# Thaddeus-X and Earnest Bell, Jr. v. Blatter > Court of Appeals for the Sixth Circuit · March 8, 1999 · 175 F.3d 378 URL: https://www.frixlaw.com/law-library/cases/9492115 ## Case - **Full name:** THADDEUS-X and Earnest Bell, Jr., Plaintiffs-Appellants, v. BLATTER, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** March 8, 1999 - **Citations:** 175 F.3d 378; 1999 U.S. App. LEXIS 3497; 1999 WL 114379 - **Precedential status:** Published - **Opinion:** Concurring in part by Kennedy - **Judges:** Inrich, Martin, Engel, Merritt, Kennedy, Nelson, Ryan, Boggs, Norris, Surheinrich, Siler, Batchelder, Daughtrey, Moore, Cole, Clay, Gilman - **Cited by:** 2,661 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Declined to follow by Friedl v. City of New York, 210 F.3d 79 (2000). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492115 ## How later opinions describe it (automated extraction) - 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 conn… - 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… - 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 ac… - 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 pursu… - finding that, just as “ ‘[protected 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… ## Opinion text KENNEDY, Circuit Judge, concurring in part and dissenting in part. I concur with Judge Suhrheinrich that Bed’s complaint that Karazim served him cold food and refused to reheat his food does not rise to the level of conduct which would deter an average convicted prisoner from filing a lawsuit. The only other claim Bell makes against Karazim (he makes no claims against the other defendants) is that Karazim, who had no responsibility for transferring legal material between Bell and Thaddeus X but had nonetheless done so, refused to do so after Thaddeus X was moved to base. The average prisoner would not be deterred from filing a lawsuit because a correctional officer ceased to do more than was required by his job. If correctional officers are held liable under these circumstances, correctional officers will be highly unlikely to do anything more than the strict requirements of their specific jobs. I concur in the majority’s adoption of the Seventh Circuit’s standard stated in Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982) that an adverse action is one that would “deter a person of ordinary firmness” from the exercise of the right at stake. I would, however, add to it the limiting strictures the Supreme Court adopted in Sandin v. Conner, 515 U.S. 472, 482-83 , 115 S.Ct. 2293 , 132 L.Ed.2d 418 (1995). While it is unlikely that actions that are within the Sandin limits would deter a prisoner from filing a lawsuit, I believe if we are adopting a policy it should have this limitation. I concur that the summary judgment in favor of Karazim should be reversed on Thaddeus X’s claim. Thaddeus X’s affidavit states that Karazim told him he would have him transferred to base in retaliation for assisting Bell in his lawsuit. While Karazim’s affidavit states that he was merely following the written orders of Sergeant Tamminga, not defendant, there is an issue of fact as to who was responsible for the move. With respect to the remaining defendants, I would affirm the summary judgment. The only conduct on their part that would deter a prisoner from filing a lawsuit is transferring Thaddeus X to base and his consequent incarceration there. There is no allegation that Graham, Bild-ner, or Blatter did more than carry out Tamminga’s order in moving Thaddeus X to base. Nor do the circumstances permit a factfinder to conclude that they would have acted any differently had Thaddeus X been a favorite prisoner whom they wished to help in any way possible. There is simply no basis for a factfinder to find these defendants removed Thaddeus X to base in retaliation for anything. I cannot agree that defendants Graham, Bildner, and Blatter can be held liable for carrying out their superior’s order to move Plaintiff X to base. The majority holds that they may not rely on a superior’s order. In Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34 (2d Cir.1985), cited by the majority, the Second Circuit held that a police officer who arrested the plaintiff at the order of a sergeant had potential liability under section 1983, “both for making the arrest without a good faith belief ‘that the order imparted to him by [the sergeant] was a lawful order,’ and for knowingly making false or incomplete statements on the accusatory instrument.” Id. at 38 . Plaintiff X makes no such assertion here. He did not sue Sergeant Tamminga, who issued the order to move him to base. There is no allegation that the order was illegal, let alone that any of these three defendants knew or should have known it was illegal. While conditions alleged on base may have been deplorable, I do not believe they were so deplorable that a correctional employee