F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 10 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CRAIG BRYAN NORTHINGTON,
Plaintiff-Appellant,
v. No. 99-1184
(D.C. No. 94-N-449)
ARISTEDES W. ZAVARAS, (D. Colo.)
Executive Director, Colorado
Department of Corrections;
ROBERT FURLONG, Superintendent;
CPT. R. DALE KENNY, Supervisor;
ENDRE SAMU, AAHB Hearing
Officer; SGT. MICKENS;
OFFICER BLASSINGAME;
OFFICER MORRISSEY; DENNIS
HOUGHNON, Investigator and all
other persons presently unknown,
Limon Correctional Facility,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK , McKAY , and BRISCOE , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
In this prisoner civil rights action, plaintiff-appellant Craig Bryan
Northington made six claims for relief against a number of defendants employed
by the Colorado Department of Corrections at the Limon Correctional Facility.
The district court entered summary judgment in favor of all defendants and
Northington now appeals this ruling. We affirm. 1
FACTS
Generally, Northington maintains that defendants singled him out for
mistreatment in retaliation for his legal efforts on behalf of minority inmates and
on his own behalf. In prison disciplinary proceedings, Northington was an
authorized inmate representative, a prison job which entailed investigating and
1
We note that the defendants listed in the caption and mentioned in the body
of the filings appear to change from one submission to the next, sometimes
without explanation. Northington has conceded that defendant Zavaras is not
a proper party to this case and that he is not pursuing his claims against certain
other parties. See Reply Br. at 11 (acknowledging lack of allegations against
defendant Conrad and, perhaps, defendant Koch). Northington’s appellate briefs
allege wrongful actions on the part of defendants Bergman, Carpenter, and
McGowan, but do not list them in the appellate caption. In light of our
disposition of this case, however, we need not sort through the various
permutations of named defendants.
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defending inmates accused of violating the code of penal discipline. During a
series of hearings scheduled from February 1993 through January 1994,
Northington attempted to defend Hispanic inmates by arguing that the accusations
against them were racially motivated. Defendant Samu allegedly discouraged him
from pursuing this tactic by kicking him under the table at hearings, telling him to
keep his mouth shut, attempting to turn accused inmates against him by
disparaging his effectiveness as an inmate representative, and threatening him
with numerous other retaliatory measures. In addition, defendants Kenney,
Morrissey, Houghnon, Mickens, Bergman, Carpenter, and McGowan allegedly
threatened or undertook various reprisals in reaction to Northington’s continued
claims of bias in the disciplinary system.
Northington also filed numerous grievances in the prison system and
complaints in federal court asserting violations of his own rights. 2
According to
2
Northington was at least partially successful in his court actions. See, e.g. ,
Northington v. Marin , 102 F.3d 1564 (10th Cir. 1996) (affirming a judgment
entered against a Denver county deputy sheriff for Eighth Amendment violations);
Northington v. Jackson , 973 F.2d 1518 (10th Cir. 1992) (affirming in part and
reversing in part the dismissal of civil rights claims against Denver sheriff’s
deputies, correction officers, and the Denver Sheriff’s Department); Northington
v. Furlong , No. 96-1260, 1997 WL 242255 (10th Cir. May 12, 1997)
(unpublished) (affirming in part and reversing in part the entry of summary
judgment on civil rights claims concerning procedures related to urine testing and
resulting disciplinary charges); Northington v. McGoff , No. 91-1252, 1992 WL
149918 (10th Cir. June 25, 1992) (unpublished) (affirming in part and reversing
in part the dismissal of a § 1983 action alleging that employees of the Colorado
(continued...)
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Northington, his litigation activities resulted in additional mistreatment:
punching in the arm by defendant Blassingame, whose wife had been named in
one of his lawsuits; disproportionate cell and body searches; seizure of legal
materials; opening of legal mail outside of his presence; unfair administration of
urine testing, resulting in wrongful charges of failure to obey an order and
a positive urinalysis for opiates; biased proceedings in connection with the
urinalysis charges; imposition of unauthorized and unjustified punishment for
urinalysis offenses, including a lengthy suspension of visitation rights and the
revocation of his position as inmate representative; and an involuntary transfer,
without the opportunity for a hearing, to the San Carlos Correctional Facility,
a prison facility for inmates who take medications for mental illnesses.
