IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50786
Summary Calendar
PEDRO MUNIZ, JR.
Plaintiff-Appellant,
versus
CURTIS CHILDERS & JOE WARREN
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(A-95-CV-289)
April 23, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Pedro Muniz is a federal prisoner. He brought a Bivens action
against prison official Curtis Childers and his supervisor, Joe
Warren, alleging failure to protect and retaliation for exercise of
a constitutional right. The magistrate judge recommended granting
the defendant’s motion to dismiss.1 After Muniz filed objections,
*
Local rule 47.5 provides: “The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession.”
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1
The defendant’s motion was styled Motion to Dismiss or,
alternatively, Motion for Summary Judgment. The magistrate’s
the district court adopted the magistrate’s report in toto, and
Muniz appealed. We reverse in part, affirm in part, and remand.
Initially, we agree with the district court that Muniz must
assert in more than a conclusory fashion that the decision to
return Muniz from protective segregation to general population was
made with deliberate indifference to his safety. He did not do so.
Muniz could not remain in protective segregation forever on the
basis of a single threatening note with no indication as to the
substance or continuation of the threat. In addition, we agree
with the district court that Muniz’s retaliation claim against
Warren similarly fails. Muniz failed to offer more than a
conclusion regarding the necessary element that any action of
Warren constituted a retaliatory response to Muniz’s exercise of
his constitutional rights. Finally, we note that Muniz has not
appealed the dismissal of his claims for injunctive relief. On
these three matters, we AFFIRM the district court’s decision.
Regarding the dismissal of Muniz’s claim of retaliation
against Childers, we REVERSE. Liberally construed, Muniz’s
complaint and subsequent pleadings allege that in response to
Muniz’s threat to file an administrative grievance, Childers had
Muniz transferred from more desirable duties to food services. The
pleadings further allege that before Muniz was released from
protective segregation, Childers again retaliated against Muniz’s
report states that the recommendation is to “GRANT Defendant’s
Motion to Dismiss.” We will therefore construe the magistrate’s
disposition of this case as a dismissal under Fed. R. Civ. P.
12(b)(6) and review accordingly.
2
threat to file an administrative grievance or a lawsuit by
arranging for Muniz to go back to food services instead of to
UNICOR,2 where plaintiff had been assigned just before a
threatening note necessitated the protective custody. The
pleadings allege that in response to plaintiff’ threat to file a
civil lawsuit, Childers ran Muniz from the laundry room and had him
transferred from laundry to kitchen duty. Muniz’s filings allege
that Childers informed plaintiff on several occasions that he would
label Muniz a snitch among the inmates, that he owned Muniz. Muniz
also alleges that Childers made these comments while making
reference to Muniz’s previous complaints about Childers to
Childers’ superior.
We agree with the district court that anything occurring
before Muniz complained to Childers’ supervisor or threatened to
file an administrative grievance and a lawsuit cannot give rise to
a Bivens claim. At most, before these threats, Childers was
retaliating against plaintiff for plaintiff’s request to be
transferred to a more desirable job. Because plaintiff concedes
that he has no constitutional right to a particular job, the
retaliation does not violate the constitution.
Our disagreement with the district court concerns Muniz’s
theory that Childers had plaintiff transferred to less desirable
jobs in direct response to Muniz’s file an administrative grievance
2
We gather from the complaint that a prisoner can earn money
for work in UNICOR. Plaintiff alleges that he wanted this money to
pay for job training that he could receive upon placement in a
halfway house.
3
or a lawsuit. The district court dismissed these claims because
(1) the allegedly retaliatory conduct occurred before Muniz filed
suit, and (2) none of the claimed violations actually impeded
Plaintiff’s access to the courts or the grievance process. Neither
of these statements is an answer to Muniz’s claim. A deprivation
of the right of access to the courts occurs when a prison official
takes any act intending for that act to deter a prisoner from
filing a lawsuit or a grievance. See Gartrell v. Gaylor, 981 F.2d
254, 259 (5th Cir. 1993); Gibbs v. King, 779 F.2d 1040, 1046 (5th
Cir.), cert. denied, 476 U.S. 1117 (1986). Deterrence can occur
before the filing of suit, and a retaliatory or deterrent act need
not succeed in order to be unlawful. We also find that prisoners
had a clearly established right of access to the courts and to file
grievances before Childers’ alleged conduct, and thus that at least
at this stage of the litigation, Childers is not entitled to
qualified immunity. Id.
We therefore REVERSE the district courts Rule 12(b)(6)
dismissal of Muniz’s retaliation action against Childers and REMAND
for further proceedings.
4