would know that they violated the Eighth Amendment. Numerous other prisoners were housed there. These officers were not responsible for the conditions on base *409 nor is it alleged they had authority to move Plaintiff X elsewhere. While the question of whether there is probable cause to arrest, the issue in Ray-sor, is often a difficult one, it is one that police officers are charged with applying daily. Whether conditions in a prison violate the Eighth Amendment is not one which prison guards are expected to determine before carrying out orders. While Forsyth v. Kleindienst, 599 F.2d 1203, 1216-17 (3d Cir.1979), also cited by the majority, does indeed hold that following orders does not entitle FBI agents to absolute immunity, that does not seem to be the issue here. The officers here are not claiming absolute immunity. As I understand their position and that of the district court, it is that there was no obligation when following orders for them to evaluate the conditions on base (good faith immunity) or at the very least it was not clearly established that they must do so. The third case relied on by the majority, Villanueva v. George, 659 F.2d 851 (8th Cir.1981), is particularly instructive. Villa-nueva, a pretrial detainee, was housed in maximum security. The court held that a jury could find that two of the correctional officers, whose duties included day-to-day supervision of plaintiff, could be held liable for failing to remedy the unconstitutional conditions of confinement. The court noted that the district judge properly directed verdicts for the other correctional officers. The district court properly directed verdicts for Shannon and George. Since the record clearly establishes that these two individuals were not charged with the personal supervision of the appellant, nor chiefly responsible for the control of inmates at Gumbo, they may not be held legally accountable for the conditions of Villanueva’s confinement. An institution may charge certain individuals with the duty to supervise inmates. Moreover, an individual may personally undertake such a duty by his very actions, or a state may statutorily impose such a duty. See e.g., Mo.Ann.Stat. § 221.020 (Vernon); Tatum v. Houser, 642 F.2d 253, 254 (8th Cir.1981) (Sheriff is responsible for the conditions of confinement in the jails within his county even absent specific knowledge of unconstitutional conduct). Since no duty arose that would obligate Shannon or George to act, their failure to act cannot result in liability. Id. at 855 n. 1. In moving Plaintiff X to base, Graham, Bildner, and Blatter would seem to fall into the category of the officers who were dismissed in Villanueva . None of the other actions of these three defendants recited in Thaddeus X’s affidavit would deter a prisoner from filing a lawsuit. Since the defendants filed affidavits denying Thaddeus X’s allegations, with the exception of the allegation that they moved him to base, we must look at his affidavit to see if issues of fact remain. Thaddeus X claims Blatter told him that he was being moved because he had filed too many grievances and lawsuits, (¶ 7. of Dec. 5, 1994 affidavit — J.A. at 69), that all defendants refused to pass some legal papers to Bell after Thaddeus X was on base, that when he was placed in the cell on base he asked Bildner, Blatter, and Graham for cleaning supplies and was refused, and that two nurses asked Blatter to move Thaddeus X off base because he should not be with the mentally ill prisoners. To the extent that telling him the reason for his move would deter him from filing a lawsuit, it would not seem that such a statement, if true, could be made in retaliation for previously filed lawsuits. It should be noted that Thaddeus X at one point filed a motion to dismiss Blatter, which the district court did not grant because the motion was not signed. Since defendants’ affidavits state that it is the responsibility of counselors to transfer and provide legal materials, a fact which Thaddeus X does not controvert in his subsequent affidavit, the refusal of these defendants to perform that service, *410 even if in retaliation, would not deter the ordinary prisoner from filing a lawsuit. Thaddeus X’s complaint also alleges that Blatter told him, when he came to move him to base, that he had an authorization to use gas if plaintiff refused to be moved. Advising a prisoner that he had such an authorization would seem to be one of the incidents of prison life to be expected under Sandin . Indeed, using gas without telling the prisoner that it was authorized would seem to be the conduct that should be criticized. I would, therefore, affirm the summary judgments in favor of these three defendants. With respect to Thaddeus X’s claims against Karazim, I concur in Judge Merritt’s separate opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492115. Public record. Not legal advice.