Appendix — Crowley v. Brown

TABLE OF CONTENTS

Page

Sixth Circuit Court of Appeals Opinion (Docket

No. 01-1541) dated November 27, 2002 ..............0++ la-47a

Sixth Circuit Court of Appeals Order (Docket

No. 01-1541) filed January 28, 2003 ..............:ee00 48a-49a

United States District Court Opinion and Order

: Approving Magistrate Judge's Report and

Recommendation and Judgment (Docket

No. 2:98-cv-122) dated April 9, 2001..............:004 59a-55a

Sixth Circuit Court of Appeals Opinion (Docket

No. 99-2216) dated August 10, 2000...............::0000 56a-62a

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RECOMMENDED FOR F ULL- TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2002 FED App. 0409P (6th Cir.)

File Name: 02a0409p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Cleveland Brown,

Plaintiff-Appellant,

No. 01-1541

V.

Michael J. Crowley, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Michigan at Marquette.

No. 98-00122--Robert Holmes Bell, Chief District Judge.

Submitted: August 7, 2002

Decided and Filed: November 27, 2002

Before: MOORE and GILMAN, Circuit Judges; ROSEN,

District Judge.”

COUNSEL

ON BRIEF: Patrick J. Wright, OFFICE OF THE

ATTORNEY GENERAL, CORRECTIONS DIVISION,

* The Honorable Gerald E. Rosen, United States District Judge for the

Eastern District of Michigan, sitting by designation.

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Lansing, Michigan, for Appellee. Cleveland Brown, Ionia,

Michigan, pro se.

GILMAN, J., delivered the opinion of the court, in which

MOORE, J., joined. ROSEN, D. J. (pp. 18-46), delivered a

separate dissenting opinion.

OPINION

RONALD LEE GILMAN, Circuit Judge. After Cleveland

Brown, a Michigan prisoner, was transferred from one prison

to another, he was informed that he owed a balance on his

personal account with the former prison. Funds were then

removed from Brown's prison trust account to cover the debt.

Yet when Brown was subsequently transferred to other

Michigan prisons in later years, he continued to receive notices

regarding the same debt. Brown attempted to rectify the

situation by filing grievances each time he received a notice,

but his efforts were unsuccessful. He finally wrote a Michigan

State Police official to request that criminal charges be brought

against various prison officials for embezzlement of his funds.

His request was referred to the Internal Affairs Department of

the Michigan Department of Corrections (MDOC), which

decided that his complaint was meritless. Brown was

subsequently issued a major misconduct charge for filing a

false complaint. He was later acquitted of the charge by a

hearing officer.

In June of 1998, Brown filed suit against a number of

MDOC officials pursuant to 42 U.S.C. § 1983. Brown claimed

that the defendants violated his constitutional rights under the

Equal Protection Clause, the Due Process Clause, the First

Amendment, and the Eighth Amendment. The district court

dismissed several of Brown's claims sua sponte, and the

defendants were later granted summary judgment on the

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remaining claims. This court, in a prior appeal, vacated the

district court's dismissal of Brown's retaliation claim and

remanded for further proceedings. On remand, the district court

granted the defendants' motion for summary judgment on the

retaliation claim. For the reasons set forth below, we

VACATE the judgment of the district court and REMAND

the case once again for further proceedings consistent with this

opinion.

I. BACKGROUND

A. Factual background

In February of 1995, Brown was transferred from Ryan

Correctional Facility (Ryan) to the Marquette Branch Prison

(Marquette). Brown was later informed that Ryan had sent a

notice ‘to Marquette stating that he owed $51.24. After

concluding that Brown did in fact owe the $51.24, Marquette

Business Office Secretary Susan Bianchi requested Marquette

Accountant S. Laine to deduct that amount from Brown's

prison trust account. Bianchi subsequently told Brown that the

debt had been paid.

Brown was later charged an additional $18.00 for a debt

that he allegedly owed to Southem Michigai: Prison. He

contends, however, that this amount had already been included

in the $51.24 that was paid to Ryan. When Brown questioned

the debt, Bianchi informed him that the $18.00 debt was part of

a different transaction.

After Brown's attempts to obtain records pertaining to his

Ryan debt were unsuccessful, he filed « grievance. Brown's

grievance was answered by the grievance coordinator at Ryan,

Cindy Thorton. Thorton stated that, of the $51.24 paid to Ryan,

$4.91 was for an indigent loan, and the remaining $46.33 was

the amount that had been overdrawn from Brown's prison

account.

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Brown was subsequently transferred from Marquette to

Standish Maximum Correctional Facility (Standish). When

Brown received a second notice regarding the $18.00 debt, he

filed a grievance requesting an itemized statement of the

amount owed. At Standish, Brown also continued to receive

notices that he owed the $51.24 debt that had been paid while

he was imprisoned at Marquette.

Brown was then transferred once again, this time from

Standish to Baraga Maximum Correctional Facility (Baraga).

After he was transferred, the Baraga accounting office

informed Brown that Ryan was still claiming that he owed

$51.24. In January of 1998, Brown filed still another grievance

and wrote to Baraga Case Manager Daniel Lesatz regarding the

situation. A few days later he wrote a second letter to Lesatz.

He also wrote contemporaneous letters regarding the matter to

Baraga Accountant Toni Joki and Baraga Warden Michael

Crowley. Two days later, he sent copies of the pertinent

records to Baraga Resident Unit Manager William Leutzow to

try to resolve the matter. Leutzow, however, returned these

documents to Brown and told him that he should contact Ryan

directly.

Lesatz later denied Brown's January 1998 grievance on the

basis that it was duplicative of grievances that Brown had filed

in 1996 and 1997. This caused Brown to send a Step Il

grievance appeal to Baraga Warden Crowley, contending that

his grievance was not redundant because a duplicate deduction

had been made from his prison account. After the matter was

investigated, Crowley iold Brown that the $51.24 debt had

been reduced to $6.16, and that the matter would be resolved

when that amount was paid. Although Brown requested copies

of the investigation reports, he never received a response.

Brown then sent a Step III grievance appeal to MDOC Director

Kenneth McGinnis, but his appeal was denied.

At this point, Brown wrote Michigan State Police

Lieutenant Colonel Alan K. Anderson to request that criminal

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charges be brought against the above-mentioned prison

officials for embezzlement of his funds. Anderson submitted

the matter to the Internal Affairs Department of the MDOC.

Brown subsequently received a letter from MDOC Internal

Affairs Manager Jack L. Hall, stating that his complaint had

been investigated and that it lacked merit.

In April of 1998, Regional Prison Administrator Richard E.

Johnson wrote a letter to Warden Crowley to request that

Brown be issued a major misconduct charge for filing a false

complaint. At Crowley's direction, Case Manager Lesatz then

issued the charge against Brown for "interference with the

administration of rules." The misconduct charge stated that an

investigation had determined that Brown still had an

outstanding debt. Because Brown was already being housed in

administrative segregation, no further restrictions were

imposed on him as a result of the misconduct charge.

After a hearing, Brown was found "not guilty" of the

charge. The hearing officer concluded that the evidence was

insufficient to show that Brown had deliberately filed false

allegations. Furthermore, the hearing officer concluded that

Brown's belief that someone was improperly taking money

from his account was not unreasonable.

B. Procedural background

In June of 1998, Brown filed this suit in the United States

District Court for the Western District of Michigan against a

number of the above-mentioned MDOC officials. Brown

claimed that the defendants: (1) discriminated against him

because he is African-American, (2) denied him due process by

overcharging his prison account for amounts due as he was

transferred between different facilities within the Michigan

prison system, (3) violated the Eighth Amendment's

prohibition against cruel and unusual punishment because he

had no money left for basic hygiene products such as shampoo

or toothpaste, and (4) impeded his First Amendment rights by

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denying him contact with his family because he could not

afford stamps. Furthermore, in the "statement of facts"

appended to his pro se complaint, Brown asserted that the

major misconduct charge was issued "in retaliation for seeking

to get redress for the (MDOC's) violations of my rights."

Brown later filed a motion to amend his complaint to add a

number of other defendants.

On August 3, 1998, the magistrate judge to whom Brown's

case was referred recommended that his claims be dismissed

for the following reasons: (1) his equal protection claim was

frivolous, (2) he had failed to state a due process claim upon

which relief could be granted, and (3) he had failed to exhaust

his administrative remedies with regard to his First and Eighth

Amendment claims. The magistrate judge apparently did not

construe Brown's complaint as setting forth a retaliation claim.

On September 1, 1998, Brown filed objections to the

magistrate judge's Report and Recommendation. Brown

reiterated his retaliation claim in these objections by arguing

that the defendants punished him "in violation of the plaintiff's

First Amendment right in retaliation for his reporting their

actions." On October 5, 1998, the district court approved in

part and rejected in part the magistrate judge's Report and

Recommendation. The district court dismissed Brown's equal

protection and due process claims, but left standing his First

and Eighth Amendment claims. Like the magistrate judge, the

district court did not directly address Brown's retaliation claim.

The defendants then filed a motion for summary judgment

on Brown's remaining claims. In their motion for summary

judgment, the defendants requested dismissal of Brown's

complaint on the grounds that they were entitled to qualified

and Eleventh Amendment immunity. The defendants

specifically denied the “apparent retaliatory conspiracy" that

Brown claimed had occurred. Brown filed a cross-motion for

summary judgment on April 23, 1999, in which he developed.

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his retaliation claim and addressed the defenses that the

defendants had asserted.

In his Report and Recommendation dated July 30, 1999, the

magistrate judge concluded that the defendants' motion for

summary judgment should be granted. The magistrate judge

directly addressed Brown's retaliation claim and concluded that

Brown "fails to allege any specific facts in support of his claim

that the misconduct charge was motivated by retaliatory

animus," and that "[t]here is no indication that the misconduct

[charge] was motivated by an improper desire to retaliate

against plaintiff." On August 30, 1999, the district court

adopted the Report and Recommendation and dismissed the

case in its entirety.

In August of 2000, this court vacated the district court's

dismissal of Brown's retaliation claim and remanded for further

proceedings after concluding that Brown had alleged facts

sufficient to state a viable claim under the standard set forth in

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en

banc). The district court's judgment was affirmed in all other

respects. Brown v. Crowley, No. 99-2216, 2000 WL 1175615

(6th Cir. Aug. 10, 2000) (unpublished table decision).

After the case was remanded, the two remaining defendants,

Warden Crowley and Case Manager Lesatz, filed an answer to

Brown's complaint. In their answer, the defendants raised the

affirmative defense of "immunity." Brown subsequently filed a

motion to amend his complaint to add five defendants. On

January 17, 2001, the defendants filed a motion for dismissal

or for summary judgment. In their motion, however, the

defendants did not argue for dismissal or summary judgment

on the ground of qualified immunity.

The magistrate judge recommended that the defendants’

motion for summary judgment be granted on the basis that

Brown had failed to establish all of the required elements of a

retaliation claim. Over Brown's objections, the district court

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adopted the magistrate judge's Report and Recommendation.

Brown's motion to amend his complaint was then denied as

moot. Neither the magistrate judge nor the district court

addressed the issue of qualified immunity in granting the

defendants’ motion for summary judgment. This timely appeal

followed.

Il. ANALYSIS

A. Retaliation claim

On appeal, Brown argues that the district court erred in

granting summary judgment to the defendants on his retaliation

claim.‘ A district court's grant of summary judgment is

reviewed de novo. Holloway v. Brush, 220 F.3d 767, 772 (6th

Cir. 2000). Summary judgment is proper where no genuine

issue of material fact exists and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). In

considering such a motion, the court must view the evidence

and draw all reasonable inferences in favor of the nonmoving

party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). The central issue is "whether the

evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52 (1986).

