Jerome McFadden v. S.B. Lewis

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7982

JEROME MCFADDEN,

Plaintiff – Appellant,

S.B. LEWIS, Associate Warden; FRANK MURSIER, Major McCI; L.
CARTELEDGE, Warden at McCI McCormick Correctional
Institution,

Defendants - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Mary Geiger Lewis, District
Judge. (0:12-cv-01627-MGL)

Submitted: March 20, 2013 Decided: April 2, 2013

Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Jerome McFadden, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Jerome McFadden appeals the district court’s order

dismissing his 42 U.S.C. § 1983 (2006) complaint as frivolous

under 28 U.S.C. § 1915(e)(2)(B) (2006). McFadden’s complaint

alleged that prison officials had retaliated against him for his

filing of a prior § 1983 action by transferring him to a

facility at which he feared for his safety, terminating him from

his prison job, placing him in administrative segregation,

verbally and sexually harassing him, and filing false

disciplinary charges against him. Although the district court

assessed each individual action of which McFadden complained, it

did not evaluate his assertion that the individual acts were

motivated by an intent to retaliate against him because he had

filed a previous lawsuit.

Retaliation against an inmate for the exercise of his

right to access the courts states a cognizable claim.

Hudspeth v. Figgins, 584 F.2d 1345, 1347-48 (4th Cir. 1978).

Such retaliation by an official is actionable even if the act

would have been proper if taken for different reasons. American

Civ. Liberties Union v. Wicomico Cnty., 999 F.2d 780, 785 (4th

Cir. 1993). In order to state a retaliation claim, the

“plaintiff must allege either that the retaliatory act was taken

in response to the exercise of a constitutionally protected

right or that the act itself violated such a right.” Adams v.

2
Rice, 40 F.3d 72, 75 (4th Cir. 1994). The plaintiff must allege

sufficient facts to warrant concern that the alleged retaliation

might have a chilling effect on the exercise of the right to

access the courts and show that he suffered more than de minimis

inconvenience. Wicomico, 999 F.2d at 785-86 & n.6. The

prisoner need not succumb entirely or even partially to the

threat; it is sufficient that the retaliation was intended to

limit the prisoner’s right of access to the court “and was

reasonably calculated to have that effect.” Hudspeth, 584 F.2d

at 1348. However, the plaintiff must allege specific facts

supporting his claim of retaliation; bare assertions of

retaliation do not establish a claim of constitutional

dimension. Adams, 40 F.3d at 74-75.

Here, because the district court failed to consider

McFadden’s claim that each of the specific actions he complained

of were taken in retaliation for his filing of a previous § 1983

complaint, we vacate the district court’s order and remand for

consideration of this claim in the first instance. See Adams,

40 F.3d at 75. In so doing, we express no opinion as to the

merits of McFadden’s claims. We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

VACATED AND REMANDED