Bibbs v. Early

• Decision Date: 12 August 2008
• Docket Number: No. 07-10452.,07-10452.
• Citation: 541 F.3d 267
• Parties: Juarez Miguel BIBBS, Plaintiff-Appellant, v. Leslie EARLY; Jamie Burkholder; Richard Gibson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

541 F.3d 267

Juarez Miguel BIBBS, Plaintiff-Appellant, v. Leslie EARLY; Jamie Burkholder; Richard Gibson, Defendants-Appellees.

No. 07-10452.

United States Court of Appeals, Fifth Circuit.

August 12, 2008.

Juarez Miguel Bibbs, Beeville, TX, pro se.

Christopher Champion Wike, Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, STEWART and SOUTHWICK, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Juarez Miguel Bibbs, a prisoner in Amarillo, Texas, brought an action under 42 U.S.C. § 1983. He alleged that after he lodged several grievances with correctional officers, they turned on a "purge fan" in his cell for approximately four and one-half hours on four consecutive nights, causing the temperatures in his cell to drop below freezing. The district court granted Defendants' summary judgment motion based on a magistrate judge's recommendation, finding that the officers' alleged retaliation was de minimis. Bibbs appealed.

I

Juarez Miguel Bibbs, Texas prisoner # 649087, is incarcerated in Amarillo, Texas at the Clements Unit. On September 12, 2005, he filed a complaint under § 1983. He alleged that each of the Defendants — officers at the unit — had retaliated against him for filing grievances. He filed the grievances after Officers Early and Burkholder in October and November 2004 allegedly "failed to conduct" their "job duties properly"¹ while assigned to Bibbs' pod. When these officers and Officer Gibson were assigned to his pod in December 2004, Bibbs alleged that they turned on a "purge fan" for four consecutive nights, subjecting him to freezing temperatures for approximately four and one-half hours each night.² The fans allegedly "pulled the outside air into the pod and cells. The outside air on these dates was about 20 degrees." "It was so cold," he alleged, "I had to wake up put on all my clothes and use two (2) blankets to try to keep warm." In his later objection to the magistrate's report, Bibbs attached records showing that the low temperature in Amarillo on December 13 and 14, two of the days when the purge fan was allegedly running, was in the 20's each day. As a result of these conditions, Bibbs alleged that he was unable to eat and had "aches/pains in my back, side and head ... chills ... headaches," and a "sore and swollen" throat but that he avoided the three-dollar fee for seeing a doctor by treating his "flu symptoms" with "cough syrup and cold tablets."

His original complaint also alleged that he alerted Defendants to the conditions but they did not remedy them. When he asked Officer Early to turn the fan off she allegedly responded, "The fan is on automatic. I can't turn it off," while a later inquiry to the maintenance department by Bibbs allegedly showed that the fan was not automatic. According to Bibbs' complaint, Officers Burkholder and Gibson gave similar responses when he asked them to turn off the fan, stating, "The fan is on automatic and I have no control over the fan." "Then as he walked off he laughed and said, `You mother-f____rs gone stop writing grievances.'" Officer Gibson allegedly replied, "It's not cold in here, it feels good. If you all would stop writing grievances you would not have to worry about it being cold. You know we stick together."

The case was referred to a magistrate. Defendants moved for summary judgment, submitting Bibbs' medical records to show that he had not requested medical assistance, urging qualified immunity,³ and maintaining that Bibbs' allegations failed to state a claim of retaliation and if Bibbs suffered any injury, it was de minimis. Bibbs filed a response in opposition and attached supporting affidavits. The magistrate prepared a report and recommendation, finding that Bibbs provided "allegations which a fact-finder could consider sufficient to establish retaliatory intent and causation" but that

the injury of which plaintiff complains, "flue [sic] like symptoms" relieved by over the counter medication and not serious enough in severity or duration to warrant plaintiff making any request for medical attention, is not nearly as sustained or as severe as those the Fifth Circuit has found sufficient to state a claim of retaliation. Consequently, the claimed injury is de minimis for purposes of First Amendment analysis. Further, plaintiff ... was not deterred from exercising his First Amendment right to file subsequent grievances, as shown by his prompt filing of the Step 1 and Step 2 grievance on the retaliation claim forming the basis of the instant suit.