This court has held that retaliation against a prisoner based

upon his exercise of a constitutional right violates the

Constitution. Thaddeus-X, 175 F.3d at 394 (holding that

genuine issues of material fact precluded summary judgment

on a retaliation claim involving a prisoner's right of access to

the courts). A retaliation claim has three elements:

(1) the plaintiff engaged in protected conduct;

(2) an adverse action was taken against the

plaintiff that would deter a person of ordinary

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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.

Id. at 394. If the prisoner is able to prove that his exercise of

the protected right was a substantial or motivating factor in the

defendant's alleged retaliatory conduct, the burden shifts to the

defendant to show that the same action would have been taken

even absent the protected conduct. /d. at 399.

The defendants argue that the Thaddeus-X standard does not

apply to this case because the incidents in question occurred

before March 8, 1999, the date on which Thaddeus-X was

decided. Instead, they maintain that we should apply the

"shocks the conscience" standard in analyzing their defense of

qualified immunity. Under this standard, the prisoner has to

"establish ‘an egregious abuse of governmental power’ or

behavior that 'shocks the conscience" as a prerequisite to

recovery. Herron v. Harrison, 203 F.3d 410, 414 (6th Cir.

2000).

We need not address this argument, however, because the

defendants did not raise the affirmative defense of qualified

immunity in their motion for summary judgment. Although the

defendants preserved the defense in their first responsive

pleading and in their answer to Brown's complaint, they did not

pursue this argument before the district court in the motion for

summary judgment that they filed after the case was remanded.

The Seventh Circuit has explained that, even if a defendant has

"raised" the affirmative defense in a responsive pleading, "the

defense of qualified immunity may be deemed as waived if not

properly and timely presented before the district court." Walsh

v. Mellas, 837 F.2d 789, 799 (7th Cir. 1988). "[T]he cases

holding that an omission of this character constitutes a waiver

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of the right to present that issue on appeal are legion." Id. at

799-800 ("The mere fact that an obscure reference to fan

affirmative defense] is contained in one of the defendants’

pleadings does not suffice to preserve that issue for appeal.").

We find this reasoning persuasive. See J.C. Wyckoff & Assocs.,

Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1488 (6th Cir.

1991) ("Issues not presented to the district court but raised for

the first time on appeal are not properly before the court."). We

will not, therefore, address the defendants' argument that they

have qualified immunity from Brown's claim.

On the other hand, as we discuss below, the judgment of the

district court must be vacated and the case remanded for

further proceedings, because the district court erred in its

application of the law to Brown's retaliation claim. The

defendants will thus be free to reassert their immunity defenses

in the district court. See English v. Dyke, 23 F.3d 1086, 1090

(6th Cir. 1994) (explaining that a waiver of an official-

immunity defense "need not waive the defense for all purposes

but would generally only waive the defense for the stage at

which the defense should have been asserted").

"[E]very consideration that classically supports the law's

ordinary remand requirement does so here." INS v. Ventura, __

S. Ct. __, No. 02-29, 2002 WL 31444297, at *3 (Nov. 4, 2002)

(per curiam) (listing among those considerations the points that

the lower-level decisionmaker can "bring its expertise to bear

upon the matter; it can evaluate the evidence; it can make an

initial determination; and, in doing so, it can, through informed

discussion and analysis, help a [higher] court later determine

whether its decision" is appropriate). By forcing the defendants

to present the qualified immunity defense to the district court

in the first instance, we ensure that any future appeal in this

case will have the benefit of the district court's analysis of the

issues relating to the defense. We are at a disadvantage,

generally, when we address on appeal an issue that was so

tersely presented to the district court. District courts are far

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more familiar with the factual record in their cases than are the

courts of appeals, and this knowledge can generate useful

insights into the issues surrounding qualified immunity. By

declining to consider qualified immunity defenses on appeal

that were not raised properly before the district court,

moreover, we might encourage future defendants to properly

raise this defense at the district court level.

The dissent nevertheless laments our restraint in declining

to reach the issue of qualified immunity in this particular case,

"where this immunity is certain to be conferred upon remand."

Dissenting Op. at 20. We do not share the dissent's certainty of

outcome. First, it is far from clear that the defendants are

correct in urging their entitlement to immunity under the

"shocks the conscience" standard. See Bell y. Johnson, ___ F.3d

—» No. 01-1286, 2002 WL 31317957, at *14 (6th Cir. Oct. 17,

2002) ("Thus, after Gibbs [v. Hopkins, 10 F.3d 373 (6th Cir.

1993),] we think it clear that an inmate's First Amendment

retaliation claim would be assessed according to the same

standards applied to such claims in the other contexts, rather

than the ‘shock the conscience’ standard applicable to

substantive due process claims."). Even applying the standard

urged by the defendants, moreover, this court has held that a

plaintiff inmate alleged facts showing a conscience-shocking

abuse of power where he asserted that prison guards

maliciously filed false disciplinary charges against him in

retaliation for the exercise of his First Amendment rights. Cale

v. Johnson, 861 F.2d 943, 950 (6th Cir. 1988). Brown has

alleged certain similar circumstances in this case. In short, it is

far from a foregone conclusion that the defendants will be

entitled to qualified immunity upon remand.

We will now proceed to determine whether the defendants

are entitled to summary judgment by applying the standard that

this court announced in Thaddeus-X. The defendants concede

that Brown was engaged in protected conduct when he

complained about the alleged overcharges to his prison

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account. Brown has thus established the first element of a

retaliation claim.

Under Thaddeus-X, the second element requires proof of an

adverse action that would deter a person of ordinary firmness

from continuing to engage in that conduct. This court has

explained that "while certain threats or deprivations are so de

minimis that they do not rise to the level of being constitutional

violations, this threshold is intended to weed out only

inconsequential actions, and is not a means whereby solely

egregious retaliatory acts are allowed to proceed past summary

judgment." Thaddeus-X, 175 F.3d at 398.

The defendants acknowledge that prisoners who are subject

to a major misconduct charge are generally transferred to

administrative segregation, and that this court has concluded

that placing a prisoner in administrative segregation is an

adverse action. Herron, 203 F.3d at 416 (holding that being

sentenced to five days of administrative segregation constitutes

an adverse action); Thaddeus-X, 175 F.3d at 396 ("In the

prison context, an action comparable to transfer to

administrative segregation would certainly be adverse."). They

point out, however, that Brown was already in administrative

segregation when he was issued the major misconduct charge.

The defendants therefore contend that he did not suffer an

adverse action.

Although Brown was already in administrative segregation

and a hearing officer ultimately found him not guilty, the

issuance of the major misconduct charge subjected him to the

risk of significant sanctions. Mich. Admin. Code R.

791.5505(1) (listing the sanctions that a hearing officer is

allowed to impose on a prisoner who is found guilty of major

misconduct). Brown, for example, could have been sentenced

to "punitive segregation" if he had been found guilty, a

sanction more severe than administrative segregation. Id.;

Mich. Admin. Code R. 791.5510 (describing punitive

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segregation). He also could have lost good-time or disciplinary

credits, effectively increasing the amount of remaining time

that he was required to serve. Mich. Comp. Laws § 800.33(5);

Mich. Admin. Code R. 791.5505(3)(b). A reasonable jur’

could conclude that being subjected to the risk of such severe

sanctions for raising a legitimate complaint "would deter a

person of ordinary firmness from continuing to engage in that

_ [protected] conduct." Thaddeus-X, 175 F.3d at 394; see also

Cale, 861 F.2d at 949-50 (recognizing the § 1983 claim of an

inmate in part because "in this case appellant was in danger of

further loss of liberty through disciplinary detention and

through the loss of good-time credit as the result of the charges

filed against him") (emphasis added).

The third element of a retaliation claim is a causal

connection between the protected conduct and the adverse

action. This element is satisfied where "the adverse action was

motivated at least in part by the plaintiff's protected conduct."

Id. at 394. "Once the plaintiff has met his burden of

establishing that his protected conduct was a motivating factor

behind any harm, the burden of production shifts to the

defendant." Jd. at 399. In order to prevail on summary

judgment, the defendant must then "show that he would have

taken the same action in the absence of the protected activity."

Id.

The record in the present case establishes that Regional

Prison Administrator Johnson sent a memorandum to Warden

Crowley directly linking the major misconduct charge to

Brown's protected conduct. After that memorandum was

received, the major misconduct charge was issued, despite the

fact that prison officials were aware that an accounting

problem existed regarding Brown's prison account and that

Brown might have a valid complaint. In finding Brown not

guilty of the misconduct charge, the hearing officer stated:

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I find that, based on the documents that prisoner did

submit at this hearing that his perception that his debt

is paid off is not unreasonable at all. Prisoner even

states in his complaints that he has grieved that matter

and spoken with staff several tiomes [sic] about this

matter in an effort to show that he has [] paid his debt

in full and even shown them the documents that he

showed this hearing officer. Hearing officer finds that

it is entirely reasonable and probable that prisoner did

legitimately think someone was taking his money and

that prisoner had a reasonable belief that his alleations

[sic] were not false. |

Based upon this evidence, we conclude that a reasonable jury

could find that Brown has established that the defendants’

adverse action was motivated at least in part by his protected

conduct. The burden of production therefore shifts to the

defendants.

In holding that Brown failed to establish the third element

of a retaliation claim, the district court emphasized that the

defendants presented evidence that they had issued Brown a

major misconduct charge only after investigating his allegation

and concluding that it was meritless. The district court thus

concluded that "[iJt is clear that defendants issued the

misconduct ticket solely because they believed plaintiff acted

improperly and made false allegations." Although the evidence

presented by the defendants is relevant to the question of

whether they "would have taken the same action in the absence

of the protected activity," it is not sufficient to establish as a

matter of law that there was no causal connection between the

protected conduct and the adverse action. The district court

therefore erred in concluding that no genuine issue of material

fact exists regarding the third element of Brown's retaliation

claim.

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A classic "parade of horribles" is presented by the dissent

because of our conclusion, which supposedly "will result in

strict liability--or at least a triable factual issue--whenever a

prison official cites a prisoner for misconduct and the charge is

subsequently set aside." Dissenting Op. at 18. What this

critique misses is that we are here concerned with allegations

of prison officials retaliating against an inmate for the exercise

of his First Amendment rights, not with prisoner misconduct

generally. Cf Wright v. Newsome, 795 F.2d 964, 968 (11th Cir.

1986) (concluding that the plaintiff inmate had "alleged facts

bringing actions that might not otherwise be offensive to the

Constitution, such as the search itself or the confiscation and

destruction of [legal and] nonlegal materials ..., within the

scope of the Constitution by alleging that the actions were

taken in retaliation for filing lawsuits and administrative

grievances").

The dissent contends that "a prison official does not abuse

his position of authority merely by invoking a conventional

administrative procedure for sanctioning prisoner misconduct."

Dissenting Op. at 27. This is accurate as a general statement of

the law, but it has little application to the facts of this case,

where there was no misconduct. All Brown did was file

nonfrivolous grievances and write a letter to the police asking

them to investigate prison officials for embezzlement when,

according to the hearing officer, he "did legitimately think

someone was taking his money." On the facts as alleged by the

plaintiff, the defendants and the dissent seem to have forgotten

the childhood doggerel that "sticks and stones will break my

bones, but words will never hurt me." Johnson v. Pedersen,

No. 95-C8789, 1986 WL 11023, at *2 (N.D. Ill. Sept. 23,

1986) (holding that prison officials could not disregard a

prisoner's due process rights when they punished him for "such

a relatively minor offense as swearing").

We are dubious that the issuance of a major misconduct

ticket under such circumstances could ever be deemed

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consistent with First Amendment principles. Prison officials

are clearly free to punish inmate conduct that threatens the

orderly administration of the prison. But "(t]he State must

ensure . . . that [conduct-regulating] portions of the prison rules

are not used as a backdoor means of punishing inmates for

exercising their right to criticize the legality of officials'

actions. Any attempt to use the rules in this manner would

result in an unconstitutional application of the rules." Clarke v.

