holding that a claim for retaliation requires a prisoner to establish that (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) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by the plaintiff’s protected conduct”
How later courts described this case
- holding that a claim for retaliation requires a prisoner to establish that (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) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by the plaintiff’s protected conduct”
- explaining that an inmate states a claim for retaliation when he establishes that: (1) the plaintiff engaged in constitutionally protected conduct; (2) an adverse action was taken against the plaintiff 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 the plaintiff’s protected conduct
- holding that a prisoner’s right to petition the I must acknowledge, to be sure, that the Valot plaintiffs – government for redress of grievances is not subject to the untenured substitute bus drivers – were sometime employees public concern limitation imposed in free speech actions of the public body that stood accused of having retaliated involving public employees
- finding that, just as “‘[p]rotected conduct’ in the statutory settings is . . . that conduct which the statute defines as protected[,] . . . certain provisions of the Constitution define individual rights with which the government generally cannot interfere—actions taken pursuant to those rights are ‘protected’ by the Constitution”
Written by the judges who cited it.
Later courts went against this
Declined to follow by Friedl v. City of New York, 210 F.3d 79 (2000)
Nothing in Lewis forecloses an administrative challenge by a prisoner to the conditions of his confinement, and we decline to follow the restrictive interpretation placed on Lewis by the Sixth Circuit in Thaddeus-X, since not every “challenge to the conditions of confinement” takes the form of a civil rights action.
The opinion
MERRITT, Circuit Judge,
concurring in part and dissenting in part.
This prisoner case is controlled by the Supreme Court’s recent opinion in Crawford-El v. Britton, 523 U.S. 574 , 118 S.Ct. 1584 , 140 L.Ed.2d 759 (1998), which had not been decided when the District Court ruled in the instant case three years ago. In Crawfordr-El, according to the Court’s statement of the facts, “a litigious and outspoken prisoner” had “filed several lawsuits and ... assisted other prisoners with their cases.” Id. at 1587. Like Bell and Thaddeus-X in the instant case, he sued a prison official under § 1983 alleging specific acts of retaliation designed to “punish him for exercising his First Amendment rights [of access to the courts] and to deter similar conduct in the future.” Id. The D.C. Circuit had held that in “an unconstitutional-motive case, the plaintiff must establish that motive by clear and convincing evidence.” Id. at 1589. The Supreme Court reversed, holding that it is unnecessary in such a retaliation case claiming deprivation of access to the courts for the prisoner to establish his ease by a heightened “clear and convincing” standard of proof. Both the majority opinion and the dissenting opinion in the Supreme Court clearly agree on the particular point our Court decides here: that such a retaliation suit presents a valid constitutional claim of denial of the right of access to the courts. The only difference between the majority and the dissent goes to the question of qualified immunity. Chief Justice Rehnquist’s dissent, quoted below, proposes a *407 broader test of immunity for prison officials than the majority:
Under this test, when a plaintiff alleges that an official’s action was taken with an unconstitutional or otherwise unlawful motive, the defendant will be entitled to immunity and immediate dismissal of the suit if he can offer a lawful reason for his action and the plaintiff cannot establish, through objective evidence, that the offered reason is actually a pretext.
Id. at 1600.
In the instant case the defendant prison officials as yet have offered no explanation or reasons for their actions against Bell and Thaddeus-X, either pretextual or otherwise. The Crawfordr-El case establishes a cause of action for deprivation of the right of access under the First Amendment in such prisoner retaliation situations, and the defendant prison officials have not at this point asserted facts giving rise to a valid claim of qualified immunity. I therefore see no need for the long discussion in Section III of our Court’s opinion, a discussion that seems to me both unnecessary and likely to come back to haunt us in the future.
For example in subsection III.B.l, “Protected Conduct,” the Court states that “if X’s [the jailhouse lawyer’s] assistance is necessary to vindicate Bell’s right of access to the courts,” “X too [can] state a claim of retaliation.” The Court then finds the assistance “necessary” because “Bell has no knowledge of the law” and he “cannot receive the proper legal advice because the law librarians are not trained in any type of law nor do they have a degree in law.” I do not believe that an “uneducated” prisoner so situated has a constitutional right to a jailhouse lawyer and that every such jailhouse lawyer has a constitutional right to represent such fellow prisoners. The Court gives no source for such an unprecedented set of prisoner rights based on ignorance. This statement in the Court’s opinion is likely to produce an unending stream of cases as “uneducated” prisoners and jailhouse lawyers assert their new constitutional right of representation. Thousands of new prisoner petitions may flood the courts as “uneducated” prisoners and jailhouse lawyers seek injunctions and damages to enforce what the court appears to say is a new constitutional right of prison representation.
Instead of creating such a broad substantive right, we should simply apply the reasoning of San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir.1994). In the instant case, the prison officials, pursuant to their own regulations and official prison policy, approved a form allowing Thaddeus-X to represent Bell. Once the prison officials through their own actions had set up a procedural system for Thaddeus-X to represent Bell and had approved the representation in writing, they could not then withdraw this right in retaliation for a lawsuit that criticized prison officials. As the San Filippo case cogently explains, such retaliation against an actor for using the legal processes previously established administratively violates the right of access provision of the First Amendment.
In view of the clarification of the law that the Crawfordr-El case represents, I would remand this case to the District Court with instructions to stay further proceedings while the prisoners exhaust their prison administrative remedies, as required by 42 U.S.C. § 1997e. The provision requires the exhaustion of all “available” state “administrative remedies” by a prisoner before a federal court should entertain his civil rights action. Exhaustion of such remedies will produce an administrative record of what actually occurred and provide Michigan correction officials with an opportunity to address and redress any wrongful, retaliatory conduct found to have occurred. The Crawfordr-El case clarified the law in prison retaliation cases, and it would be wise for our court to treat this case like we treat other administrative eases when the law is changed or clarified during the pendency of the proceedings— remand the case to the administrative *408 agency for reconsideration in light of the change.