Bibbs v. Early

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 12, 2008

No. 07-10452 Charles R. Fulbruge III

Clerk

JUAREZ MIGUEL BIBBS

Plaintiff-Appellant

v.

LESLIE EARLY; JAMIE BURKHOLDER; RICHARD GIBSON

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Juarez Miguel Bibbs, a prisoner in Amarillo, Texas, brought an action

under 42 U.S.C. § 1983. He alleged that after he lodged several grievances with

correctional officers, they turned on a “purge fan” in his cell for approximately

four and one-half hours on four consecutive nights, causing the temperatures in

his cell to drop below freezing. The district court granted Defendants’ summary

judgment motion based on a magistrate judge’s recommendation, finding that

the officers’ alleged retaliation was de minimis. Bibbs appealed.

I

Juarez Miguel Bibbs, Texas prisoner # 649087, is incarcerated in Amarillo,

Texas at the Clements Unit. On September 12, 2005, he filed a complaint under

No. 07-10452

§ 1983. He alleged that each of the Defendants – officers at the unit – had

retaliated against him for filing grievances. He filed the grievances after

Officers Early and Burkholder in October and November 2004 allegedly “failed

to conduct” their “job duties properly”1 while assigned to Bibbs’ pod. When these

officers and Officer Gibson were assigned to his pod in December 2004, Bibbs

alleged that they turned on a “purge fan” for four consecutive nights, subjecting

him to freezing temperatures for approximately four and one-half hours each

night.2 The fans allegedly “pulled the outside air into the pod and cells. The

outside air on these dates was about 20 degrees.” “It was so cold,” he alleged, “I

had to wake up put on all my clothes and use two (2) blankets to try to keep

warm.” In his later objection to the magistrate’s report, Bibbs attached records

showing that the low temperature in Amarillo on December 13 and 14, two of the

days when the purge fan was allegedly running, was in the 20’s each day. As a

result of these conditions, Bibbs alleged that he was unable to eat and had

“aches/pains in my back, side and head . . . chills . . . headaches,” and a “sore and

swollen” throat but that he avoided the three-dollar fee for seeing a doctor by

treating his “flu symptoms” with “cough syrup and cold tablets.”

His original complaint also alleged that he alerted Defendants to the

conditions but they did not remedy them. When he asked Officer Early to turn

the fan off she allegedly responded, “The fan is on automatic. I can’t turn it off,”

while a later inquiry to the maintenance department by Bibbs allegedly showed

that the fan was not automatic. According to Bibbs’ complaint, Officers

1

Bibbs alleged that they “failed to conduct proper ingress and regress as outlined” in

the TDCJ security manual.

2

In his general paragraph under the heading “complaint,” Bibbs alleged that

“defendants retaliated by intentionally, purposefully, and maliciously subjecting plaintiff to

20 degree temperatures for five (5) hours a day for four (4) days in a row.” Later in his

complaint he alleged that the purge fan was on from approximately 2:00 AM to 6:30 AM each

morning on December 13, 14, 15, and 16.

2

No. 07-10452

Burkholder and Gibson gave similar responses when he asked them to turn off

the fan, stating, “The fan is on automatic and I have no control over the fan.”

“Then as he walked off he laughed and said, ‘You mother-f_ _ _ _rs gone stop

writing grievances.’” Officer Gibson allegedly replied, “It’s not cold in here, it

feels good. If you all would stop writing grievances you would not have to worry

about it being cold. You know we stick together.”

The case was referred to a magistrate. Defendants moved for summary

judgment, submitting Bibbs’ medical records to show that he had not requested

medical assistance, urging qualified immunity,3 and maintaining that Bibbs’

allegations failed to state a claim of retaliation and if Bibbs suffered any injury,

it was de minimis. Bibbs filed a response in opposition and attached supporting

affidavits. The magistrate prepared a report and recommendation, finding that

Bibbs provided “allegations which a fact-finder could consider sufficient to

establish retaliatory intent and causation” but that

the injury of which plaintiff complains, “flue [sic] like symptoms”

relieved by over the counter medication and not serious enough in

severity or duration to warrant plaintiff making any request for

medical attention, is not nearly as sustained or as severe as those

the Fifth Circuit has found sufficient to state a claim of retaliation.