Stalder, 121 F.3d 222, 230 (Sth Cir.), vacated on other grounds

by 133 F.3d 940 (Sth Cir. 1997).

In sum, genuine issues of material fact remain as to whether

Brown was subjected to a risk of significant sanctions that

would ‘deter a person of ordinary firmness from continuing to

engage in protected conduct, and whether the defendants can

rebut the causal connection between the two. The district court

therefore erred in granting summary judgment to the

defendants. Accordingly, the district court's judgment is

vacated and the case is remanded for further proceedings. On

remand, the district court should also reconsider its order

denying Brown's motion to amend his complaint, because that

motion is no longer moot.

B. Request for a remand to a different district court judge

Brown also requests that we remand this case to a different

district court judge, based upon his contention that he "can not

and will not receive a fair trial before the current judge." In

particular, Brown claims that "(t]he district court seemed to

[analyze] everything in favor of the defendants [] and thereby

violated the law which states that be is to view the facts in

favor of the nonmoving party[]." Brown also contends that the

district court judge "has always been [oiased against] the

plaintiff's case whenever the plaintiff requested anything from

the court." :

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Although we have the authority pursuant to 28 U.S.C.

§ 2106 to remand the case to a different district court judge,

"this is an extraordinary power and should rarely be

invoked ...." Armco, Inc. v. United Steelworkers of Am., 280

F.3d 669, 683 (6th Cir. 2002). Because Brown has not

submitted any proof of personal bias that would require recusal

pursuant to 28 U.S.C. § 144, we have considered the following

factors in evaluating his request:

(1) whether the original judge would reasonably be

expected upon remand to have substantial difficulty in

putting out of his or her mind previously-expressed

views or findings determined to be erroneous or based

on evidence that must be rejected,

(2) whether reassignment is advisable to preserve the

appearance of justice, and

(3) whether reassignment would entail waste and

duplication out of proportion to any gain in preserving

the appearance of fairness.

Id.

None of these factors weigh in favor of remanding the

present case to a different district court judge. There is nothing

in the record or in Brown's brief to convince us that the district

court judge would have difficulty considering the case on

remand in an objective manner. Nor is there any reason to

think that reassignment is advisable to preserve the appearance

of justice. It is therefore unnecessary for a new district court

judge to become familiar with the complex factual and

procedural history of this case. As a result, we decline to grant

the extraordinary relief of remanding this case to a different

district court judge.

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III. CONCLUSION

For all of the reasons set forth above, we VACATE the

judgment of the district court and REMAND the case for

further proceedings consistent with this opinion.

DISSENT

ROSEN, District Judge, dissenting. The majority decision

in this case reaches out to establish a new legal standard in

prisoner civil rights actions, announcing law that is wholly

advisory and immaterial as to the claim actually before us, yet

binds future panels confronted with similar facts. Worse still,

the majority seemingly fails to apprehend the true magnitude

of its ruling, which will result in strict liability -- or at least a

triable factual issue -- whenever a prison official cites a

prisoner for misconduct and the charge subsequently is set

aside, even though (i) the prisoner suffers no adverse

consequences whatsoever while the charge is pending; (ii) the

prisoner is afforded a prompt hearing at which to contest the

charge; and (iii) there is no evidence, beyond the bare

disposition of the charge itself, that casts doubt upon the prison

official's considered judgment that a misconduct citation was

warranted. This strict liability standard, in my view, will foster

unwarranted and costly federal judicial intervention in the

orderly functioning of state prisons, and runs counter to the

Supreme Court command that "prison administrators . . . , and

not the courts, [are] to make the difficult judgments concerning

institutional operations." Turner v. Safley, 482 U.S. 78, 89, 107

S. Ct. 2254, 2261 (1987) (internal quotations and citation

omitted).

C enideedhelieanimeteal «

P - ae 5

-19a-

Further, by even reaching the merits of this case, the

majority undermines an additional protection designed to

Shield the actions of state government officials from

unwarranted judicial scrutiny -- namely, the defense of

qualified immunity. Several years ago, just after they were

served with prisoner Cleveland Brown's complaint in this

§ 1983 action, the Defendant/Appellee employees of the

Michigan Department of Corrections ("MDOC") promptly

asserted qualified immunity in their first responsive pleading, a

motion for summary judgment. The Supreme Court has

instructed that "qualified immunity questions should be

resolved at the earliest possible stage of a litigation," Anderson

v. Creighton, 483 U.S. 635, 646 n.6, 107 S. Ct. 3034, 3042 n.6

(1987), and has cautioned that the central purpose of qualified

immunity -- namely, to ensure that government officials need

not "stand trial or face the other burdens of litigation" unless

"the conduct of which the plaintiff complains violated clearly

established law" -- is defeated if the courts erroneously

withhold such immunity, Mitchell v. Forsyth, 472 U.S. 511,

526, 105 S. Ct. 2806, 2815 (1985). Likewise, this Court has

observed that the defense of qualified immunity "not only

protects a defendant from liability but may also protect a

defendant from the burdens of trial and discovery," English v.

Dyke, 23 F.3d 1086, 1089 (6th Cir. 1994), and we have deemed

it prudent to consider this defense, even if not addressed in the

court below, in order to avoid an "unnecessary" remand and

"protracted litigation," Spurlock v. Satterfield, 167 F.3d 995,

1004 n.16 (6th Cir. 1999).

Nonetheless, despite two rounds of proceedings before the

District Court and two appeals to this Court, no consideration

has yet been given to Defendants’ claim of qualified immunity.

The majority does not question our discretionary authority to

reach this issue, and expressly recognizes that Defendanis will

be free to reassert this defense on remand, a night Defendants

surely will exercise. Yet, the majority does not endeavor to

-20a-

explain what might possibly be gained through further

postponement of this inquiry -- the District Court previously

conferred the entire period of discovery sought by the parties,

(see J.A. at 340, 343), the record on appeal includes the entire

pertinent history of Brown's grievances and their attendant

circumstances, the parties have addressed the issue of qualified

immunity in papers filed both here and in the court below, and

we are in just as good a position as the District Court to decide

the purely legal question whether the evidence, viewed most

favorably to Brown, could establish a violation of a

constitutional right that was clearly established at the time of

Defendants’ actions, see Dickerson v. McClellan, 101 F.3d

1151, 1157-58 (6th Cir. 1996).

The majority's reticence on the defense of qualified

immunity is particularly unfortunate here, where this immunity

is certain to be conferred upon remand. The majority

determines on the merits that the District Court misapplied "the

law" governing Brown's First Amendment retaliation claim,

(see Majority Op. at 9), where the "law" in question is this

Court's decision in Thaddeus-X v. Blatter, 175 F.3d 378 (6th

Cir. 1999). Yet, because Thaddeus-X was decided in 1999,

nearly a year after the conduct at issue here, the law we

announced in that case will have no bearing upon the question

before the District Court following our remand of this case --

namely, whether Defendants are entitled to qualified immunity

under the law as it stood at the time of their actions. This prior

law expressly required that Defendants’ allegedly retaliatory

conduct be "shocking to the conscience." See, e.g., McLaurin

v. Cole, 115 F.3d 408, 410-11 (6th Cir. 1997); Cale v. Johnson,

861 F.2d 943, 950-51 (6th Cir. 1988). If it is doubtful, in my

judgment, that Brown can satisfy the standard set forth in

Thaddeus-X, it is plain that he has not identified any conduct

that shocks the conscience.

Accordingly, I cannot join in the majority's election to brush

aside this simple and wholly ripe issue, and to instead engage

EEA CR ERD pen C2 gadis

-2la-

in a purely advisory discussion of how Thaddeus-X would

apply to the facts before us. Through this course of action, we

now extend this litigation into its fifth year and third round of

District Court proceedings, making the proverbial "federal

case" -- and one of constitutional dimension, no less -- out of

what is, at bottom, a bookkeeping dispute over $51.24 in

Brown's prison trust account. At the same time, we announce

substantive law which, in my view, not only fails to advance

this litigation, but promises to produce the wrong result in

subsequent cases. For these reasons, I respectfully dissent.

I.

The majority accurately summarizes the procedural history

of this case, and explicitly confirms the crucial point that

Defendants have preserved their defense of qualified

immunity. I write further on this subject, however, to illustrate

my belief that any limited "waiver" of this defense in this case

is far more attributable to the courts than to Defendants, and

hence should be corrected at the earliest opportunity.

Back in January of 1999, a few months after Brown

commenced this suit, Defendants moved for summary

judgment in their favor, based in part upon the defense of

qualified immunity. As noted, this was their first responsive

pleading in the case. In a Report and Recommendation ("R &

R") dated July 30, 1999, the Magistrate Judge did not address

the issue of qualified immunity, but nevertheless recommended

that Defendants' motion for summary judgment be granted and

that the case be dismissed in its entirety. Regaiding Brown's

claim that Defendants had retaliated against his exercise of

First Amendment rights by citing him for misconduct, the

Magistrate thoroughly surveyed the relevant case law,

including our then-recent decision in Thaddeus-X, and found

that Brown had failed to produce any evidence of retaliatory

animus that might cast doubt on Defendants’ affidavits stating

that they had acted in good faith in issuing a misconduct

-22a-

charge. Brown failed to interpose any objections to the R & R,!

and it was adopted as the opinion of the District Court in an

August 30, 1999 Order and Judgment.

Regrettably, when Brown appealed the 1999 judgment, this

Court misapprehended the procedural posture of the case. In

his initial appellate submission, Brown correctly noted that

Defendants had invoked the defense of qualified immunity,

and he challenged both the District Court's grant of summary

judgment and Defendants' claimed entitlement to qualified

immunity.” Nonetheless, a panel of this Court erroneously

reviewed Brown's First Amendment retaliation claim as though

it had been dismissed as frivolous and for failure to state a

claim under 28 U.S.C. § 1915(e)(2)(B). The panel held that

Brown had alleged facts sufficient to state a claim of retaliation

under Thaddeus-X -- a conclusion which, of course, said

nothing about the propriety of the District Court's grant of

Summary judgment in Defendants' favor on this claim. Thus,

our initial decision did nothing to advance the resolution of

Brown's retaliation claim, but instead tended to muddy the

procedural waters.°

' The record on appeal includes objections filed by Brown on August 6,

1999, (see J.A. at 295), but a review of these objections and the docket

reveals that this submission was directed at an earlier R & R, and not the

one issued by the Magistrate Judge on July 30, 1999.

? Notably, Brown's initial brief on appeal did not mention any claim of

retaliation, but asserted only generally that Defendants had committed First

Amendment violations. It was only in his reply brief that Brown

specifically argued that Defendants had attempted to punish him for

exercising his First Amendment right to petition for a redress of his

grievances. Defendants reasonably could have assumed, then, that Brown

had abandoned his retaliation claim on appeal, see Thaddeus-X, 175 F.3d at

403 n.18 (stating that an argument "not presented to this court in the initial

briefs on appeal . . . is therefore waived"), and this presumably explains

why Defendants’ response brief in the first appeal did not address this

claim.

* Although the District Court had not addressed the defense of qualified

immunity and Defendants did not identify this issue in their appellate

-23a-

Upon remand, Defendants filed an answer in which they

asserted the affirmative defense of immunity, and the parties

sought and were granted a modest period of discovery.

Promptly after the close of discovery, Defendants again moved

for summary judgment in their favor on Brown's sole

remaining claim of retaliation. Somewhat predictably, this

motion omitted any mention of qualified immunity -- after all,

the courts had studiously ignored the subject up to that point --

and instead drew upon the grounds already identified in the

Magistrate Judge's earlier R & R as warranting summary

judgment. Given this prior determination, it should come as no

surprise that the Magistrate once again recommended that

Defendants’ motion be granted. This latest R & R was adopted

as the opinion of the District Court, and Brown has again

appealed. In their current appellate brief, Defendants have

raised (for the third time) the defense of qualified immunity, as

an alternative basis for affirming the District Court's judgment.

