Morris v. Powell

• Decision Date: 15 May 2006
• Docket Number: No. 05-40578 Summary Calendar.,05-40578 Summary Calendar.
• Parties: David Gene MORRIS, Plaintiff-Appellant, v. Christy POWELL, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 682

449 F.3d 682

David Gene MORRIS, Plaintiff-Appellant, v. Christy POWELL, et al., Defendants-Appellees.

No. 05-40578 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 15, 2006.

David Gene Morris, Tennessee Colony, TX, pro se.

Seth Byron Dennis, Asst. Atty. Gen., Law Enforcement Defense Div., Austin, TX, for Defendants-Appellees.

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

Before SMITH, GARZA and PRADO, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Inmate David Morris sued prison officials under 42 U.S.C. § 1983 for alleged retaliation against him for exercising his First Amendment right to use the prison grievance system. The district court determined that prisoners bringing such claims must allege more than a de minimis retaliatory act to establish a constitutional violation. Finding that the retaliation alleged by Morris did not pass this bar, the court granted the defendants' motion for summary judgment, from which Morris appeals. Because we agree with the district court's choice of legal standards but disagree in part with its application of the law to the facts, we vacate and remand.

I.

On November 25, 1997, Morris submitted grievances to prison authorities concerning the way defendant Christy Powell ran the Telford Unit's commissary, where Morris was assigned to work. On December 1 of the same year, Morris was moved from the commissary to the kitchen. He worked in the kitchen's pot room on December 5 and was moved from the kitchen to the butcher shop on December 8. In May 1998 he was transferred from the Telford Unit to the Terrell Unit, where he presently resides.

Morris alleges that prison officials at the Telford Unit assigned him to a more taxing job in the kitchen in retaliation for the exercise of his constitutional right to file complaints against Powell. He also claims that his transfer to the allegedly less desirable Terrell Unit was an act of retaliation.

The defendants' first motion for summary judgment was denied on March 28, 2003. The district court found that disputed issues of material fact existed as to whether the transfer of Morris to different work assignments, and eventually to another prison, was a retaliatory response to his complaints against Powell. The defendants' motion for reconsideration was denied, and an appeal to this court followed. We remanded for consideration of whether an inmate's retaliation claim must allege more than a de minimis adverse act. Morris v. Powell, 114 Fed.Appx. 629 (5th Cir.2004).

On remand, the district court held, as a matter of first impression in this circuit, that an inmate must allege more than a de minimis retaliatory act to proceed with a claim for retaliation. The court further determined, without discussion, that the retaliation alleged by Morris was de minimis, so the court dismissed the claim.

Morris contends that this court should not adopt the de minimis standard. In the alternative, he argues that even if de minimis retaliatory acts are deemed insufficient to support a § 1983 claim for retaliation, the retaliation he alleges was not de minimis.

II.

We review a grant of summary judgment de novo, applying the same standard as does a district court. BellSouth Telecommunications, Inc. v. Johnson Bros. Corp., 106 F.3d 119, 122 (5th Cir.1997). Summary judgment is appropriate when the record demonstrates that there is no issue of material fact and that the moving party is entitled to judgment as a matter of law. Martinez v. Bally's La., Inc., 244 F.3d 474, 476 (5th Cir.2001).

A prison official may not retaliate against or harass an inmate for complaining through proper channels about a guard's misconduct. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.1995). "To prevail on a claim of retaliation, a prisoner must establish (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." McDonald v. Steward, 132 F.3d 225, 231 (5th Cir.1998).

We must interpret the third prong of this test. The state argues that the district court correctly determined that acts of retaliation so inconsequential as to be considered de minimis do not satisfy the "retaliatory adverse act" requirement. Morris argues that any act of retaliation, however minor, is an actionable violation of an inmate's constitutional rights. He cites Lewis v. Woods, 848 F.2d 649, 651 (5th Cir.1988), for the proposition that a violation of constitutional rights is never de minimis. The question, however, is not whether the violation of Morris's constitutional rights was de minimis, but whether any violation occurred at all. To establish a constitutional violation, an inmate must show that he suffered a qualifying adverse retaliatory act. If the retaliation alleged by Morris does not pass this bar, he has suffered no constitutional injury.

