stating that a prisoner asserting a retaliation claim must show “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action”
How later courts described this case
- stating that a prisoner asserting a retaliation claim must show “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action”
- explaining that whether conduct “chilled” a plaintiff's speech “is only a problem where no harm independent of the First Amendment is alleged. For there, the only injury is the chilling itself.”
- concluding that the plaintiff sufficiently alleged an adverse action based on the defendants’ filing of false misbehavior reports in response to the plaintiff’s prior grievance submissions
- holding that inmate’s responding to retaliation for filing grievances “with greater than ‘ordinary firmness’” by filing additional grievances “does.not deprive him of a cause of action”
Written by the judges who cited it.
The opinion
SCULLIN, Chief District Judge,
concurring in judgment.
Although I agree with the majority’s decision to vacate the district court’s judgment dismissing plaintiffs First Amendment retaliation claim and to remand for further proceedings, I write separately because I believe that, on the facts of this case, in order to sustain his retaliation claim, plaintiff must establish that defendants’ actions both objectively and subjectively chilled him from vindicating his First Amendment rights.
In considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, “the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Powell v. Am. Gen. Fin., Inc., 310 F.Supp.2d 481, 483 (N.D.N.Y.2004) (citations omitted). Thus, dismissal is improper unless “ ‘ “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” ’ ” Id. *385 (quotation omitted). Moreover, where the case involves a pro se litigant, “the court must construe the allegations in the complaint liberally and dismiss the complaint only where the litigant could prove no set of facts entitling [him] to relief.” Id. at 483-84 (citation omitted).
Although even applying this liberal standard I, unlike the majority, have some doubt that plaintiff has sufficiently alleged that defendants’ actions — the filing of false misbehavior reports against him and his sentence of three weeks in keeplock— would deter a prisoner of ordinary firmness from vindicating his or her constitutional rights through the grievance process and the courts, I am willing to assume that plaintiff has met his burden for purposes of this discussion. Nonetheless, I do not think that such a showing — in light of the facts of this ease — is sufficient to sustain a First Amendment retaliation claim.
To the contrary, I am convinced that, in the prison setting, the court should distinguish between the retaliation claims of inmate-plaintiffs who do no more than pursue lawsuits or grievances about the incidents that they claim resulted in defendants’ retaliatory conduct and the retaliation claims of inmate-plaintiffs, such as the plaintiff in this case, who, after the alleged retaliatory conduct occurs, continue to file grievances and lawsuits not only with regard to the conduct about which they complain but also with regard to incidents unrelated to those that form the basis for their retaliation claims. 1 In the latter case, the plaintiff should be required to demonstrate that he was subjectively chilled — as well as objectively chilled — as a result of the defendants’ conduct, from vindicating his First Amendment rights.
The facts of this case demonstrate why a showing of subjective chill is appropriate in such cases. First, not to require such a showing, is inconsistent with the well-established principle that courts should approach prisoner claims of retaliation with skepticism. See Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003) (quotation omitted). Moreover, in a case in which the plaintiffs actions, viewed objectively, are totally inconsistent with a finding that the defendants’ actions had any effect whatsoever on his subsequent conduct, he should be required to show to the factfinder’s satisfaction that defendants’ actions did, in fact, chill him from vindicating his First Amendment right to seek redress through the grievance process and the courts. Otherwise, it appears to me, that “the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Dawes v. Walker, 239 F.3d 489, 493 (2d Cir.2001) (citation omitted). This objective inquiry is “ ‘not static across contexts,’ but rather must be ‘tailored to the different circumstances in which retaliation claims arise.’ ” Id. (quotation omitted). 2
As the majority explicitly recognizes, Gill “is no stranger either to the grievance system or to the federal courts.” To allow such a plaintiff to proceed with a First Amendment retaliation claim where the facts clearly do not support a finding that he was subjectively chilled, in effect, permits the plaintiff to maintain such a claim even though he was not actually deterred from exercising his constitutional rights. *386 Not only is such a finding inconsistent with the principle that courts should review prisoner claims of retaliation with some degree of skepticism, it ignores the fact that, absent a showing that he has suffered a specific injury as a result of the defendants’ conduct, a plaintiff lacks standing to pursue his claim. See, e.g., Colombo v. O’Connell, 310 F.3d 115, 117 (2d Cir.2002); Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir.2001); Spear v. Town of W. Hartford, 954 F.2d 63 , 68 (2d Cir.1992).
Accordingly, although I concur with the majority’s decision, I respectfully dissent from its reasoning.
. As the district court noted, plaintiff commenced at least four additional lawsuits and at least thirty-five institutional grievances against the Department of Correctional Services and its employees since the asserted retaliation occurred.
. I acknowledge that the Dawes court made these comments when discussing the "objective inquiry," but I believe that they are equally applicable to a "subjective inquiry.”