# Appendix — Crowley v. Brown

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1711%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 823

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1711%3A2. Public record. Not legal advice.