Thaddeus-X and Earnest Bell, Jr. v. Blatter

SUHRHE INRICH, Circuit Judge,

concurring in part and dissenting in part.

I.

This case, which countenances a prisoner’s complaint about cold food, perfectly illustrates the illogic of prisoner retaliation claims. As Chief Justice Rehnquist observed in his dissent in Crawford-El:

If the purpose of § 1983 is to “deter some state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails,” it is hard to see how that purpose is substantially advanced if petitioner’s suit is allowed to proceed. Petitioner has already fully exercised his “federally guaranteed right.” Providing compensation to him, even if his claim is meritorious, will foster increased constitutional freedoms only for the hypothetical subsequent individual, who, given the imposition of liability in this case, will not be deterred from exercising his First Amendment rights out of fear that respondent would retaliate....

Crawford-El v. Britton, 523 U.S. 574 , 118 S.Ct. 1584, 1602 , 140 L.Ed.2d 759 (1998) (Rehnquist, J., dissenting) (quoting Wyatt v. Cole, 504 U.S. 158, 161 , 112 S.Ct. 1827 , 118 L.Ed.2d 504 (1992)). Furthermore, the majority opinion in this case needlessly expands Crawford-El . I therefore dissent as to sections III.B.l. and III.B.2.

II.

In III.B.2. of its opinion, the majority remands to the district court the question of whether the prospect of cold food would deter a prisoner of ordinary firmness from exercising his right to access the courts. Under the majority opinion’s newly-formulated test, there can be only one answer:, as a matter of law, the threat of being served cold food cannot possibly deter the average convicted criminal from filing a lawsuit.

*404 Such “harassment” cannot reasonably be said to deter the average citizen of ordinary firmness. Two-thirds of most American meals are typically eaten cold. Cold cereal or a bagel for breakfast and a sandwich for lunch are standard American fare. Our military defends the nation in times of war on a-diet of cold food rations. And cold food is not always a matter of expediency. Steak tartare and shrimp cocktail, served in the finest restaurants, are served cold. One man’s vichyssiose is another man’s cold potato soup.

In short, it is absurd to think that being served cold food, even on a long-term basis, might “chill” anyone — criminal or noncriminal — from filing a lawsuit. If anything, such a holding “would trivialize the First Amendment.” See Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982). Judge Posner’s observations bear repeating:

Yet even in the field of constitutional torts de minimis non curat lex. Section 1983 is a tort statute. A tort to be actionable requires injury. It would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise ....

Id; see also Ingraham v. Wright, 430 U.S. 651, 674 , 97 S.Ct. 1401 , 51 L.Ed.2d 711 (1977) (“There is, of course, a de minimis level of imposition with which the Constitution is not concerned.”).

Furthermore, cold food apparently is an ordinary incident in prison life. See, e.g., Dean v. Campbell, No. 97-5955, 1998 WL 466137 , at *2 (6th Cir. July 30, 1998) (per curiam) (holding that allegation of cold meals for a short period of time “failfed] to allege facts showing that [prisoner] was subjected to the type of extreme deprivations which are necessary for an Eighth Amendment conditions of confinement claim”); Johnson v. Horn, 150 F.3d 276, 282 (3d Cir.1998) (holding that serving cold instead of hot kosher food to inmate did not violate prisoner’s First Amendment rights); Brown-El v. Delo, 969 F.2d 644, 648 (8th Cir.1992) (holding that prisoner’s constitutional rights were not violated when he was served cold food); Madyun v. Thompson, 657 F.2d 868, 874-75 (7th Cir.1981) (holding that allegation that food served to segregated prisoners was cold and not on menu served to general prison population was insufficient to state an Eighth Amendment claim); McCrary v. Delo, No. 93-3800, 1994 WL 706548 (8th Cir. Dec. 21, 1994) (per curiam) (holding that serving cold food to prisoner for three days was not cruel and unusual punishment); Prophete v. Gilless, 869 F.Supp. 537, 538 (W.D.Tenn. Nov.15, 1994) (holding that cold food does not pose danger to inmate health and thus does not constitute deprivation of necessity of life); Smith v. Copeland, 892 F.Supp. 1218, 1229 (E.D.Mo.1995) (holding that diet of only cold food, in and of itself, does not offend the Constitution), aff'd, 87 F.3d 265 (8th Cir.1996); Dillard v. DeTella, No. 95-5575, 1998 WL 111704 (N.D.Ill. March 12, 1998) (dismissing prisoner’s claim in its entirety, including claim that he was served cold food and no utensils); Cruz v. Jackson, No. 94 Civ. 2600, 1997 WL 45348 (S.D.N.Y. Feb. 5, 1997) (holding that prisoner’s allegation that he was served cold food for four months was insufficient to give rise to claim under Eighth Ainendment); Ivy v. Washington, No. 96 C 3012, 1996 WL 685455 (N.D.Ill. Nov. 25, 1996) (holding that claim of being served cold food does not state a violation of the Eighth Amendment); Williams v. Washington, No. 95 C 5126, 1996 WL 137670 (N.D.Ill. March 25, 1996) (holding that receiving meals delivered cold did not exceed deprivations one could expect from prison life); Vinegar v. Fairman, No. 95 C 844, 1995 WL 769758 (N.D.Ill. Dec. 29, 1995) (rejecting claim that being served cold food violated the Eighth Amendment; noting that the Constitution requires only that inmates receive adequate nutrition); Fisher v. Department of Correction, No. 92 Civ. 6037(LAP), 1995 WL 608379 (S.D.N.Y. Oct.16, 1995) (hold *405 ing that prisoner’s claim that his food was sometimes cold did not rise to the level of a constitutional violation); Flournoy v. Sheahan, No. 93 C 1983, 1994 WL 605584 (N.D.Ill. Nov. 2, 1994) (holding that being served cold food is not a constitutional violation); Watson v. Sheahan, No. 93 C 1871, 1994 WL 95782 (N.D.Ill. March 18, 1994) (ruling that prisoner “has failed to explain how the alleged conditions of eating cold food without certain utensils while standing up or sitting on the floor present an immediate danger to his health”); cf. Cunningham v. Jones, 567 F.2d 653, 659-660 (6th Cir.1977) (observing that complaints about the preparation or quality of prison food “would generally be far removed from Eighth Amendment concerns”).