Consequently, the claimed injury is de minimis for purposes of First

Amendment analysis. Further, plaintiff . . . was not deterred from

exercising his First Amendment right to file subsequent grievances,

as shown by his prompt filing of the Step 1 and Step 2 grievance on

the retaliation claim forming the basis of the instant suit.

Bibbs filed an objection to the report and recommendations, urging that his

symptoms complained of were sufficiently severe to support a retaliation claim.

Prior to the magistrate’s report, Bibbs had made a motion to join unnamed

defendants in their individual capacities. He alleged that these defendants were

assigned to his pod with the existing Defendants, that they “knew the purge fan

3

Defendants do not raise immunity on appeal.

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No. 07-10452

was on pulling the 20 degree temperture [sic] into the cells causing the inmates

to be subjected to the extreme cold. They could have turned the fan off but did

not.” The district court denied this motion, finding, “At most, plaintiff’s

allegations against the prospective four additional defendants state a claim of

negligence, not retaliation and not deliberate indifference. Section 1983 imposes

liability for deprivation of constitutionally protected rights, not for violations of

tort duties of care.” It concluded, “As to the prospective additional four unnamed

defendants, plaintiff has failed to state a claim on which relief can be granted;

and his motion is, therefore, DENIED.” On March 7, 2007, the court also

entered an order granting Defendants’ summary judgment motion and

dismissing all of Bibbs’ claims with prejudice. Bibbs filed a motion for

reconsideration, which the court denied. Bibbs then appealed.

II

“The law of this circuit is clearly established . . . that a prison official may

not retaliate against or harass an inmate . . . for complaining to a supervisor

about a guard’s misconduct.”4 “To state a valid claim for retaliation under

section 1983, a prisoner must allege (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.”5 We review de novo a

district court’s grant of summary judgment to Defendants on a retaliation claim,6

placing the burden on the moving party to show that there is no genuine issue

of material fact and, if that burden is met, on the nonmoving party to “set forth

specific facts showing the existence of a genuine issue for trial.”7 Defendants do

4

Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995).

5

Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir.1999).

6

Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006).

7

Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003) (per curiam) (citing Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986); Fed. R. Civ. P. 56(e)).

4

No. 07-10452

not dispute that Bibbs alleged facts and produced evidence to establish a specific

constitutional right or Defendants’ intention to retaliate against him for

exercising his constitutional rights.8 However, they maintain that the district

court correctly found that Bibbs’ retaliation claim was de minimis and that,

alternatively, we should affirm the district court’s holding because there was

inadequate summary judgment evidence of causation.9 Bibbs urges that the

court erred in granting Defendants’ summary judgment motion and dismissing

his claims because there was a genuine issue of material fact as to whether his

retaliation claim involved something more than de minimis retaliation.

“Retaliation against a prisoner is actionable only if it is capable of

deterring a person of ordinary firmness from further exercising his

constitutional rights.”10 Where an inmate was allegedly transferred to a food

services job and thus “limited to approximately five hours per week to conduct

legal research,” this evidence was inadequate to support a retaliation claim, as

five hours of library time did not violate his right of access to the court.11

Similarly, where an inmate alleged that a defendant retaliated against him by

removing him “from his job as inmate counsel” and later transferring him to

another prison, this was inadequate to support a retaliation claim, as “[a]

8

See also Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir. 1989) (“A prison inmate is

entitled to his First Amendment right to freedom of expression so long as it is not inconsistent

with his status as a prisoner and does not adversely affect a legitimate state interest. . . .

Filling out a prison-mandated form and complaining about treatment by means of a private

letter to the warden can be compatible with the acceptable behavior of a prisoner and thus may

not adversely affect the discipline of the prison.”).

9

Specifically, they urge, “Defendants-Appellees still contend that Bibbs has failed to set

forth a chronology of events from which retaliation may be plausibly inferred. . . . The plausible

inference is not that Defendants-Appellees are retaliating against Bibbs for grievances filed

months earlier, but rather that there was a problem with the purge fans that was addressed

when Bibbs complained about it.”

10

Morris, 449 F.3d at 686.

11

Jones, 188 F.3d at 325-26.

