James Orebaugh v. Paul Caspari Walter Dickerman Donna Kay Brown Janet Schneider Mary Francis Mary Brundage Ralph Caprano Barry Dolan Dick Moore

HEANEY, Senior Circuit Judge,

concurring in part and dissenting in part.

Although I agree that the destruction of Orebaugh’s property and the disciplinary charges brought against him did not deprive Orebaugh of due process, I dissent from the dismissal of Orebaugh’s retaliation claim. The majority’s holding on this claim establishes a rule that will immunize prison officials from retaliation suits whenever some evidence in the record supports the imposition of a disciplinary charge, no matter how retaliatory the motive behind the charge may be. Neither our prior cases nor the meager record before us supports the establishment of such a rule.

In Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.1989), we held that the filing of a disciplinary charge against an inmate, although otherwise not actionable under section 1983, is actionable if made in retaliation for filing a prison grievance. The majority asserts that the alleged falsity of *529the challenged disciplinary charges was “crucial” to our holding in Sprouse. Neither the language of the holding nor the procedural posture of Sprouse, however, supports this assertion. Sprouse appealed a summary judgment against him on his retaliation claim, and the truth or falsity of the disciplinary charges against him had not yet been determined. The fact crucial to our reversal and remand was that Sprouse alleged that the disciplinary charges were brought against him in an attempt to obstruct his constitutionally guaranteed right to seek redress of his grievances. See 870 F.2d at 452.

We have previously noted that “an act in retaliation for the exercise of a constitutionally protected right is actionable ..., even if the act when taken for a different reason, would have been proper.” Craft v. Wipf, 836 F.2d 412, 419 (8th Cir.1987) (quoting Buise v. Hudkins, 584 F.2d 223, 229 (7th Cir.), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979)). Moreover, “[njeither the state’s authority to take the challenged action nor the reasonableness nor propriety of the action is at issue in a retaliation claim.” Id.

To state a cause of action for retaliation under section 1983, Orebaugh need allege only that he exercised his right to petition for redress of grievances and that his exercise of this right motivated prison officials to bring disciplinary charges against him. See Murphy v. Missouri Dep’t of Correction, 769 F.2d 502, 503 (8th Cir.1985); McDonald v. Hall, 610 F.2d 16, 18 (1st Cir.1979). Orebaugh has alleged these facts in his pro se complaint.

An action may not be dismissed as frivolous under 28 U.S.C. § 1915(d) unless “it is beyond doubt that the petitioner can prove no set of facts in support of his claim which would entitle him to relief.” Murphy v. Missouri Dep’t of Correction, 769 F.2d at 503 (citing Horsey v. Asher, 741 F.2d 209, 211 (8th Cir.1984)). To prevail on his retaliation claim, Orebaugh has the con-eededly heavy burden of showing that the prison officials who disciplined him had an impermissible motive for doing so, and that but for this impermissible motive, the disciplinary charges would not have been brought. See id. at 503 n. 1; McDonald, 610 F.2d at 18-19; cf. Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 283-87, 97 S.Ct. 568, 574-76, 50 L.Ed.2d 471 (1977) (an untenured teacher who could have been discharged for any reason could prevail on his claim for reinstatement only if the defendant school board failed to show that it would have reached the same decision in the absence of the teacher’s exercise of a protected right). To survive dismissal under section 1915(d), however, Orebaugh need only set forth a chronology of events from which the prison officials’ retaliatory animus can be inferred. Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir.1987) (because direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of events from which retaliation can be inferred is sufficient to survive dismissal); Benson v. Cady, 761 F.2d 335, 342 (7th Cir.1985) (same).

Here, Orebaugh has alleged that within three weeks of his pursuing his grievance to the Citizens Advisory Committee, the officer whose conduct was the subject of Orebaugh’s grievance reported Orebaugh for violating his lay-in order. Less than a week later, Orebaugh was again disciplined for violating his room restriction. This chronology of events, in the context of a pro se complaint, raises a sufficient inference of impermissible motive “to call for the opportunity to offer supporting evidence.” Haines v. Kerner 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972).

Once Orebaugh has established a prima facie case of retaliation by showing that he exercised a protected right, that he subsequently was disciplined, and that the chronology and circumstances suggest a causal connection between the two events, prison officials are entitled to articulate legitimate reasons for the discipline, as they have done here. Unlike the majority, however, I do not believe that the legitimate reasons the prison officials have advanced are dis-positive of Orebaugh’s retaliation claim. Orebaugh deserves the opportunity to try to show that the reasons given for diseiplin-*530ing him were a pretext for the prison officials’ retaliatory animus. Cf. Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980) (if title VII defendant produced evidence of a nonretaliatory reason for plaintiffs discharge, plaintiff still could prevail by showing that the proffered justification was a pretext for retaliation), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981).

The majority cites no authority for its assertion that “no claim can be stated when the alleged retaliation arose from discipline imparted for acts that a prisoner was not entitled to perform,” because no court has heretofore articulated such a rule. Ore-baugh’s complaint thus raises an arguable question of law for which dismissal on the basis of frivolousness is not appropriate. See Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). In its zeal to stem the tide of prisoner litigation and in a misguided attempt to discourage the open flouting of prison rules, the majority passes on a claim the district court failed to address, denies Ore-baugh the equal access to the adversarial process that section 1915 seeks to afford indigent claimants, and deprives this court of the opportunity to review Orebaugh’s retaliation claim on an adequately developed record. In so doing, the majority immunizes from review any trivial disciplinary charge that prison officials can support with some evidence, allowing such officials to inhibit prisoners’ constitutional right of access to grievance procedures with impunity. Accordingly, I dissent.