In light of this procedural history, the only sense in which

Defendants might be said to have "waived" the defense of

qualified immunity is through their failure to rehash the issue

before each and every court at each and every available

opportunity. Even then, this course of conduct would be

wholly understandable, where no court throughout — this

protracted litigation has yet heeded the Supreme Court's

instruction that "qualified immunity questions should be

resolved at the earliest possible stage of a litigation," Anderson,

483 U.S. at 646 n.6,107 S. Ct. at 3042 n.6, and where the

supposed benefit of this immunity -- namely, freedom from the

burden of litigating claims not involving a violation of Clearly

established law -- has long since been lost. For whatever

reason, the courts cannot seem to resist the allure of measuring

Brown's retaliation claim by the standards of Thaddeus-X, even

response brief, nothing prevented the panel in the initial appeal from

reaching this issue as an alternative ground for affirming the District Court's

judgment. See, e.g., Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000).

-24a-

though, as discussed beiow, those standards are exceedingly

unlikely to play any role in the ultimate disposition of this

case.

Under these circumstances, where Defendants have

adequately preserved the defense of qualified immunity, and

where we undoubtedly have the authority to reach the issue,

"the right question is whether the extent of qualified immunity

is ripe for decision." Buckley v. Fitzsimmons, 20 F.3d 789, 793

(7th Cir. 1994), cert. denied, 513 U.S. 1085 (1995). The

answer to this question is clearly yes, in my judgment, and the

majority fails to suggest any basis for concluding otherwise. I

see no meaningful analytical distinction between the inquiry |

advocate and the one the majority conducts -- in either case, we

survey precisely the same record in exactly the same way (i.e.,

under summary judgment principles, resolving all factual

disputes in Brown's favor), and ask how Defendants’ actions

measure up against the relevant legal standard. The only

difference is as to the substantive law we would apply: the

majority looks to Thaddeus-X, while I would consult the law

that was clearly established at the time of Defendants’ conduct.

In other words, the choice is between two purely legal

questions, with either to be resolved under the very same

record. There is no reason, then, why we should further defer

the qualified immunity inquiry, particularly where, as

explained below, the issue is readily addressed and the

outcome is clear.

Il.

Because Defendants unquestionably have preserved the

defense of qualified immunity, we can be sure that they will

immediately pursue it again upon remand to the District Court.

Regardless of who wins or loses on this issue, an immediate

appeal would almost certainly follow. See Dickerson, 101 F.3d

at 1156-57; Buckley, 20 F.3d at 793. The case would return to

this Court "like a yo-yo," with "[t]ime . . . lost, and nothing

-25a-

gained, by these additional steps." Buckley, 20 F.3d at 793.

This process would be particularly wasteful here, as there is no

doubt, in my view, that Defendants are entitled to qualified

immunity.

In conducting this inquiry, we first ask "whether, based on

the applicable law, a constitutional violation occurred," and if

so, we then consider "whether this violation involved clearly

established constitutional rights of which a reasonable person

would have known" at the time of the alleged violation.

Spurlock, 167 F.3d at 1005 (internal quotations and citations

omitted). "Both questions must be answered in the affirmative

in order to defeat a government official's claim to qualified

immunity," and "the burden is on the plaintiff to allege and

prove that the defendant violated a clearly established

constitutional right." 167 F.3d at 1005. I will assume, for the

moment, that Brown can satisfy the first prong of this inquiry -

- namely, that he has alleged and can prove that one or more

Defendants retaliated against his exercise of First Amendment

rights.

Turning to the second question, it is a simple matter to

ascertain the clearly established law that governed Defendants’

actions in early 1998. Just a few months earlier, in June of

1997, this Court decided a case where, as here, the plaintiff

prisoner, Jack McLaurin, alleged that the defendant corrections

officer, Russ Cole, had issued a misconduct ticket in retaliation

for a grievance that McLaurin had filed against Cole a few

days earlier. See McLaurin, 115 F.3d at 409. We squarely

rejected McLaurin's contention that his case was not governed

by the "shocks the conscience" standard, noting our "repeated{[]

demand[] that retaliation claims arising from the exercise of

First Amendment rights be shocking to the conscience." 115

F.3d at 410. |

* Upon addressing the merits below, however, I conclude that the

evidentiary record fails as a matter of law to sustain this proposition.

-26a-

Our 1999 decision in Thaddeus-X confirms this then-

existing state of the law, acknowledging that we previously had

applied a "shocks the conscience" standard in some instances,

and declaring that these prior rulings, including McLaurin, are

"no longer the law of this Circuit." Thaddeus-X, 175 F.3d at

387-88.° More recently, though we criticized McLaurin's

reading of Sixth Circuit precedent, we nonetheless recognized

that, once this 1997 ruling was issued, "a reasonable official

might [have] expect[ed] to escape liability for retaliatory acts

falling short of conscience-shocking abuses of power." Bell v.

Johnson, 308 F.3d 594, 612 (6th Cir. 2002). Accordingly,

because Thaddeus-X had not yet been decided at the time of

Defendants’ conduct in this case, McLaurin's "shocks the

conscience" test governs the second prong of the qualified

immunity inquiry.

Our decision in McLaurin, under somewhat similar facts,

also serves to confirm that Brown cannot hope to demonstrate

a violation of this clearly established law. The retaliation claim

in that case proceeded to trial, and plaintiff McLaurin testified

that defendant Cole had wrongfully issued a groundless

misconduct ticket against him, citing him for threatening Cole's

life. McLaurin further testified that this ticket was issued solely

to retaliate against the grievance he previously had filed

against Cole, charging this corrections officer with destruction

of the legal materials in McLaurin's prison cell. At the close of

this testimony, the District Court entered judgment as a matter

of law in Cole's favor, holding that McLaurin had "offered no

evidence whatsoever to establish that [Cole's] issuance of the

misconduct ticket was an ‘egregious abuse of 2overnmental

° The panel in McLaurin recognized as much, vacating its decision in

light of Thaddeus-X. See McLaurin v. Cole, 202 F.3d 269, 1999 WL

1206939 (6th Cir. Dec. 9, 1999). Although this vacated decision no longer

has precedential value, it plainly still serves as an important datum of this

Circuit's law as a government official would have understood it prior to

Thaddeus-X.

-27a-

power,” and that, accepting McLaurin's testimony as true,

Cole's "actions d[id] not rise to such a level as to ‘shock the

conscience’ of this court." McLaurin, 115 F.3d at 409-10

(quoting District Court order). We affirmed the District Court's

judgment on appeal, based in part upon our conclusion that

Cole's ,actions were not shocking to the conscience." 115 F.3d

at 411.

In the present case, Brown's claim of retaliation rests solely

upon the major misconduct charge issued against him.

McLaurin establishes that this does not constitute an

"egregious abuse of governmental power" that would "shock

the conscience" of this Court. Thus, if Defendants here had

reviewed our roughly contemporaneous McLaurin decision at

the time of the incidents giving rise to Brown's retaliation

claim, they doubtless would have concluded that they could

issue a misconduct ticket against Brown without fear of being

haled into court and accused of violating a clearly established

constitutional right.

Indeed, even without benefit of McLaurin's guidance, this

conclusion would be unassailable. Under anything but the most

extraordinary of circumstances, a prison official does not abuse

his position of authority merely by invoking a conventional

administrative procedure for Sanctioning prisoner misconduct.

The filing of a misconduct charge, after all, triggers a whole

panoply of procedural safeguards, including the entitlements to

a prompt evidentiary hearing, to present evidence and

arguments, to request a rehearing, and to seek judicial review.

See Mich. Comp. Laws §§ 791.252, 791.254, 791.255. See

generally Copeland v. Machulis, 57 F.3d 476, 480 (6th Cir.

1995) (holding that this "extensive process provided by

Michigan state law" comports with "established constitutional

° We also concluded that McLaurin had failed to establish a retaliatory

motive behind the misconduct ticket, where the record revealed that the

prisoner had, in fact, threatened to kill Cole.

-28a-

guidelines" for due process). It seems to me, then, that a prison

official's use of this misconduct mechanism is not exactly

fraught with potential for abuse, and would not "shock the

conscience" absent additional indicia of malice, such as

evidence of actual animus, a pattern of repeated filings, or

denial of the procedural checks and balances attendant to a

misconduct charge. Cf Morissette v. Peters, 45 F.3d 1119,

1122 (7th Cir. 1995) (holding that there is "no denial of due

process" where an erroneous disciplinary charge "is corrected

in the administrative appeal process"); Young v. Hoffman, 970

F.2d 1154, 1156 (2d Cir. 1992) (same), cert. denied, 510 U.S.

837 (1993).’

The record confirms that there was nothing remotely

shocking or abusive in the circumstances surrounding the

misconduct charge in this case. The misconduct report was

written on April 21, 1998, and Brown was given a hearing just

a few days later, on April 30, 1998, after which he was

adjudged not guilty of the charge. As noted by the majority,

Brown already was in administrative segregation at the time

the misconduct was issued, and thus he did not suffer even a

temporary deprivation of any privileges for the few days the

charge was pending. Morever, as discussed in greater detail

below, Brown's claim of retaliation rests solely upon

information gleaned from within the four corners of the

_ 7 Indeed, I would find it ironic if we would, on one hand, recognize a

prisoner's constitutional right to file grievances, even those that are

determined to be without merit, yet would conclude, on the other hand, that

a prison official egregiously abuses his power by invoking a similar

administrative mechanism to charge a prisoner with misconduct, at least in

those instances where the charge is set aside. It strikes me that we should

encourage prison officials to pursue misconduct charges, as opposed to

other forms of discipline that are unaccompanied by similar safeguards. See

Young, 970 F.2d at 1156 (observing that, "as a policy matter, this possibility

of cure through the administrative appeals process will encourage prison

administrators to correct errors as an alternative to forcing inmates to seek

relief in state or federal courts").

5

Ee

‘i

g

t

-

-29a-

misconduct charge and hearing report, and not upon any

extrinsic evidence from which it might be inferred that

Defendants were "out to get him," that they acted maliciously

or recklessly, or that the misconduct charge was part of a larger

pattern of malfeasance. Under this record, Defendants' conduct

could not remotely be characterized as shocking, but rather as

utterly benign.

Finally, and by way of contrast, I find it instructive to

compare this case with one in which we found that a prison

official's alleged act of retaliation did constitute an egregious

abuse of power. Specifically, in Cale, supra, the plaintiff

prisoner, Louis Cale, complained about the poor quality of the

prison food, and this complaint was relayed to the defendant

administrator of food service, James Wahl. A cook foreman

testified that he overheard Wahl stating that "he would have

Cale locked up and that that would be the end of Cale's

complaints," and that Wahl alerted a duty officer to be ready

for a call to the dining room at about three o'clock that

afternoon. Cale, 861 F.2d at 944.

Sure enough, at around 3:00 p.m. that day, the duty officer

was summoned to the dining hall to investigate the following

incident:

At that time, allegedly under Wahl's direction, inmate

Melvin Persky, who worked in the kitchen,

approached Cale from behind and placed a small

package in his pocket. Cale began shouting

repeatedly, "You're trying to set me up." Cale was

approached by safety and occupational health

specialist Harry Farris who placed his hand around the

upper portion of Cale's arm to get his attention. Cale

stated to Farris, "Oh, I'm glad it's you, Mr. Farris. You

are fair. These are trying to set me up." At that

time, Wahl shouted at Farris to get the packet from

Cale. Farris did not know what Wahl meant by this

-30a-

statement, but Cale threw a piece of paper which was

folded in a small square on the top of the main serving

line directly in front of Farris. This packet

subsequently was determined to contain marijuana.

Cale again became very agitated and shouted

accusations at Persky.

861 F.2d at 944. Upon arriving at the scene, the duty officer

determined that Cale should be charged with possession of

narcotics and threatening others with bodily harm. Cale was

placed in administrative segregation, until a disciplinary

committee determined a few days later that Cale had not

violated any of the prison's disciplinary rules.