As the majority stresses, “context matters.” Plaintiffs here are not average citizens, but convicted criminals, and therefore “cannot expect the amenities, conveniences and services of a good hotel.” Har ris v. Fleming, 839 F.2d 1232, 1235 (7th Cir.1988). As the majority holds, this is an “objective inquiry” which we can, and should, be decided as a matter of law without further resort to the district court. I would therefore affirm the district court’s dismissal of Bell’s retaliation claim against defendant Kara-zim. For these reasons I dissent from III.B.2.

III.

I also disagree with the majority’s discussion in III.B.l. dealing with Thaddeus-X’s protected conduct. As the majority opinion makes clear, a retaliation claim is premised upon the exercise of a protected right. Here, the protected right is the right to access the courts. As the majority recognizes, Thaddeus-X’S protected right, and therefore his retaliation claim, are derivative of Bell’s: “only if X’s assistance is necessary to vindicate Bell’s right of access to the courts can X too, state a claim of retaliation.” Maj. Op., at ¶ 44.

In establishing the source of Thaddeus-X’s derivative right, the majority continues that “Plaintiff Bell avers and the complaint suggests that Bell has no knowledge of the law and is unable to access the court in any meaningful way absent plaintiff X’s assistance.” Id. at ¶45. This allegation fails to satisfy the actual injury requirement of Lewis v. Casey, 518 U.S. 343 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 (1996) because it does not allege that Bell was prevented from pursuing or defending any particular claim, let alone a direct appeal, habeas, or § 1983 action. See Lewis, 518 U.S. at 355 , 116 S.Ct. 2174 (Scalia, J., dissenting). As the majority notes, the right to access the courts is not a generalized “right to litigate,” but rather a carefully circumscribed right. As the Supreme Court held in Lewis :

Because Bounds [Bounds v. Smith, 430 U.S. 817 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 (1977) ] did not create an abstract, free-standing right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is sub-par in some theoretical sense.... Insofar as the right vindicated by Bounds is concerned, “meaningful access to the courts is the touchstone, ... and the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. He might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable to file a complaint.

Lewis, 518 U.S. at 351 , 116 S.Ct. 2174 .

The majority forgets that it affirms the district court’s dismissal of Thaddeus-X’s *406 and Bell’s access to courts claim. 1 Thus, other than helping Bell file a lawsuit, Thaddeus-X has not shown that he engaged in protected conduct so as to maintain a retaliation claim. 2 Thaddeus-X’s retaliation claim should therefore be limited to his assistance in helping Bell file a lawsuit. Ironically, the majority has essentially accorded greater First Amendment protections to Thaddeus-X than to Bell himself. Thus, to the extent the majority recognizes a discrimination claim that is premised upon Thaddeus-X’s generalized right to help Bell file inchoate lawsuits, it is contrary to law.

IV.

As noted above, I simply fail to see the logic of Crawford-El . Like Justice Rehnquist, I simply cannot understand why we are affording heightened protection to prisoners on a “subspecies of First Amendment claims,” id. at 1601; when the alleged acts, standing alone, “would seem to be about as far from a violation of the First Amendment as can be conceived,” id., and the prisoner has in fact not been prevented from exercising his First Amendment rights. We do not hesitate in holding that prisoners are entitled to diminished constitutional protections on direct First and Eighth Amendment claims. Yet we allow a prisoner, by mere recitation of an illicit motive, to “transform! ] a routine act in the course of prison administration into a constitutional tort.” Id. In short, I do not think Crawford-El is faithful to § 1983. See Crawfordr-El, 118 S.Ct. at 1604 (Scalia, J., dissenting) (remarking that in his view, “no ‘intent-based’ constitutional tort would have been actionable under the § 1983 that Congress enacted”).

I therefore dissent from parts III.B.l. and III.B.2.. As to the remainder of the opinion, I concur in the result only.

. In the original panel decision, the court reasoned that dismissal was proper because Thaddeus-X and Bell had failed to show actual prejudice. Although Bell had alleged that he was unable to respond to a magistrate judge’s report and recommendation denying him a temporary restraining order, the panel found no actual injury alleged because "plaintiffs have provided no information about this case, such as whether the court eventually granted the T.R.O., or whether the request for one was frivolous...."

. This same criticism applies to the statement in footnote 10 regarding Thaddeus-X’s claims that "some of the alleged retaliation resulted from his helping inmates other than Bell.... ”