IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40103
Summary Calendar
JERRY E. EASLEY,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-96-CV-332
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December 9, 1997
Before DUHE’, DeMOSS and DENNIS, Circuit Judges.
PER CURIAM:*
Jerry E. Easley, # 421286, appeals the dismissal of his 42
U.S.C. § 1983 action as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). Easley argues that the district court’s
holding that he had no standing and that his claim was not ripe
was erroneous. We agree in part. "The basic inquiry is whether
the `conflicting contentions of the parties . . . present a real,
substantial controversy between parties having adverse legal
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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interests, a dispute definite and concrete, not hypothetical or
abstract.'" Babbitt v. United Farm Workers Nat. Union, 442 U.S.
289, 298 (1979) (citation omitted). A plaintiff that challenges
a policy "must demonstrate a realistic danger of sustaining a
direct injury as a result of the [policy's] operation or
enforcement." Id. However,"`[o]ne does not have to await the
consummation of threatened injury to obtain preventive relief.
If the injury is certainly impending that is enough.'" Id.
(citations omitted).
Easley’s claims of violations of his rights to substantive
due process and equal protection are not yet ripe. The TDCJ
policy allows Easley to use his word processor as long as it is
working. Although he has alleged that his machine is having some
problems, he has not alleged that it has broken completely so
that it is useless unless repaired. Therefore, he has not
alleged the “immediate injury” necessary to sustain ripeness.
See Cinel v. Commick, 15 F.3d 1338, 1341 (5th Cir. 1994). The
district court’s dismissal for lack of ripeness is affirmed as to
Easley’s subtantive due process and equal protection claims.
The district court did not address Easley’s claim of
retaliation through punitive transfers and disciplinary action
for exercising his First Amendment right to complain of prison
conditions. Easley has standing to bring this claim. Easley
alleged in the district court and argues on appeal that he was
retaliated against for his legal activities by a pattern of
No. 97-40103
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punitive transfers and a disciplinary action designed to
interfere with his case in No. C-92-323, allegations which the
district court ignored.
"To state a claim of retaliation an inmate must allege the
violation of a specific constitutional right. . . .” Woods v.
Smith, 60 F.3d 1161, 1166 (5th Cir. 1995), cert. denied, 116
S. Ct. 800 (1996). A retaliation claim focuses on “whether there
has been an obstruction of the exercise of a constitutional
right” separate and apart from the validity or legitimacy of the
underlying conduct. Id. at 1165. Although a prisoner has no
constitutional right to be housed in a particular facility, Olim
v. Wakinekona, 461 U.S. 238, 244-45 (1983), prison officials may
not retaliate against an inmate by continuously transferring him
for complaining of prison conditions or treatment. See Gibbs v.
King, 779 F.2d 1040, 1046 (5th Cir. 1986)(prison officials may
not retaliate against prisoner for exercising right of access to
the courts). Easley has met the threshold requirement of
alleging a violation of a First Amendment right.
In addition to alleging the violation of a constitutional
right, the inmate must also allege and “be prepared to establish
that but for the retaliatory motive the complained of incident
. . . would not have occurred.” Woods, 60 F.3d at 1166. Mere
conclusionary allegations of retaliation will not suffice. Id.
The inmate must produce direct evidence of the defendants'
motivation, or "allege a chronology of events from which
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retaliation may plausibly be inferred.” Id. (internal quotation
marks and citation omitted). Easley alleged that he was
transferred or placed in solitary confinement every time his
trial in No. C-92-323 approached, which deprived him of access to
his word processor for trial preparation. He alleged that these
actions were taken to interfere with his litigation. These
allegations allow a plausible inference of retaliation. Easley
has alleged all of the elements of a retaliation claim. See
Johnson, 110 F.3d at 310. This claim is be remanded for further
development.
Easley alleges that he was retaliated against for pursuing
his own legal activities and for his activities as a writ writer.
His activities as a writ writer are not constitutionally
protected and do not support a retaliation claim. See Johnson v.
Rodriguez, 110 F.3d 299, 310-11 (5th Cir. 1997); Tighe v. Wall,
100 F.3d 41, 43 (5th Cir. 1996).
In summary, the district court abused its discretion in
dismissing Easley’s action as frivolous at this stage of the
litigation without allowing further factual development of his
retaliation claim. The district court’s judgment is vacated in
part, and Easley’s claim of retaliation in connection with the
deliberate actions taken to interfere with his personal
litigation in no. C-92-323 is remanded for further development.
The district court’s judgment is AFFIRMED in all other respects.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.