On this record, we reversed the District Court's award of

summary judgment in favor of defendant Wahl. In so ruling,

we noted that the "shocks the conscience" standard governed

Cale's claim, but found that Cale's evidence, if credited by the

trier of fact, would establish the requisite "egregious abuse of

governmental power." 861 F.2d at 949-50. Specifically, we

held that "the evidence supports a claim that Wahl intentionally

and maliciously framed Cale and filed disciplinary charges

against him in retaliation for Cale's exercise of his first

amendment rights." 861 F.2d at 950.

The distinctions between Cale and this case are evident.

First, and most obviously, Cale features direct evidence of

retaliatory conduct, with defendant Wahl explicitly stating,

according to one witness, that he would have Cale locked up in

order to put an end to his complaints. Next, in going about this

Stated mission, Wahl did not merely scrutinize Cale's behavior

in an effort to identify a punishable offense. Rather, Cale

produced evidence that Wahl actively abused his position of

authority, first by instructing another inmate to plant illegal

narcotics on Cale, and then by arranging for other prison

officials to witness and bring charges for this trumped-up

offense. As noted in Judge Nelson's concurrence, "Wahl surely

-3la-

had no authority to cause illegal drugs to be planted on the

person of a prison inmate for any purpose at all, retaliatory or

otherwise," and "had absolutely no business trying to make it

appear that the inmate was guilty of an infraction of which he

was innocent." Cale, 861 F.2d at 95] (Nelson, J., concurring).

The record before us, in contrast, includes no such direct

evidence of retaliatory motive. More importantly, even if such

a motive could be inferred from the record -- and, as explained

below, I do not believe that it can -- the evidence does not

remotely suggest that Defendants acted upon this purported

motive by knowingly manufacturing false charges against

Brown. Rather, the worst that can be said about the misconduct

charge in this case is that it was set aside following a prompt

hearing. In the meantime, Brown suffered no ill consequences

whatsoever. If Defendants set about to punish Brown for his

exercise of First Amendment rights, they picked a remarkably

benign and wholly above-board means of doing so. Under this

record, the District Court surely will determine upon remand

that Defendants are entitled to qualified immunity. There is no

reason why we should not make this same determination here

and now.

Il.

For the reasons set forth above, I think it irrelevant whether

Brown's retaliation claim could survive summary judgment

under the analytical framework adopted in Thaddeus-X.

Because the majority has weighed in on this issue, however,

and has announced new and Sweeping legal standards in the

process, I find it necessary to state my quite different view of

how Brown's claim would fare under Thaddeus-X.

Thaddeus-X establishes a three-element test for retaliation

Claims, under which a prisoner must show: (i) that he engaged

in protected conduct; (ii) that adverse action was taken against

him that "would deter a person of ordinary firmness from

-32a-

continuing to engage in" the protected conduct; and (iii) that .

there was a causal connection between the protected conduct

and the adverse action. Thaddeus-X, 175 F.3d at 394. As

discussed below, I believe that the record fails as a matter of

law to establish the second and third prongs of this standard.

More generally, there is no direct evidence of a retaliatory

motive for Defendants’ conduct, and Brown's evidence does

not permit the inference that Defendants acted with such a

miotive in charging Brown with misconduct. Even by reference

to Thaddeus-X, then, the District Court properly awarded

summary judgment in Defendants’ favor.

Before addressing my principal points of disagreement with

the majority, I first note that the inquiry under the first,

"protected conduct" element of Thaddeus-X is not quite so

clear-cut as the majority seems to believe. The majority has no

doubt, and Defendants themselves concede, that Brown was

engaged in protected conduct when he complained about

alleged overcharges to his prison account. And, to be sure, we

have recognized an inmate's “undisputed First Amendment

right to file grievances against prison officials on his own

behalf." Herron v. Harrison, 203 F.3d 410, 415 (6th Cir.

2000). Herron also establishes, however, that this conduct is

protected "only if the grievances are not frivolous." Herron,

203 F.3d at 415. Similarly, "while a prisoner may have a right

to file grievances against prison officials, he or she cannot

exercise that right in a manner that violates legitimate prison

regulations or penological objectives." Smith v. Campbell, 250

F.3d 1032, 1037 (6th Cir. 2001).

To the extent that Brown complained about overcharges, it

was determined at the subsequent misconduct hearing that

Brown's perception on this point was "not unreasonable at all."

(J.A. at 201.) This finding, I would agree, raises a triable issue

of fact as to whether Brown's complaints on this point were

nonfrivolous, and hence -protected. What the majority fails to

address, however, is that Brown did a good deal more than

-33a-

merely claim that his account had been overcharged. In

particular, Brown wrote to the Michigan State Police and a

local prosecutor, demanding that criminal charges of

embezzlement be brought against a prison accountant and the

prison warden. (See J.A. at 206-07.) Even to this day, in his

brief in the present appeal, Brown continues to insist that

Defendants embezzled funds from his prison account, and he

further contends that Defendants falsified documents and lied

in order to interfere with any investigation of these criminal

charges.

As noted in the misconduct ticket itself, such charges go far

beyond mere complaints that Brown had been overcharged for

his prison debts. Brown's serious accusations, if accepted,

"would ordinarily result in disciplinary actions being initiated

against" the accused prison officials. (J.A. at 200.) Yet, an

Internal Affairs investigation determined that these allegations

of criminal wrongdoing lacked merit, and absolutely nothing in

the record suggests that any prison official engaged in criminal

conduct of any sort. Even the misconduct hearing report, the

centerpiece of Brown's retaliation claim and the majority's

analysis, states only that there was insufficient evidence to

conclude that Brown "deliberately file[d] false allegations

with{] [t]he specific intent of having staff disciplined." (J.A. at

201.) This finding, of course, says little or nothing about

whether Brown's allegations of criminal misconduct were

ungrounded and frivolous, and hence ineligible for First

Amendment protection. It is important to bear this point in

mind in analyzing Brown's claim of retaliation.

Turning to the second prong of the Thaddeus-X standard,

the majority concludes that the mere "risk of significant

sanctions," (Majority Op. at 12), without more, constitutes the

requisite "adverse action" that permits Brown's retaliation

claim to go forward. Indeed, this hypothetical "risk" alone

must suffice in this case, because Brown has not identified any

actual, concrete consequence of the misconduct charge against

-34a-

him. During the few days that this charge was pending, Brown

suffered absolutely no change in the conditions of his

confinement, nor any reduction in privileges; as conceded by

the majority, Brown already was in administrative segregation

at the time. Neither did the misconduct charge produce any

lasting effects upon Brown's prison stay or disciplinary record,

as the charge was set aside following a prompt hearing.

Thaddeus-X requires that an alleged act of retaliation be

truly “adverse,” and explains that "certain threats or

deprivations are so de minimis," "inconsequential," or "trivial"

that they cannot sustain a First Amendment retaliation claim.

Thaddeus-X, 175 F.3d at 398. In determining whether an action

is "adverse," we ask if it would "deter a person of ordinary

firmness from the exercise of the right at stake." 175 F.3d at

396 (internal quotations and citation omitted). Where, as here,

a challenged action has no consequences whatsoever, either

immediate or long-term, it ineluctably follows that such an

action is "inconsequential." Nor can it plausibly be argued that

the misconduct charge in this case would have chilled the

exercise of First Amendment rights; to the contrary, the prompt

and favorable disposition of this charge surely would be

viewed by a reasonable inmate as vindicating his right to

pursue good-faith grievances. Given the context-specific nature

of the "adverse action" inquiry, see Thaddeus-X, 175 F.3d at

398, I find it unduly myopic to focus solely upon the filing of

the misconduct charge in isolation, without regard for the

procedural safeguards triggered by this filing and the proper

functioning of these safeguards in this case.

More generally, I see no limiting principle whatsoever in

the majority's risk-based theory of adverse action. Plainly, this

inchoate "risk" of adverse consequences need never be

realized, as it was not here. How definite or imminent, then,

must a "risk" be in order to satisfy the second prong of

Thaddeus-X, and how many hypothetical leaps are permissible

before a "risk" is deemed inconsequential? Would it have

-35a-

sufficed in this case if Defendants had sent Brown a

threatening letter, warning that they would pursue misconduct

charges if he made any further allegations of embezzlement?

The majority provides no guidance on these questions, nor

does it cite any authority that might assist future courts in

determining when a mere "risk" of consequences alone might

constitute "adverse action."

My own research has failed to uncover any support for the

proposition that a showing of adverse action may rest upon

mere potentialities that never come to pass. To the contrary, we

have affirmed the dismissal of a First Amendment retaliation

claim for lack of any "concrete injuries" suffered by the

plaintiff. Jackson v. City of Columbus, 194 F.3d 737, 757 (6th

Cir. 1999), overruled on other grounds by Swierkiewicz v.

Sorema N. A., 534 U.S. 506 (2002); see also Franco v. Kelly,

854 F.2d 584, 590 (2d Cir. 1988) (holding that a prisoner

would be entitled to relief under a First Amendment retaliation

theory if he could "prove his allegation that he was subjected to

false disciplinary charges and subsequent punishment" as a

result of his protected activity (emphasis added)). It is not

enough, moreover, that the plaintiff identify a concrete change

in the conditions of his confinement, if this change is not

adverse. We have held, for example, that a lateral transfer from

one prison facility to another does not suffice to sustain a

retaliation claim, even though this transfer might have "some

effect on [the plaintiff prisoner's] future filing of grievances,"

and even though this transfer might be intended in part "to give

prison staff a respite from [the prisoner's] continuous barrage

of grievances." Ward v. Dyke, 58 F.3d 271, 274-75 (6th Cir.),

cert. denied, 516 U.S. 991 (1995).

Likewise, in the related context of employment-based

retaliation claims, we have required that a plaintiff identify a

"materially adverse" effect upon the terms and conditions of

his or her employment. See Hollins v. Atlantic Co., 188 F.3d

652, 662 (6th Cir. 1999). We have held that this standard is not

-36a-

satisfied by an interim decision to deny tenure, or even an

outright discharge, which is overturned in a subsequent

grievance process, and which produces no "final or lasting"

harm, see Virts v. Consolidated Freightways Corp., 285 F.3d

508, 522 (6th Cir. 2002); Dobbs- Weinstein v. Vanderbilt Univ.,

185 F.3d 542, 545-46 (6th Cir. 1999), cert. denied, 529 U.S.

1019 (2000); the temporary loss of a position, see Bowman v.

Shawnee State Univ., 220 F.3d 456, 461-62 (6th Cir. 2000); a

short-term suspension with pay, see Jackson, 194 F.3d at 744,

752; or allegedly unjustified disciplinary measures, such as

"counseling memoranda," that have no material effect upon the

terms and conditions of the plaintiffs employment, see Allen v.

Michigan Dep't of Corrections, 165 F.3d 405, 408, 410, 413

(6th Cir. 1999); Walborn v. Erie County Care Facility, 150

F.3d 584, 590 (6th Cir. 1998). One of our observations in

Dobbs-Weinstein applies with full force here -- that, if we were

to accord "adverse" status to interim decisions that are subject

to further internal review, the result "would be to encourage

litigation before the [defendant] has an opportunity to correct

through internal grievance procedures any wrong it may have

committed." Dobbs-Weinstein, 185 F.3d at 546.

The Thaddeus-X standard expressly derives from this body

of employment law. See Thaddeus-X, 175 F.3d at 388-90, 394.