In his complaint, Northington made claims under 42 U.S.C. §§ 1981, 1983,
and 1985, alleging that the defendants’ retaliatory actions and related conspiracy
violated his constitutional rights to equal protection of the laws, free speech,
access to the courts and counsel, due process of law, and also his rights to be free
from unreasonable search and seizure and cruel and unusual punishment.
Additionally, Northington asserted pendent state law claims. In a detailed
recommendation, the magistrate judge concluded that defendants were entitled to
2
(...continued)
state prison system violated his due process rights and retaliated against him).
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summary judgment on Northington’s federal claims. The district court adopted
the magistrate’s recommendation and entered summary judgment in favor of
defendants. This appeal followed.
DISCUSSION
We review the grant of summary judgment de novo, applying the same legal
standard as the district court under Fed. R. Civ. P. 56(c). See Lopez v. LeMaster ,
172 F.3d 756, 759 (10th Cir. 1999). Summary judgment is appropriate only when
“there is no genuine issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In applying this
standard, “we examine the factual record and reasonable inferences therefrom in
the light most favorable to the party opposing the motion.” Lopez , 172 F.3d at
759 (citation omitted). “Where the nonmovant will bear the burden of proof at
trial on a dispositive issue, however, that party must go beyond the pleadings and
designate specific facts so as to make a showing sufficient to establish the
existence, as a triable issue, of an element essential to that party’s case in order to
survive summary judgment.” Id.
The allegations in this case center on Northington’s perception that
defendants’ actions were all taken in retaliation for either his vigorous defense
of other inmates or pursuit of his own litigation. “We have held that [p]rison
officials may not retaliate against or harass an inmate because of the inmate’s
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exercise of his constitutional rights. This principle applies even where the action
taken in retaliation would be otherwise permissible.” Peterson v. Shanks ,
149 F.3d 1140, 1144 (10th Cir. 1998) (quotations and citation omitted; alteration
in original). Nonetheless,
an inmate is not inoculated from the normal conditions of
confinement experienced by convicted felons serving time in prison
merely because he has engaged in protected activity. Accordingly,
a plaintiff must prove that ‘but for’ the retaliatory motive, the
incidents to which he refers . . . would not have taken place. An
inmate claiming retaliation must allege specific facts showing
retaliation because of the exercise of the prisoner’s constitutional
rights.
Id. (quotations and citation omitted).
Allegations of retaliation for a prisoner’s efforts in defending and assisting
other inmates have been addressed in Smith v. Maschner , 899 F.2d 940 (10th Cir.
1990). In that case, we stated:
[The plaintiff] alleged that defendants retaliated in response to his
“jailhouse lawyering” on behalf of other inmates. [The plaintiff]
does not have a protected interest in providing legal representation to
other inmates. . . . [The plaintiff] argues only that his fellow inmates
were deprived of his assistance. Prison inmates do not possess the
right to a particular prisoner’s help in preparing their legal materials,
so long as prison officials make other assistance available. Thus,
even assuming [the plaintiff] would have standing to assert his fellow
prisoners’ constitutional claims, there are no claims to assert.
Id. at 950 (citations omitted). We are bound by this prior circuit authority. 3
3
We recognize that other federal courts have held that, if a state creates
(continued...)
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Moreover, Northington has not asserted that he assisted the minority
inmates in an attempt to change prisoners’ conditions of confinement generally, or
that his efforts went beyond legal action pursued for the benefit of the represented
inmates. See id. (holding that litigation undertaken to “bring about social change
and protect constitutional rights in the prison is a ‘form of political expression’
and ‘political association’” protected by the First Amendment) (quotation
omitted). Accordingly, the actions Northington ties to his aid of other inmates
cannot support a claim of retaliation for the exercise of his own constitutional
rights. 4
3
(...continued)
a position such as inmate representative, it must allow the representative
to engage in his duties without fear of retaliation. See Newsom v. Norris ,
888 F.2d 371, 375 (6th Cir. 1989); Rizzo v. Dawson , 778 F.2d 527, 532 (9th Cir.
1985); Alnutt v. Cleary , 913 F. Supp. 160, 169-70 (W.D.N.Y. 1996); Wiideman v.
