February 9, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2194
RONALD L'HEUREUX,
Plaintiff, Appellant,
v.
LEO ASHTON, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Selya, Cyr and Lynch,
Circuit Judges.
Ronald L'Heureux on brief pro se.
Per Curiam. Appellant Ronald L'Heureux, an inmate
at the Adult Correctional Institution in Rhode Island, filed
a 42 U.S.C. 1983 action in Rhode Island's federal district
court, along with a motion to proceed in forma pauperis. The
complaint, besides naming the parties and citing the
jurisdictional bases of the action, contains only conclusory
references to the nature of appellant's claims. It
essentially alleges that (1) defendants (various correctional
officials) manufactured disciplinary proceedings against
appellant, (2) appellant spent 120 days in lock-up, (3)
appellant was denied reclassification, and (4) at least some
of these actions were taken for the purpose of discrimination
and retaliation.
The district court denied the request to proceed in
forma pauperis, stating on the back of the application that
"the allegations are insufficient to set forth a federal
cause of action." The next day, judgment was entered for the
defendants. Thus, the only reason given for dismissing the
complaint is the above-quoted language. We construe this as
a dismissal under 28 U.S.C. 1915(d). Appellant then filed
a motion for relief from judgment and to amend the complaint,
and a motion to reconsider the denial of in forma pauperis
status. The amended complaint added allegations concerning
the events upon which appellant based the action. The
district court denied these motions. This appeal ensued and
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appellant now requests permission to proceed in forma
pauperis on appeal.
Despite its brevity, the complaint should not have
been dismissed under 1915(d) without first giving appellant
notice of the deficiency and an opportunity to amend. See
Neitzke v. Williams, 490 U.S. 319, 329-30 (1989) (emphasizing
the importance of providing opportunities for responsive
pleadings to indigent litigants commensurate to the
opportunities accorded similarly situated paying litigants);
Street v. Fair, 918 F.2d 269, 273 (1st Cir. 1990) (per
curiam) (where the complaint's deficiency conceivably could
be cured by amendment, an indigent plaintiff must be given a
chance to supplement his or her allegations before any
dismissal on the merits). Particularly in view of the
allegations in the amended complaint, we cannot say that
appellant will be unable to state a cognizable claim.
In the amended complaint, appellant specifically
alleges that prison officials retaliated against him for
acting as a jail-house lawyer. This court and others have
recognized such claims. See, e.g., McDonald v. Hall, 610
F.2d 16, 18 (1st Cir. 1979) (inmate who asserted that as a
result of his activities as a jail-house lawyer on behalf of
himself and others, he was transferred to another prison
stated a claim even though the allegations were conclusory);
Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993)
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(government official may not retaliate by the use of
segregation against an inmate who engages in the
constitutionally protected conduct of assisting others as a
jail-house lawyer); Rizzo v. Dawson, 778 F.2d 527, 531-32
(9th Cir. 1985) (the assertion that an inmate's transfer was
in retaliation for his work as a jail-house lawyer stated a
claim for violation of the First Amendment where the
retaliatory act did not advance legitimate institutional
goals). Although the chronology still is vague so that it is
not clear whether appellant's activities triggered the
disciplinary proceedings, such an omission goes to the
failure to state a claim, not frivolousness. See Leonardo v.
Moran, 611 F.2d 397, 398 (1st Cir. 1979) (plaintiff failed to
state a 1983 claim for retaliation based on the conclusory
allegation that due to earlier filed grievances in the United
States district court, he was transferred to maximum security
and denied access to the courts; plaintiff failed to show
that "but for" the grievances, he would not have been
transferred). Appellant's allegations that he was
transferred to segregation for the possession of legal mail
and for his activities as a jail-house lawyer sufficiently
implicate the First Amendment and overcome the
characterization of the complaint as frivolous.
We therefore grant appellant's motion to proceed in
forma pauperis on appeal, summarily vacate the judgment of
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the district court, and remand for further proceedings. See
Local Rule 27.1. The discussion herein alerts appellant to
the elements of a viable retaliation claim. Appellant may
not depend merely on vague and general allegations. See
Gooley v. Mobil Oil Corp., 851 F.2d 513, 514-15 (1st Cir.
1988).
Vacated and remanded.
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