Yet, we recognized that, in light of the paramount concern for

"(s]afety and order" in the prison setting, "[a] prisoner's First

Amendment rights are not more extensive than those of a

government employee; in fact, under most clauses of the First

Amendment, they are much more strictly limited." Thaddeus-

X, 175 F.3d at 392. More specifically, regarding the "adverse

action" element of a retaliation claim, we explained that

"[p]risoners may be required to tolerate more than public

employees, who may be required to tolerate more than average

citizens, before an action taken against them is considered

adverse." Thaddeus-X, 175 F.3d at 398. It follows, then, that

actions the same as or comparable to those we have deemed

non-adverse in our employment cases must be non-adverse in

|

|

-37a-

the prison context as well. The majority opinion stands this

equation on its head, however. I cannot conceive that the

average inmate's sensibilities are so delicate and easily

offended that a mere risk of disciplinary measures -- a stock-in-

trade of the prison environment, as I understand it -- would

deter him or her from filing grievances to challenge perceived

wrongdoing.

My strongest point of disagreement with the majority,

however, concerns its application of the third, "causal

connection" element of the Thaddeus-X test to the facts of this

case. Having seemingly determined that all of Brown's

grievance-related activity is protected conduct, the majority has

no difficulty in concluding that the major misconduct charge

was causally related to this conduct. And, indeed, the record is

clear on this issue, at least as the majority has framed it.

Following an Internal Affairs investigation which determined

that Brown's allegations of embezzlement were "without

merit," Regional Prison Administrator Richard Johnson

requested that a misconduct ticket be issued against Brown:

We have been seeing more and more of these false

complaints lately. While I believe a prisoner should

be able to file a legitimate complaint, they also should

be punished for filing false complaints. Therefore,

please issue a major misconduct ticket to the prisoner

regarding this matter.

(J.A. at 204.) I wholeheartedly agree with the majority that

Johnson's statement expressly links the misconduct charge to

Brown's prior grievances and complaints to public officials

concerning the funds in his prison account.

Contrary to the majority's reasoning, however, this is only

the beginning of the "causal connection" analysis, and not the

end. Any time a prison official charges an inmate with

misconduct for filing a false complaint, there is an undeniable

-38a-

causal link between the prisoner's complaint and the

misconduct charge. Yet, the relevant consideration, as always

in retaliation cases, is "the subjective motivation of the

decisionmaker" -- "that is, the plaintiff must show that the

decision was motivated, at least in part, by the plaintiff's

protected activity." Smith, 250 F.3d at 1038.

Taking Richard Johnson at his word, this motivation is

lacking here. Johnson requested that a misconduct ticket be

issued in light of Brown's "false complaint{]" of

embezzlement. As explained earlier, a prisoner who files a

frivolous complaint or who exercises his right to file

grievances in a manner that violates legitimate prison

regulations and objectives is not engaged in protected activity,

and a prison official does not unlawfully retaliate by taking

action against such unprotected conduct. See Smith, 250 F.3d at

1037; Herron, 203 F.3d at 415. Johnson's stated motive is

precisely this permissible one -- and, indeed, he recognized

that it would not be appropriate to take action against a

legitimate grievance. On its face, then, Johnson's statement

breaks the relevant causal connection, rather than serving as

evidence of it as the majority holds. In other words, Johnson's

statement indicates that he could not possibly be acting with

the impermissible motive of retaliating against Brown's

exercise of First Amendment rights because, in Johnson's view,

Brown was not even engaged in protected conduct when he

accused prison officials of embezzlement.

Hence, in order to survive summary judgment on the

"causal connection" element of the Thaddeus-X standard,

Brown must identify a genuine issue of fact as to whether

Defendants were motivated, at least in part, by Brown's

protected conduct. Brown must make this showing, moreover,

in the face of Johnson's express contemporaneous statement

that he was not so motivated, but instead directed that Brown

be charged with misconduct for engaging in unprotected

activity that was disruptive to the orderly operation of the

-39a-

prison.® It is a familiar principle of summary judgment law, of

course, that Brown cannot "rely on the hope that the trier of

fact will disbelieve" Johnson's account, but "must present

affirmative evidence" of a retaliatory motive. See Street v. J.C.

Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (internal

quotations and citations omitted).

The only possible candidate for such "affirmative evidence"

that I can discern from the majority opinion, or from the record

as a whole, is the determination of the hearing officer that

Brown's misconduct charge should be set aside. In particular,

the majority quotes the hearing officer's findings that Brown

was "not unreasonable" in believing that his prison debt had

already been paid, and that Brown probably "did legit[i]mately

think [that] someone was taking his money and . . . that his

alle[g]ations were not false." (J.A. at 201.) The entire focus of

the hearing officer's inquiry, however, was whether Brown

"deliberately and intentionally filed a false claim with the

specific purpose of misleading" prison officials or "having staff

disciplined." (/d.)

* It is immaterial, in my judgment, whether one considers Johnson's

Statement as part of the "causal connection" inquiry, or instead views this

statement as bearing upon Defendants’ burden of production once Brown

has established the three elements of a prima facie case of retaliation.

Assuming that Brown has made out a prima facie case, Defendants then

would have to produce evidence that they would have issued the

misconduct ticket even in the absence of Brown's protected activity. See

Thaddeus-X, 175 F.3d at 399. Johnson's statement satisfies this burden of

production -- as noted, he stated his belief that Brown was not engaged in

protected conduct, making it clear that he would have pursued precisely the

same course of action even "in the absence of" any protected conduct. At

this point, having negotiated our way through the initial burden-shifting

framework, we would return to the overarching question whether the

evidentiary record, viewed most favorably to Brown, would enable him to

meet his burden of establishing that Defendants charged him with

misconduct, not for the reason stated by Johnson, but rather in retaliation

against his exercise of First Amendment rights. See Penny v. United Parcel

Service, 128 F.3d 408, 417 (6th Cir. 1997).

-40a-

The hearing report, consequently, seems a poor place to

look for evidence of Defendants’ motivation in charging

Brown with misconduct. The most that can be said from this

document is that Defendants failed to prove -- to the

Satisfaction of the hearing officer, at least, and under the

"higher burden of proof" imposed by the officer, (id.) -- that

Brown had intentionally filed a false claim for an improper

purpose. This says nothing about why Defendants accused

Brown of this misconduct in the first instance. From the

hearing report alone, one could equally well speculate, for

example, that Defendants (i) honestly believed, after -a

thorough investigation, that Brown's allegations of

embezzlement were knowingly false; (ii) arrived at this belief

only through a careless disregard for the records Brown had

produced in support of his allegations; or (iii) knowingly and

deliberately lodged a false charge against Brown in retaliation

for his filing of grievances and complaints against them. Only

the last of these hypotheses, of course, would sustain Brown's

claim of retaliation, but the trier of fact could not permissibly

draw this inference, unless and until presented with evidence

that tends to counter Johnson's express and still-unchallenged

statement of his lawful, non-retaliatory motive for instructing

that Brown be charged with misconduct.

Indeed, the case law demonstrates, in my view, that the

hearing officer's findings cannot bear the evidentiary weight

that the majority places upon them. In applying the "protected

conduct" prong of Thaddeus-X, for example, we have

explained that a prisoner's claim "need not be successful to be

non-frivolous," and that such a claim is protected so long as it

is "arguable." See Bell, 308 F.3d at 607 n.5 (citing Lewis v.

Casey, 518 U.S. 343, 352-53 & nn.2, 3, 116 S. Ct. 2174, 2180-

81 & nn.2, 3 (1996)). By the same logic, the hearing officer's

dismissal of Brown's misconduct charge after a hearing on the

merits says nothing about whether the charge had arguable

merit, was frivolous, or was brought in bad faith, particularly

given the hearing officer's application of an elevated standard

enecmnaraae

Ee

-4la-

of proof in adjudicating the charge. Though it might well be

necessary to Brown's claim of retaliation that he secure the

administrative reversal of the misconduct charge, see, e.g.,

Cowans v. Warren, 150 F.3d 910, 912 (8th Cir. 1998);

Jackson-El v. Winsor, 986 F. Supp. 440, 444-46 (E.D. Mich.

1997), aff'd, 201 F.3d 440 (6th Cir. 1999), this alone is not

sufficient to raise a triable issue of fact as to Defendants'

motives for issuing the charge.

Rather, I believe that this inquiry is governed by the

traditional standards, firmly established in our employment law

decisions, for analyzing disputes over a defendant's stated

reasons for taking a particular action. Defendants having

identified a lawful, non-retaliatory ground for the misconduct

charge -- namely, their determination, following an

investigation, that Brown had asserted false claims of

embezzlement -- Brown then "bears the ultimate burden of

proving that the proffered reason for the [misconduct charge]

was merely a pretext" for retaliation. Penny, 128 F.3d at 417.

, Alternatively, as suggested earlier, this issue could be framed as an

inquiry whether Brown has "produce{d] sufficient evidence from which an

inference could be drawn that the adverse action would not have been taken

in the absence of the protected conduct.” Weigel v. Baptist Hosp., 302 F.3d

367, 381 (6th Cir. 2002) (internal quotations and citation omitted). To the

limited extent that the majority opinion alludes to this issue, it improperly

shifts the burden of proof from Brown to Defendants. The majority

concedes that Johnson's statement and other materials in the record are

"relevant" to the question whether Defendants would have taken the same

action in the absence of any protected conduct. (Majority Op. at 14.) Yet,

despite Defendants’ modest burden of production on this point, the majority

concludes that Defendants have not “establish{ed] as a matter of law that

there was no causal connection between the protected conduct and the

adverse action." (/d.)

Defendants are not obliged to prove this point. Rather, once they have

produced evidence that denies the requisite causal connection — as they

undoubtedly have done, through Johnson's statement and otherwise ~ it is

Brown's burden to identify evidence that would permit a trier of fact to

reject Defendants’ stated motive as a mere pretext for unlawful retaliation.

-42a-

A plaintiff generally establishes pretext through one of three

routes, showing either (i) that the defendant's proffered reason

has no basis in fact; (ii) that this reason did not actually

motivate the defendant's action; or (iii) that this reason was

insufficient to motivate the defendant's action. Weigel, 302

F.3d at 378.

I have already explained why, in my view, the outcome of

the misconduct hearing tells us nothing about Defendants'

actual motivation, and the record contains nothing bearing

upon the sufficiency of this motivation -- Brown has not

suggested, for example, that other prisoners have made

comparable false complaints yet not been cited for misconduct.

This leaves Brown and the majority to rely on the first form of

pretext. The majority apparently concludes, again on the basis

of the findings at the misconduct hearing, that issues of fact

remain as to the factual basis for Defendants' determination

that Brown should be disciplined for making false claims of

embezzlement.

This conclusion, however, once again runs afoul of our

precedents. Let us assume, for the moment, that the findings at

the misconduct hearing establish that Defendants were

mistaken in believing that Brown had made false claims."°

Even so, in assessing the factual basis for a defendant's action,

we do not require that the defendant's belief ultimately prove

correct by objective measures, but only that this belief be

"honestly held" and reasonably based upon the "particularized

facts" before the defendant at the time of the challenged action.

Smith v. Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir. 1998).

The rationale behind this variant of the "honest belief" rule is

simple: "If the [defendant] honestly, albeit mistakenly, believes

in the non-[retaliatory] reason it relied upon in making eae

© 1 again note, however, that nothing in the hearing report or elsewhere

in the record calls into question Defendants’ determination that Brown's

accusations of embezzlement were false.

heal oe Die Ah RT Ree

-43a-

decision, then the [defendant] arguably lacks the necessary

[retaliatory] intent." 155 F.3d at 806.

Defendants easily satisfy this standard, and Brown has

produced no evidence to suggest otherwise. As indicated in

Johnson's statement and in the misconduct charge itself,

Brown's allegations of criminal embezzlement by prison

officials were investigated by MDOC's Internal Affairs section

and found to be without merit. (See J.A. at 200, 204, 205.) This

investigation and its findings provide the requisite

"particularized facts" that render Defendants' stated belief

"honestly held." To this day, there are no facts before us that

would support a different conclusion.

