 210 (2001). These defendants are enti-

tled to qualified immunity on the job transfer

claim because there is no cognizable constitu-

tional violation. On the prison transfer claim,

however, the violation of a constitutional right

has been properly alleged. Any further inquiry

into the qualified immunity issue is not prop-

erly before this court. If the defendants wish

to establish qualified immunity as to the prison

transfer claim, they must ask the district court

for a ruling.

The summary judgment is AFFIRMED in

part, VACATED in part, and REMANDED

for further proceedings as appropriate.

6