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No. 07-10452

prisoner has no constitutionally protected interest in a particular facility or a

specific work assignment.”12

But an alleged adverse retaliatory act against an inmate was not de

minimis where, following an inmate’s filing of a grievance, an official “filed a

disciplinary report” against the inmate and the inmate alleged that another

official “accepted the disciplinary charge, that he was convicted in a disciplinary

proceeding . . . , and that he was punished with 27 days of commissary and cell

restrictions.”13 In Parker v. Carpenter, a pretrial detainee, after allegedly having

a “verbal altercation with a jail officer,” was transferred “from the low-risk

minimum security section to the overcrowded violent inmate section” of a jail.14

He also alleged that in the violent inmate section, he was “denied access to a bed

to lay down on, despite jail official’s [sic] knowledge of his serious back

condition.”15 We found that he had stated a cognizable claim for retaliation

under § 1983, particularly “because pretrial detainees are entitled to protection

from adverse conditions of confinement created by prison officials for punitive

purposes.”16 And in Jackson v. Cain, where an inmate claimed “that he was

moved from a desirable job assignment to a ‘punishment crew’ because he wrote

an arguably offensive remark on the clothes release form and also a letter to the

prison warden,”17 we held that the inmate had “raised an issue of material fact

regarding the motives behind the prison authorities’ decision to switch him” to

12

Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996) (per curiam).

13

Hart, 343 F.3d at 763.

14

978 F.2d 190, 192 (5th Cir. 1992).

15

Id.

16

Id. at 192-93.

17

864 F.2d at 1247.

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No. 07-10452

the “punishment crew.”18 As such, we held that “summary judgment against .

. . [plaintiff] was inappropriate.”19 We recognized that “a prisoner has no

constitutional right to a specific work assignment” – “[t]here is no question that

the prison officials had the general authority to reassign . . . [plaintiff] to new

work.”20 “This general authority however, can be exceeded.”21

[T]he prison officials could have transferred . . . [plaintiff] to any job

for almost any reason or no reason at all, and he would have had no

claim. But while this decision may be arbitrary, it may not be

retaliatory against . . . [plaintiff’s] exercise of constitutional rights,

and while it may be punishment it may not be in excess of the

prison’s own guidelines or without minimal due process.22

Nor was Bibbs, as a legally incarcerated individual, entitled to the comforts of

everyday life.23 But we are persuaded that Bibbs has raised a cognizable claim

of retaliation by alleging and providing supporting evidence that he exercised his

First Amendment rights and was then subjected to below-freezing temperatures

for more than four hours during each of four consecutive nights – a measure of

retaliation. Under the Eighth Amendment, “‘[p]risoners have a right to

protection from extreme cold.’”24 The cold here was not of the “extreme” type

18

Id. at 1248.

19

Id.

20

Id.

21

Id.

22

Id. at 1248 n.3; see also Morris, 449 F.3d at 685.

23

See, e.g., Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999) (observing that “the

constitution ‘does not mandate comfortable prisons’” (quoting Rhodes v. Chapman, 452 U.S.

337, 349 (1981))).

24

Id. at 353 (quoting Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir.1997)).

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No. 07-10452

described in Palmer v. Johnson that rose to an Eighth Amendment violation.25

But our standard for retaliation claims does not require resulting “harm” for a

claim to be actionable under § 1983.26 Bibbs has at minimum raised a question

of material fact on his retaliation claim. Subjecting an “ordinary person” to four

straight nights of 20-degree temperatures might well “‘chill or silence a person

of ordinary firmness from future First Amendment activities’”27 – in more ways

than one. The fact that Bibbs, following his exposure to the purge fan, filed a

“Step 1 and Step 2 grievance on the retaliation claim forming the basis of the

instant suit” does not persuade us otherwise, particularly at the summary

judgment stage. The analysis at the least is not wholly subjective,28 and the

alleged conditions created by the retaliatory acts may have been sufficiently

severe to deter future grievances unrelated to the purge fan but also to spur

Bibbs to challenge the retaliatory conditions themselves in an attempt to avoid

future retaliation.

III

25

Id. at 349. In Palmer, a warden ordered Palmer and 48 other inmates to spend the

night in a field. Palmer was in short sleeves, and the temperature dropped below 58 degrees.

The prisoners were denied jackets and blankets, and the inmates “tried to stay warm by

huddling together, piling on top of one another, and digging holes in the dirt.”

26

Morris, 449 F.3d at 685-86 (quoting Crawford-El v. Britton, 93 F.3d 813, 826

(D.C.Cir.1996) (en banc), vacated on other grounds, 523 U.S. 574 (1998)) (agreeing with the

District of Columbia Circuit’s standard that an “inmate’s retaliation claim must allege adverse

acts that ‘would chill or silence a person of ordinary firmness from future First Amendment

activities’”).