Even as to Brown's broader and less inflammatory

complaint that his prison account had been overcharged, the

record reflects that prison officials conducted a diligent

investigation of this complaint, but that this effort was made

more difficult by Brown's frequent transfers from one facility

to another, and by the apparent inability of staff at one prison

to gain access to the financial records of another MDOC

facility. Thus, even if the misconduct charge were construed as

resting in part upon Defendants' belief that Brown's claims of

overcharges, as well as his claims of embezzlement, were false,

I would conclude that this belief, too, would be deemed

"honestly held" under the facts available to Defendants at the

time. "[W]e do not require that the decisional process used by

the [defendant] be optimal or that it left no stone unturned," but

rather inquire only "whether the [defendant] made a reasonably

informed and considered decision before taking an adverse . . .

action." Smith, 155 F.3d at 807. The record here, in my view,

reveals a more than adequate investigation of Brown's

overcharge complaint, particularly given the modest amount at

issue.

Unfortunately, this unrefuted evidence of Defendants’

permissible, non-retaliatory motive for charging Browr with

-44a-

misconduct plays no role in the majority's analysis of this case.

Rather, based solely upon the outcome of the misconduct

hearing, the majority moves swiftly and uncritically through

the elements of the Thaddeus-X standard, coming within a

hair's-breadth of awarding summary judgment in Brown's

favor, and leaving me -- and, no doubt, Defendants and the

District Court as well -- wondering what sort of additional

proof Defendants could possibly offer to avoid this result on

remand. The majority declares, for example, that "there was no

misconduct" in this case, that Brown filed exclusively

"nonfrivolous grievances," and that Brown actually believed

that prison officials were embezzling his funds, (see Majority

Op. at 14), with all of these apparent "findings" derived solely

from the report of the hearing officer. Yet, the majority fails to

indicate whether Defendants should be permitted to contest any

of these points on remand, or whether the statements in the

hearing report should instead be accorded the status of

irrefutable fact.'' Then, having effectively decreed that Brown

was engaged in protected conduct, the majority suggests, if it

does not outright hold, that Defendants’ perception of what

Brown was doing is legally irrelevant, and that a prisoner's

exercise of what we deem after the fact to be "protected

conduct" -- a definition which apparently encompasses any use

of "mere words,” no matter how baseless or disruptive to the

'! Tf the latter, as portions of the majority opinion appear to suggest, then

we apparently hold in this case that prison administrative hearings have a

greater and more inviolate truthseeking capacity than, say, federal court

proceedings. The Supreme Court has explained, under analogous

circumstances, that "an acquittal on criminal charges does not prove that the

defendant is innocent; it merely proves the existence of a reasonable doubt

as to his guilt." United States v. One Assortment of 89 Firearms, 465 U.S.

354, 361, 104 S. Ct. 1099, 1104 (1984). Here, Brown's administrative

acquittal is even less entitled to issue-preclusive effect, given that this case

involves both a different standard of proof and a shift of the burden of

proof to the opposing party, Brown. The hearing report might assist Brown

in satisfying this burden, but it surely is not conclusive proof as to the

"protected conduct" element of Thaddeus-X.

-45a-

prison environment’? -- precludes prison Officials from taking

any action against such conduct, regardless of their motive.

Again, one wonders whether Defendants might still be

permitted to produce evidence, beyond ‘the unrefuted

statements they already have offered, that the acted out of an

honest, good-faith and well-founded belief that Brown had

engaged in the misconduct with which he was charged.

The majority, in short, has reduced Thaddeus-X to a single-

element test for the existence of protected conduct, with prison

officials expected to be unerring First Amendment scholars as

evaluated by the courts in hindsight, rather than their motives

being assessed by what they actually said and believed at the

time they acted. I am simply at a loss to understand why the

majority deems it necessary to analyze a prisoner's First

Amendment retaliation claim under a special set of standards

wholly different from those we routinely apply in cases

involving allegations of impermissible motive. Under these

latter principles, which we have repeatedly stated and applied

in our decisions, it is clear that Brown suffered no adverse

effects whatsoever for the few short days that the misconduct

charge was pending against him. In addition, Defendants have

produced evidence that they charged Brown with misconduct

for a permissible, non-retaliatory reason, and Brown has

produced no evidence that this reason was pretextual, much

less that the true reason was retaliatory. On these grounds,

'? While the majority's "sticks and stones" adage might be good advice

on the playground, it has not, so far as I am aware, been adopted into our

First Amendment retaliation jurisprudence. Rather, we have consistently

held that a prisoner enjoys First Amendment protection only insofar as he

pursues nonfrivolous grievances in a manner that does not violate legitimate

prison regulations or penological objectives. See Bell, 308 F.3d at 607 &

n.5; Smith, 250 F.3d at 1037; Herron, 203 F.3d at 415. The majority's "mere

words" formulation, in contrast, lacks any such limiting principles, and

seemingly would accord full constitutional protection to a prisoner's

grievance threatening, for example, that prison officials would be maimed

or killed if they did not return the funds allegedly embezzled from the

prisoner's account.

-46a-

most of which were recognized by the Magistrate Judge in the

very early days of this case, (see July 30, 1999 Report and

Recommendation at 18), we shouid affirm the District Court's

award of summary judgment in Defendants' favor.

IV.

Defendants tell us that Michigan prisoners file thousands of

grievances each year. It seems safe to assume that at least some

of these are frivolous or outright false, and that substantial state

resources are wasted in processing such complaints. Moreover,

as we recognize the danger that a prison official might use a

misconduct charge as a means of retaliating against an inmate,

we surely must acknowledge that a prisoner, likewise, might

iodge retaliatory charges against prison staff, with the result

that personnel are diverted from their usual tasks to address

these charges, at considerable expense to the taxpayers. It

stands to reason, then, that prison officials must be given the

tools to deter such complaints, including the authority to take

disciplinary action against inmates who file them.

As judges, we surely must appreciate this. We have a

panoply of tools at our disposal -- Fed. R. Civ. P. 11 and 28

U.S.C. § 191 5(e)(2)(B), to name just two -- that enable us to

quickly dispose of frivolous claims and sanction those who

bring them. If a litigant believes we are wrong in taking such

action, his sole recourse is to appeal. The judge-made doctrine

of judicial immunity protects us from an award of damages, or

even discovery on allegations of bad faith or malice. See

Barrett v. Harrington, 130 F.3d 246, 254-55 (6th Cir. 1997),

cert. denied, 523 U.S. 1075 (1998).

If we enjoy such immunity in our rather rarefied setting, |

think it only fair that we grant some degree of deference to

prison officials who make similar determinations under much

more trying and turbulent circumstances. The qualified

immunity doctrine seeks to account for these circumstances,

Ne eT ee ee eee

-47a-

yet we inexplicably refuse to apply it in this case. Worse, the

majority determines on the merits that an administrative

reversal of a misconduct charge, standing alone, raises a triable

issue of fact on any unlawful motive the prisoner might care to

suggest as the basis for the charge. Under this rule, a prison

official who believes that an inmate has filed a false complaint

had better be right, and able to prove it to the satisfaction of an

administrative hearing officer, on pain of discovery, trial, and

exposure to a money judgment.”

This would be bad policy, but is even more untenable as a

rule of constitutional law. The facts of this case make this

clear, where the majority has found that a trial is necessary to

assess the veracity of the parties' respective beliefs that

Brown's prison account was or was not overcharged by a few

dollars. I believe that the majority's ruling fails, on a number of

levels, to apply the proper standards for evaluating Brown's

claim of First Amendment retaliation, and I accordingly

dissent.

'’ By dismissing this as a "parade of horribles,” (Majority Op. at 14), the

majority presumably means to suggest that I am conjuring up a mere

theoretical possibility that is unlikely to occur with any frequency, if at all.

Yet, this very case features precisely the "horribles” with which I am

concerned -- namely, lengthy proceedings and a trial based solely upon

Defendants’ failure to persuade a hearing officer that Brown had engaged in

misconduct. Moreover, unless we are prepared to believe that prisoners

exercise more restraint in their filing of internal grievances than in their

pursuit of civil litigation, or unless subsequent panels are able to identify

limiting principles in the majority opinion that I have failed to discern, it

seems Clear to me that today's decision kicks off a veritable "parade" of

similarly unsubstantiated First Amendment retaliation claims that

nonetheless survive summary judgment.

-48a-

No. 01-1541

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CLEVELAND BROWN,

Plaintiff-Appellant,

v. ORDER

MICHAEL J. CROWLEY, ET AL.,

Defendants-Appellees.

ee ee ee ee ee

BEFORE: MOORE and GILMAN, Circuit Judges; and

ROSEN, District Judge.

The court having received a petition for rehearing en banc,

and the petition having been circulated not only to the original

panel members but also to all other active judges of this court,

and no judge of this court having requested a vote on the

suggestion for rehearing en banc, the petition for rehearing has

been referred to the original panel.

The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were fully

-49a-

considered upon the original submission and decision of the

case. Accordingly, the petition is denied. Judge Rosen would

grant rehearing for the reasons stated in his dissent.

ENTERED BY ORDER OF

THE COURT

Leonard Green, Clerk

“Hon. Gerald E. Rosen, United States District Judge for

the Eastern District of Michigan, sitting by designation.

-50a-

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

CLEVELAND BROWN,

Plaintiff,

Vv. Case No. 2:98-cv-122

HON. ROBERT HOLMES

BELL

MICHAEL CROWLEY, et al.,

Defendants.

OPINION AND ORDER APPROVING MAGISTRATE

GE’S RT COMMENDATION

The Court has reviewed the Report and Recommendation

filed by the United States Magistrate Judge in this action on

March 13, 2001. The Report and Recommendation was duly

served on the parties. The Court has received objections from

plaintiff and from defendants. In accordance with 28 U.S.C. §

636(b)(1), the Court has performed de novo consideration of

those portions of the Report and Recommendation to which

-Sla-

objection has been made. The Court now finds the objections

to be without merit.

Defendants argue that the magistrate judge erred in

concluding that plaintiff exhausted his administrative remedies.

Defendants concede that plaintiff exhausted his administrative

remedies, but argue that the exhaustion did not occur until after

plaintiff filed this lawsuit. Defendants, however, did not file

their motion until after plaintiff exhausted his administrative

remedies. While the Court agrees with defendants that a

prisoner plaintiff must exhaust administrative remedies prior to

filing his federal complaint, and that a prisoner may not

exhaust grievance remedies during the pendency of the

litigation, it would make no sense for this Court to now dismiss

this matter without prejudice and require plaintiff to file an

identical action, which would ultimately be dismissed on a

summary judgment motion. Thaddeus-X v. Wozniak, 2000

WL 712383 (6th Cir., May 23, 2000).

Plaintiff asserts that the magistrate judge erred in

recommending the dismissal of his retaliation claim. A

-52a-

plaintiff must establish three elements to support a claim of

retaliation: (1) that he was engaged in protective conduct, (2)

that an adverse action was taken against him that would deter a

person of ordinary firmness from continuing to engage in that

conduct, and (3) that the adverse action was motivated at least

in part by plaintiff's protected conduct. Shehee v. Lutrell, 199

F.3d 295, 300 (6th Cir. 1999); Thaddeus-X v. Blatter, 175 F.3d

378, 394 (6th Cir. 1999). Plaintiff argues that the evidence

establishes that defendants embezzled money from plaintiffs

prison account. Further, plaintiff alleges that a misconduct

ticket was written against him solely in retaliation for his

complaints regarding the alleged embezzlement.

While plaintiff may have stated a claim for retaliation,

plaintiff has failed to rebut defendants’ evidence in support of

their motion for summary judgment. Plaintiff satisfied the first

element of a retaliation claim by filing grievances against

prison officials, and complaining to the Michigan State Police.

Plaintiff has failed to show that the issuance of a misconduct

ticket for making a false claim would deter a person of

-53a-

ordinary firmness from continuing to file grievances or

complain about prison officials’ wrongful actions to the

Michigan State Police. The evidence in this case establishes

that defendants did not act wrongfully. Plaintiff received a

misconduct ticket because he made false allegations in his

grievances and a false allegation to the Michigan State Police.