Angelone , 848 F. Supp. 136, 139 (D. Nev. 1994); see also Thaddeus-X v. Blatter ,
175 F.3d 378, 407 (6th Cir. 1999) (Merritt, Circuit Judge, concurring in part and
dissenting in part) (stating that prison officials may not approve inmate
representation, then withdraw the consent in retaliation for a lawsuit that
criticized prison officials without violating the right of access provision of the
First Amendment). But see Tighe v. Wall , 100 F.3d 41, 43 n.1 (5th Cir. 1996)
(rejecting the reasoning of courts which have found that inmates have a First
Amendment right to represent other inmates).
4
Citing Thaddeus-X v. Blatter , 110 F.3d 1233 (6th Cir. 1997), vacated
and superseded , 175 F.3d 378 (6th Cir. 1999), Northington argues on appeal that
he has standing to raise the other inmates’ claims because the inmates lacked the
language ability and legal skills to pursue their own grievances and court cases.
See Smith , 899 F.2d at 950 (stating that there is controversy in the circuits on the
issue of whether a prisoner has standing to assert his fellow inmates’ right of
access). We decline to address this issue here. See Tele-Communications, Inc. v.
(continued...)
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Northington’s claims of retaliation for the pursuit of his personal
grievances and lawsuits are also insufficient to withstand summary judgment.
Although Northington provides specific instances of unfavorable treatment,
he fails to show that, but for the alleged retaliatory motive, he would have been
treated differently. See Smith , 899 F.2d at 949-50. The defendants have come
forward with reasons for essentially every action taken against him. For instance,
they have provided evidence that nonrandom drug testing and searches were
related to information that Northington was attempting to bring contraband into
the prison after returning from a court appearance, that Northington’s punishment
was imposed for a positive urinalysis and failure to obey an order, and that his
legal mail was unintentionally opened in the course of handling a high volume of
inmate mail. 5
For his part, Northington presents no rebuttal evidence from which
a jury could reasonably find that defendants’ allegedly retaliatory motives were
the “but for” cause of their actions. Because Northington’s litigation efforts
4
(...continued)
Commissioner , 104 F.3d 1229, 1232 (10th Cir. 1997) (noting that “[g]enerally, an
appellate court will not consider an issue raised for the first time on appeal”).
5
Defendants do not attempt to justify the incident in which Blassingame
punched Northington on the arm. This action, however, is not sufficient to
support a civil rights claim. See Ingraham v. Wright , 430 U.S. 651, 674 (1977)
(“There is, of course, a de minimis level of imposition with which the
Constitution is not concerned.”).
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ranged over such a lengthy period, timing alone does not supply an inference of retaliation.
Finally, we have analyzed Northington’s allegations without consideration
of his retaliation theory. After a review of the record, we conclude that none of
Northington’s claims establishes a stand-alone constitutional violation. To
illustrate, Northington does not show that his transfer to a prison facility with the
capability of treating mental patients stigmatized him, subjected him to unwanted
treatment, or affected his sentence. Cf. Vitek v. Jones , 445 U.S. 480, 493-97
(1980) (holding that involuntary transfer to state mental hospital, in order to
subject prisoner to unwanted psychiatric treatment, triggered due process rights).
Northington questions only the timing of the transfer. The alleged punching from
defendant Blassingame, kicking from defendant Samu, and attempts to turn the
other inmates against him were not sufficiently serious to amount to cruel and
unusual punishment. See Farmer v. Brennan , 511 U.S. 825, 834 (1994)
(requiring, for Eighth Amendment claim, allegations that defendants acted with
deliberate indifference to a substantial risk of serious harm). Similarly, the
claims of unjustified strip searches, cell searches, and urine testing are not backed
with any showing that these invasions of privacy were unreasonable. See Bell v.
Wolfish , 441 U.S. 520, 559 (1979) (analyzing such claims with a consideration of
the scope of the intrusion, the reasonableness of a search, the manner in which it
is conducted, the justification for initiating it). Regarding the opening of his
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legal mail and temporary deprivation of his legal materials, there is no evidence
that these actions caused actual injury or “hindered [his] efforts to pursue a legal
claim.” Lewis v. Casey , 518 U.S. 343, 351 (1996). Standing alone, or taken
together as evidence of a conspiracy, Northington’s allegations do not
demonstrate a violation of his constitutional rights.
CONCLUSION
For the reasons stated above, the district court judgment is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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