27

Id. at 685 (quoting Crawford, 93 F.3d at 826).

28

See Morris, 449 F.3d at 686 (discussing the “ordinary firmness” standard); see also

Johnson v. Rodriguez, 110 F.3d 299, 314 (5th Cir. 1997) (reversing and remanding a

magistrate judge’s holding that inmates were retaliated against in violation of constitutional

rights, where “[t]he magistrate judge’s conclusion of constitutional injury relie[d] exclusively

upon testimony concerning the subjective appraisal of prisoners, with little or nothing in the

way of objective evidence of actual injury” (citing United States v. Ramsey, 431 U.S. 606, 622-

24 (1977))); Ramsey, 431 U.S.at 624 (reversing a district court’s retaliation holding where “any

‘chill’ that might exist under . . . [the] circumstances may fairly be considered not only

‘minimal,’ but also wholly subjective”).

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Defendants maintain that even if Bibbs’ retaliation claim is not de

minimis, we should affirm the district court’s ruling on the alternative basis that

Bibbs did not present sufficient evidence of causation to survive summary

judgment. We are not persuaded. To prevail on a retaliation claim, an inmate

“must produce direct evidence of motivation or, the more probable scenario,

‘allege a chronology of events from which retaliation may plausibly be

inferred.’”29 Bibbs alleged in his complaint that he filed grievances against two

officers and that approximately one month after he filed his last grievance, the

same officers he had complained of, and an additional officer, refused to turn off

the purge fan. When he asked Defendants to turn off the purge fan, they

claimed that the fan was on “auto” and that they could not turn it off. In his

response to Defendants’ motion for summary judgment, Bibbs attached a letter

that he had written to the prison maintenance department, complaining of the

purge fan and stating that he had been “told the fan is auto.” He also attached

the response from the maintenance department, which indicated that the

operation of the fan was not automatic.30 Bibbs alleged in his complaint that

Defendants made comments to the effect that if the inmates stopped writing

grievances the purge fans would be turned off, responding when Bibbs

complained of the fan, “You mother-f_ _ _ _rs gone stop writing grievances” and

“If you all would stop writing grievances you would not have to worry about it

being cold.” He also alleged in a declaration filed pursuant to 28 U.S.C. § 1746

that when he complained to Officer Early about the purge fan, she replied, “You

29

Woods 60 F.3d at 1166 (quoting Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir.

1988)).

30

The response from maintenance provided, “This is not an auto function on purge

fans.” Defendants erroneously maintain in their reply brief that “[t]hough Bibbs asserts that

he received a response from the maintenance department that the fans were not automatic,

he did not present evidence of this before the district court.” The letter was attached to his

response before that court.

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No. 07-10452

all gonna learn about writing me up!” In affidavits from other inmates attached

to Bibbs’ response to Defendants’ motion for summary judgment, inmates

similarly testified that when asked if she would turn off the fan, Early “stated

no she would not and that she can do as she wants to do and if I didn’t like it

then write a grievance, she didn’t care.”31 The same inmate testified that Gibson

“also refused to turn off the fan, stating something in the effect of he would leave

it on all the time if it was left up to him and that all we do is complain.”32

Another inmate testified in an affidavit attached to Bibbs’ response that Early

said that the fan was “automatic.”33 Further, Bibbs alleged that the retaliation

occurred after he filed his grievances: his complaint stated that he “and several

other offenders” filed a grievance against Officer Early after October 18, 2004,

and against Officer Burkholder after November 11, 2004.34 The purge fan

incidents allegedly occurred from December 13 through 16, 2004. Rather than

adducing “mere conclusory allegations of retaliation,” Bibbs alleged and provided

evidence of “‘a chronology of events from which retaliation may plausibly be

inferred.’”35 Although some cases where we have found adequate allegations of

31

Affidavit of Steven Smith, Executed Jan. 29, 2005.

32

Id.

33

Affidavit of Anthony Roberson, Executed Feb. 1, 2005.

34

The grievances are not in the record, but Defendants acknowledged that Bibbs filed

grievances in their motion for summary judgment, stating, “Plaintiff claims that he was being

retaliated against for filing administrative grievances against Defendants individually.