The investigation by defendants determined that plaintiff's

claim had no merit. Regional Prison Administrator Richard

Johnson wrote to defendant Warden Mike Crowley requesting

that plaintiff be issued a major misconduct ticket. Johnson

explained that the allegation was investigated by internal

affairs and found to be without merit. Johnson stated that more

and more false complaints were being filed by prisoners.

Johnson stated that while prisoners should be able to file

legitimate complaints, they should be punished for filing false

complaints and a major misconduct ticket should be issued. As

a result, a misconduct ticket was issued. It is clear that this

misconduct ticket was issued only because defendants

considered plaintiffs allegation to be false and without merit.

-54a-

Under the facts presented in this case, it is clear that defendants

issued the misconduct ticket solely because they believed

plaintiff acted improperly and made false allegations.

Accordingly, plaintiff failed to establish a retaliation claim and

has failed to rebut defendants’ allegations. Plaintiff has

presented absolutely no evidence that can support his

allegation that defendants acted with any retaliatory intent in

issuing the misconduct ticket.

THEREFORE, IT IS ORDERED that the Report and

Recommendation of the Magistrate Judge (Docket #1 14) is

approved and adopted as the opinion of the Court.

Dated: April 9, 2001

ROBERT HOLMES BELL

UNITED STATES DISTRICT

JUDGE

-5Sa-

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

CLEVELAND BROWN,

Plaintiff,

Vv. Case No. 2:98-cv-122

HON. ROBERT HOLMES

BELL

MICHAEL CROWLEY, et al.,

Defendants.

/

JUDGMENT

In accordance with the Opinion and Order issued herewith,

IT IS HEREBY ORDERED that defendants’ motion for

summary judgment (Docket #104) is GRANTED and this case

is DISMISSED in its entirety.

IT IS FURTHER ORDERED that plaintiff's motion for

amend his complaint (Docket #102) and plaintiffs motion to

schedule telephone conference (Docket #115) are DENIED.

Dated: April 9, 2001

ROBERT HOLMES BELL

UNITED STATES DISTRICT

JUDGE

-S6a-

CLEVELAND BROWN, Plaintiff-

Appellant, v. MICHAEL

CROWLEY, Warden, et al.,

Defendants-Appellees.

No. 99-2216

UNITED STATES COURT OF

APPEALS FOR THE SIXTH

CIRCUIT

2000 U.S. App. LEXIS 21213

August 10, 2000, Filed

NOTICE:

{*1] NOT RECOMMENDED FOR _ FULL-TEXT

PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS

CITATION TO SPECIFIC SITUATIONS. PLEASE SEE

RULE 28(g) BEFORE CITING IN A PROCEEDING IN A

COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER PARTIES AND THE

COURT. THIS NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS REPRODUCED.

SUBSEQUENT HISTORY:

Reported in Table Case Format at: 2000 U.S. App. LEXIS

28283.

PRIOR HISTORY:

Western District of Michigan. 98-00122. Bell. 8/30/99.

DISPOSITION:

District court's judgment vacated in part and affirmed in part.

Brown's retaliation claim remanded.

-57a-

COUNSEL:

CLEVELAND BROWN, Plaintiff - Appellant, Pro se, Baraga,

MI.

For MICHAEL CROWLEY, Defendant - Appellee: Patrick J.

Wnight, Office of the Attorney General, Lansing, MI.

JUDGES:

Before: MOORE and CLAY, Circuit Judges; RICE, Chief

District Judge. *

* The Honorable Walter H. Rice, United States Chief

District Judge for the Southern District of Ohio, sitting

by designation.

OPINION:

ORDER

Pro se Michigan prisoner Cleveland Brown appeals a

district court judgment that dismissed his 42 U.S.C. § 1983

suit. The case has been referred to this panel pursuant to Rule

34(j)(i), Rules of the Sixth Circuit. We unanimously agree that

oral argument is not needed. See [*2] Fed. R. App. P. 34(a).

Brown sued multiple Michigan prison officials, claiming

that the defendants: (1) discriminated against him because he is

African-American and they are European-American; (2)

overcharged his prison account for amounts due as he was

transferred between different facilities in the Michigan prison

system; (3) denied him life's necessities because he had no

money for shampoo and toothpaste; (4) denied him contact

with his family because he could not afford stamps; and (5)

retaliated against him--after he complained to the state police

of the alleged embezzlement of his account--by issuing a

misconduct ticket against him.

-58a-

Citing to 28 US.C. § /915(e)(2)(B), the district court

dismissed all of Brown's claims except claim number three--

that he was denied shampoo and toothpaste--and claim number

four--that he was denied his right to associate with his family

because he was denied stamps. On the defendants' motion for

summary judgment, the district court dismissed claims three

and four and granted summary judgment in favor of the

defendants.

In his timely appeal, Brown argues that the district court

erred by rejecting his claims that the defendants: [*3] (1)

violated his right to due process by embezzling money from

his inmate account; (2) retaliated against him when he "blew

the whistle" on their embezzlement; (3) violated his First

Amendment rights by taking the money he needed to buy

stamps to write to his mother; and (4) violated the Eighth

Amendment by rendering him too impecunious to buy

shampoo or toothpaste. He also contends that the district court

erred by awarding costs to the defendants. Finally, Brown

requests that the case be remanded to a different district judge.

Both parties have filed briefs.

Initially, we note that Brown has provided no factual

touchstone or legal reasoning to support his demand that the

case be remanded to a different district court judge. The district

court record also fails to illuminate this contention. This claim

has been abandoned as it is inadequately briefed. See Enertech

Elec., Inc. v. Mahoning County Comm'rs, 85 F.3d 257, 259

(6th Cir. 1996). Brown has also wholly failed to brief his

district court claims concerning equal protection or access to

the courts. These claims are also abandoned.

Upon review, we conclude that the district court properly

rejected Brown's due process [*4] claim as frivolous. We,

however, conclude that the district court erred by dismissing

Browu's retaliation claim as frivolous and for failure to state a

claim pursuant to 28 U.S.C. § 19/5(e)(2)(B). Our review is de

-59a-

novo. See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th

Cir. 1997). We construe the complaint in the light most

favorable to the plaintiff, accept the complaint's factual

allegations as true, and determine whether it is beyond a doubt

that the plaintiff can prove no set of facts in support of his

claims that would entitle him to relief. The challenged

complaint must contain either direct or inferential allegations

concerning all material elements necessary to sustain a

recovery under some viabie legal theory. See Allard v.

Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240

(6th Cir. 1993).

The due process claim was properly dismissed. Brown

claimed that the defendants wrongfully deducted amounts from

his prison account and did not remedy the accounting error

even after he showed the error to them. The decision of Parratt

v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908

(1981), [*5] overruled in part by Daniels v. Williams, 474

U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986), is applicable

to the alleged wrongful seizure of Brown's money. Brown may

litigate his banking dispute in the Michigan courts. See Mich.

Comp. Laws Ann. § 600.8401(1); National Communication

Sys., Inc. v. Michigan Pub. Serv. Comm'n, 789 F.2d 370, 373

(6th Cir. 1986). As Brown has adequate state court remedies

available to redress the alleged wrong, his claims in this regard

were properly dismissed. See Hudson v. Palmer, 468 U.S. 517,

531-33, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984).

Brown's retaliation claim, however, should not have been

dismissed under § 1915(e\(2)(B). After filing grievances

regarding the money taken from his prison account, Brown

contacted the Michigan State Police and requested that

criminal charges be brought against the defendants for

embezzlement. The matter was submitted to the internal affairs

department of the Bureau of Prisons and that department

reported that the matter had been investigated previously and

informed Brown that his claim lacked merit. Brown averred

-60a-

that three of the defendants then prosecuted {*6] a major

misconduct ticket that charged him with "interference with

administration of rules." The disciplinary board acquitted

Brown of the charge and dismissed the misconduct ticket.

A retaliation claim has three elements: (1) the prisoner

engaged in protected conduct; (2) an adverse action was taken

against the prisoner that would deter a person of ordinary

firmness from continuing to engage in that conduct; and (3) a

causal connection exists between the first two elements--that

is--the prisoner's protected conduct motivated at least in part

the adverse action. See Thaddeus-X v. Blatter, 175 F 3d 3 78,

394 (6th Cir. 1999) (en banc). In this case, Brown has alleged

facts sufficient to assert a viable retaliation claim. Brown

alleges that he filed grievances against prison officials, which

is protected conduct under the First Amendment. See Noble v.

Schmitt, 87 F.3d 157, 162 (6th Cir. 1996). Brown also alleges

that he was prosecuted by the defendants for "interference with

rules," and we believe that an intra-prison prosecutiin may

constitute an adverse action that would deter a ‘~rson of

ordinary firmness from engaging in the protected conduct at

issue. [*7] Finally, Brown alleges that his protected activity

motivated the alleged adverse action taken by the defendants.

Because Brown has alleged facts sufficient to withstand a

dismissal for failure to state a claim, we vacate the district

court's judgment on Brown's retaliation claim and remand that

claim for further proceedings.

Brown's First and Eighth Amendment claims were properly

dismissed, albeit at the summary-judgment Stage. We review

de novo a grant of summary judgment. See Terry Barr Sales

Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1 996).

Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

+. OPW Mie fone erimpey piper

Athi hhte tie 4 deans ok cas on ent mee dicate

-6la-

56(c). The court views the facts and all inferences drawn

therefrom in the light most favorable to the nonmoving party.

See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

When confronted with a properly supported motion for

summary [*8] judgment, the nonmoving party must set forth

specific facts showing that there is a genuine issue for trial. A

genuine issue for trial exists "if the evidence is such that a

reasonable jury could return a verdict for the nonmoving

party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91

L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

The district court properly dismissed Brown's allegation of

a violation of the Eighth Amendment due to the alleged denial

of personal hygiene items. The Eighth Amendment prohibits

deliberate indifference to the needs of prisoners, including the

basic elements of hygiene. See Estelle v. Gamble, 429 U.S. 97,

104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Although Brown

alleged that, by denying him indigent status, the defendants

denied him the money he needed to buy shampoo and

toothpaste, Brown's allegations did not show that the

defendants knowingly forced him to go without shampoo and

toothpaste. None of the named defendants were involved in the

denial of Brown's indigent status. Moreover, competent

summary judgment evidence shows that Brown was also

denied indigent status, to some degree, because he refused a

work or program [*9] assignment in the twelve months prior

to the assessment of his indigent status. Nothing indicates that

Brown was deliberately denied shampoo or toothpaste by any

named defendant who scught to punish him.

The district court properly dismissed Brown's claim that he

suffered a First Amendment violation because he was unable to

afford stamps he needed to write to his mother during a four-

month period. The First Amendment does not compel prison

Officials to provide indigent prisoners with unlimited free

postage and materials for non-legal mail. See Hershberger v.

-62a-

Scaletta, 33 F.3d 955, 956 (8th Cir. 1 994). In Hershberger, the

Eighth Circuit held that inmates who were not permitted to

work for money, nor provided with any allowance or other

form of income, must be provided with one first-class stamp

per week for legal mail. /d. at 956. There is no requirement

that a prisoner receive any ration for non-legal mail. Moreover,

Brown has failed to present any competent summary-judgment

evidence to contradict the defendants’ showing that, regardless

of his indigent status, Brown could have made collect

telephone calls to his family, received money from his [*10]

family to pay for postage, or dialed a direct phone call in the

event of an emergency.

For the foregoing reasons, we vacate the district court's

judgment to the extent that it dismissed Brown's retaliation

claim and remand that claim to the district court. In light of our

ruling on Brown's retaliation claim, we also vacate the district

court's order granting costs to the defendants, as the award of

costs was premature. In all other respects, we affirm the district

court's judgment. Rule 34(j(2)(C), Rules of the Sixth Circuit.