Bibbs filed an objection to the report and recommendations, urging that his symptoms complained of were sufficiently severe to support a retaliation claim.

Prior to the magistrate's report, Bibbs had made a motion to join unnamed defendants in their individual capacities. He alleged that these defendants were assigned to his pod with the existing Defendants, that they "knew the purge fan was on pulling the 20 degree temperture [sic] into the cells causing the inmates to be subjected to the extreme cold. They could have turned the fan off but did not." The district court denied this motion, finding, "At most, plaintiff's allegations against the prospective four additional defendants state a claim of negligence, not retaliation and not deliberate indifference. Section 1983 imposes liability for deprivation of constitutionally protected rights, not for violations of tort duties of care." It concluded, "As to the prospective additional four unnamed defendants, plaintiff has failed to state a claim on which relief can be granted; and his motion is, therefore, DENIED." On March 7, 2007, the court also entered an order granting Defendants' summary judgment motion and dismissing all of Bibbs' claims with prejudice. Bibbs filed a motion for reconsideration, which the court denied. Bibbs then appealed.

II

"The law of this circuit is clearly established ... that a prison official may not retaliate against or harass an inmate ... for complaining to a supervisor about a guard's misconduct."⁴ "To state a valid claim for retaliation under section 1983, a prisoner must allege (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation."⁵ We review de novo a district court's grant of summary judgment to Defendants on a retaliation claim,⁶ placing the burden on the moving party to show that there is no genuine issue of material fact and, if that burden is met, on the nonmoving party to "set forth specific facts showing the existence of a genuine issue for trial."⁷ Defendants do not dispute that Bibbs alleged facts and produced evidence to establish a specific constitutional right or Defendants' intention to retaliate against him for exercising his constitutional rights.⁸ However, they maintain that the district court correctly found that Bibbs' retaliation claim was de minimis and that, alternatively, we should affirm the district court's holding because there was inadequate summary judgment evidence of causation.⁹ Bibbs urges that the court erred in granting Defendants' summary judgment motion and dismissing his claims because there was a genuine issue of material fact as to whether his retaliation claim involved something more than de minimis retaliation.

"Retaliation against a prisoner is actionable only if it is capable of deterring a person of ordinary firmness from further exercising his constitutional rights."¹⁰ Where an inmate was allegedly transferred to a food services job and thus "limited to approximately five hours per week to conduct legal research," this evidence was inadequate to support a retaliation claim, as five hours of library time did not violate his right of access to the court.¹¹ Similarly, where an inmate alleged that a defendant retaliated against him by removing him "from his job as inmate counsel" and later transferring him to another prison, this was inadequate to support a retaliation claim, as "[a] prisoner has no constitutionally protected interest in a particular facility or a specific work assignment."¹²

But an alleged adverse retaliatory act against an inmate was not de minimis where, following an inmate's filing of a grievance, an official "filed a disciplinary report" against the inmate and the inmate alleged that another official "accepted the disciplinary charge, that he was convicted in a disciplinary proceeding ..., and that he was punished with 27 days of commissary and cell restrictions."¹³ In Parker v. Carpenter, a pretrial detainee, after allegedly having a "verbal altercation with a jail officer," was transferred "from the low-risk minimum security section to the overcrowded violent inmate section" of a jail.¹⁴ He also alleged that in the violent inmate section, he was "denied access to a bed to lay down on, despite jail official's [sic] knowledge of his serious back condition."¹⁵ We found that he had stated a cognizable claim for retaliation under § 1983, particularly "because pretrial detainees are entitled to protection from adverse conditions of confinement created by prison officials for punitive purposes."¹⁶ And in Jackson v. Cain, where an inmate claimed "that he was moved from a desirable job assignment to a `punishment crew' because he wrote an arguably offensive remark on the clothes release form and also a letter to the prison warden,"¹⁷ we held that the inmate had "raised an issue of material fact regarding the motives behind the prison authorities' decision to switch him" to the "punishment crew."¹⁸ As such, we held that "summary judgment against ... [plaintiff] was inappropriate."¹⁹ We recognized that "a prisoner has no constitutional right to a specific work assignment" — "[t]here is no question that the prison officials had the general authority to reassign .. . [plaintiff] to new work."²⁰ "This general...