Plaintiff assumes that Defendants [sic] Early is retaliating against him for a grievance that

was filed over two months earlier, which found that there was no evidence of Plaintiff’s

allegations. Plaintiff assumes that Defendant Burkholder is retaliating against him for a

grievance that was filed over a month earlier, which also found that there was no evidence of

Plaintiff’s allegations.”

35

Woods, 60 F.3d at 1166 (quoting Cain, 857 F.2d at 1143 n.6).

10

No. 07-10452

causation on summary judgment have involved a tighter chain of events,36 the

lapse of a month between the filing of his last grievance and the alleged

retaliation does not foreclose a finding of a genuine issue of material fact on the

causation question, particularly given the comments of the guards directly

referring to inmates’ filing of grievances when inmates complained of the purge

fan. Resolving the factual controversies “in favor of the nonmoving party,”37 we

are not persuaded that Defendants were entitled to summary judgment on the

alternative basis that Bibbs failed to adduce sufficient evidence in support of

causation.38

IV

Finally, we move to Bibbs’ motion to join four unnamed defendants who

allegedly could have but failed to turn off the purge fans. Bibbs moved to join

these defendants more than 20 days after the Defendants were served, so the

requested joinder is governed by Rule 21 of the Federal Rules of Civil Procedure,

meaning leave of court was required to amend the complaint.39 When the

district court ruled on Bibbs’ joinder motion, Rule 21 provided that “[p]arties

36

See, e.g., Woods, 60 F.3d at 1162-63 (plaintiff reported a threat from an officer to a

judge “who was presiding over pending prison litigation” and to a warden; three days later he

received a disciplinary charge and was informed “that he would be placed in administrative

lockdown”); Hart, 343 F.3d at 763 (the plaintiff “alleged that, only days after making such

complaints, [one of the defendants] filed a disciplinary report against . . . [him]”).

37

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

38

We note that the magistrate so found, stating, “[B]y his affidavit at Exhibit E . . .

plaintiff provides allegations which a fact-finder could consider sufficient to establish

retaliatory intent and causation.”

39

See Fed. R. Civ. P. 15(a) (providing that “[a] party may amend its pleading once as

a matter of course: (A) before being served with a responsive pleading; or (B) within 20 days

after serving the pleading if a responsive pleading is not allowed and the action is not yet on

the trial calendar”); McLellan v. Miss. Power & Light Co., 526 F.2d 870, 872-73 (5th Cir. 1976),

modified on reh’g on other grounds, 545 F.2d 919 (5th Cir. 1977) (finding that Rule 15 “takes

precedence” over Rule 21 where a party falls within Rule 15 confines – for example, where the

party “attempts to drop or add parties by an amended pleading filed before a responsive

pleading is served”).

11

No. 07-10452

may be dropped or added by order of the court on motion of any party or of its

own initiative at any stage of the action and on such terms as are just.”40 Yet a

“district court has broad discretion in determining the propriety of joining . . . a

particular party as a defendant,”41 and we find no abuse of that discretion here.

Bibbs’ claims in his motion to join were futile,42 as they failed to allege

retaliation or an Eighth Amendment violation. Bibbs did not allege that the

unnamed four officers – when they were allegedly present during the cold prison

conditions and failed to correct them – were aware of his having previously

exercised a constitutional right; he thus failed to allege or adduce evidence of a

chronology of events from which retaliation could be inferred. Furthermore, the

cold he experienced, although sufficient to raise a fact question as to retaliation,

does not rise to the level of “extreme cold” from which prisoners are protected

under the Eighth Amendment. Unlike the inmates in Palmer,43 Bibbs had two

blankets and was able to put on all of his clothes to abate partially the alleged

harsh temperature.

V

For the reasons stated above, we REVERSE and REMAND.

40

Fed. R. Civ. P. 21 (2007) (amended Dec. 1, 2007).

41

Williams v. Hoyt, 556 F.2d 1336, 1341 (5th Cir. 1977) (citing Gentry v. Smith, 487

F.2d 571 (5th Cir. 1973)).

42

See United States ex rel. Adrian v. Regents of Univ. of Cal., 363 F.3d 398, 403 (5th Cir.

2004) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962 )) (a court abuses its discretion if it

refuses “outright” to grant leave to amend “without a justification such as . . . ‘futility of

amendment’”).

43

See supra note 25.

12