Whether an allegation of de minimis retaliatory acts can support a retaliation claim is an issue of first impression in this court. The approach we have taken in deciding past inmate retaliation claims is, however, instructive. We have never upheld a retaliation claim that alleges only inconsequential, or de minimis, retaliatory acts by prison officials. Rather, our precedent is consistent with the proposition that an inmate must allege more than de minimis retaliation to proceed with such a claim.

In Jones v. Greninger, 188 F.3d 322, 325-26 (5th Cir.1999), we affirmed the dismissal of a claim alleging that the inmate had been restricted to five hours a week in the law library in retaliation for filing grievances. Although retaliatory intent was properly alleged, the inmate's claim failed because the retaliatory adverse acts did not rise to the level of a constitutional violation. Similarly, in Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.1986), we upheld a dismissal, writing that "a single incident, involving a minor sanction, is insufficient to prove [retaliatory] harassment." Thus, without explicitly applying a de minimis test, this court has refused to recognize retaliation claims based only on allegations of insignificant retaliatory acts.¹

When confronted with more serious allegations of retaliation, however, we have not hesitated to recognize the legitimacy of an inmate's claim. In Hart v. Hairston, 343 F.3d 762, 764 (5th Cir.2003), we reversed summary judgment dismissing a retaliation claim where the alleged adverse act was twenty-seven days of commissary and cell restrictions. Although we declined to adopt such a test, we noted that "the penalties imposed on Hart do not qualify as `de minimis' under various standards cited by other circuits."

Likewise, in Parker v. Carpenter, 978 F.2d 190, 192-93 (5th Cir.1992), we held that retaliation in the form of transferring the inmate to a more violent section of the prison was sufficient to support a retaliation claim. In Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir.1989), we overturned summary judgment where an inmate alleged that he had been transferred to a less desirable job within the prison in retaliation for filing grievances. The inmate, who had worked in a light labor job, was moved for forty-seven days to a job that subjected him to extreme hardship and serious health risks.²

As we acknowledged in Hart, other circuits have provided persuasive guidance on the quantum of retaliation necessary to support an inmate's § 1983 claim.³ The District of Columbia Circuit has held that an inmate's retaliation claim must allege adverse acts that "would chill or silence a person of ordinary firmness from future First Amendment activities." Crawford-El v. Britton, 93 F.3d 813, 826 (D.C.Cir. 1996) (en banc), vacated on other grounds, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). That reasoning was left undisturbed when the Supreme Court vacated the decision. The Court wrote: "The reason why such retaliation (for the exercise of First Amendment rights) offends the Constitution is that it threatens to inhibit exercise of the protected right." Crawford-El v. Britton, 523 U.S. 574, 588 n. 10, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). See also Hartman v. Moore, ___ U.S. ___, at ___, 126 S.Ct. 1695, at ___, ___ L.Ed.2d ___, 2006 WL 1082843, at *4 (U.S. Apr. 26, 2006). The Sixth Circuit later held that the D.C. Circuit's Crawford-El standard "is the appropriate standard by which to determine what type of action is sufficiently adverse to be cognizable in a retaliation claim under § 1983." Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir.1999).

In adopting this standard, the Sixth and D.C. Circuits based their reasoning on the Seventh Circuit's rejection, in the employment retaliation context, of de minimis retaliation claims: "It would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise. . . ." Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982). The Second Circuit has employed a similar de minimis standard, asking whether the retaliation alleged by an inmate rose to the level of that which would deter the exercise of a constitutional right. See Davidson v. Chestnut, 193 F.3d 144, 149-50 (2d Cir.1999).

The de minimis standard enunciated by our sister circuits is consistent with this court's precedent. The standard achieves the proper balance between the need to recognize valid retaliation claims and the danger of "federal courts embroil[ing] themselves in every disciplinary act that occurs in state penal institutions." Woods, 60 F.3d at 1166. The purpose of allowing inmate retaliation claims under § 1983 is to ensure that prisoners are not unduly discouraged from exercising constitutional rights. See Crawford-El, 523 U.S. at 588 n. 10, 118 S.Ct. 1584. Some acts, though maybe motivated by retaliatory intent, are so de minimis that they would not deter the...