Jack McLaurin v. Russ Cole

*409CONTIE, J., delivered the opinion of the court, in which BOGGS, J., joined. RYAN, J. (pp. 411-13), delivered a separate concurring opinion.

OPINION

CONTIE, Circuit Judge.

Plaintiff-appellant Jack McLaurin (“McLaurin”), a Michigan inmate, filed this 42 U.S.C. § 1983 action against four corrections officers. On May 10, 1993, the district court dismissed three of the four defendants. On August 31, 1995, the district court granted judgment as a matter of law to the remaining defendant, Russ Cole. McLaurin appeals the judgment in favor of Cole. We affirm.

I.

McLaurin is serving a life term in the custody of the Michigan Department of Corrections (“MDOC”) at the State Prison of Southern Michigan (“SPSM”) in Jackson, Michigan. On August 9,1991, SPSM officers ordered an emergency count of the inmates just as McLaurin was preparing to take a shower. Upset because of his inability to take a shower, McLaurin struck the fire extinguishing sprinkler in his cell with a shoe, causing his cell to flood. McLaurin was immediately moved to a “quiet cell” for two hours. Following his release from the “quiet cell,” McLaurin returned to his cell and allegedly discovered that his legal materials were covered with shampoo and butter. McLaurin later climbed on top of a basketball support in the recreation yard and refused to come down. He was eventually subdued and moved to a cell in SPSM’s administrative segregation unit. McLaurin subsequently filed a grievance against Cole for his role in the sprinkler incident.

While housed in the administrative segregation unit, McLaurin demanded his prayer rug and fez. When Cole refused McLaurin’s request (because prisoners in administrative segregation are not permitted to possess such items pursuant to MDOC policy), McLaurin purportedly beat his chest and cell window with his hands, kicked the door to his cell, and repeatedly threatened to Mil Cole. Cole subsequently issued McLaurin a “misconduct ticket” for his threatening behavior. McLaurin, however, asserts that Cole issued the “misconduct ticket” solely in retaliation for the grievance that McLaurin filed against Cole days earlier.

McLaurin subsequently filed this 42 U.S.C. § 1983 action seeking damages for “psychological distress, anxiety, mental anguish [and] physical anguish.” Complaint at 6. Specifically, McLaurin alleges that the “Defendants denied plaintiff access to the court, the right to practice his religion [and] medical treatment [as] assured by the First, Eighth and Fourteenth Amendments.” Complaint at 5.

On May 10, 1993, the district court dismissed McLaurin’s claims against William Mickelson, Ray Hay and Terry Bildner, but denied Russ Cole’s motion for summary judgment with respect to McLaurin’s claim of retaliation. McLaurin’s retaliation claim against Cole proceeded to trial.

After McLaurin rested his case, the district court granted Cole’s motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 because Cole’s conduct did not “shock the conscience” of the court:

Plaintiff is a prisoner at a Michigan correctional facility. According to the joint final pre-trial order, Plaintiff’s only remaining claim was that Defendant, a correctional officer who is assigned to the property room, issued Plaintiff a “groundless misconduct ticket in retaliation for Plaintiff’s filing a grievance against him.”
Plaintiff himself was called as the only witness in his case in chief. Plaintiff testified that defendant Cole had wrongfully issued him a misconduct ticket which cited Plaintiff for threatening Defendant’s life. Plaintiff further testified that after receiving the ticket he was denied a visit to a podiatrist’s office.
The court finds that Plaintiffs claim cannot be maintained under controlling law. Plaintiff offered no evidence whatsoever to establish that Defendant’s issuance of the misconduct ticket was an “egregious abuse of governmental power.” Accepting all of *410Plaintiffs testimony as trae and accurate, the court finds that Defendant’s actions do not rise to such a level as to “shock the conscience” of this court. Accordingly, Defendant is entitled to judgment as a matter of law.

District Court’s August 31, 1995 Order Granting Defendant’s Motion for Judgment as a Matter of Law at 1-3 (citations and footnote omitted).

On October 2,1995, McLaurin filed a timely notice of appeal challenging the district court’s dismissal of his retaliation claim against Cole.

II.

Standard, of Review

The applicable Federal Rule of Civil Procedure provides:

If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

Fed.R.CivJP. 50(a)(1). “We review a judgment as a matter of law de novo.” Snyder v. Ag Trucking, Inc., 57 F.3d 484, 490 (6th Cir.1995) (citation omitted).

McLaurin’s Retaliation Claim

McLaurin asserts that the district court should not have employed a “shocking to the conscience” standard:

This Court must view the allegations in the complaint in a light most favorable to plaintiff. When so viewed, the allegations demonstrate that plaintiffs complaint implicated an explicit constitutional guarantee — namely, the First Amendment right to freedom of speech. Given this, the Trial Court’s requirement that plaintiff make an additional showing that defendant’s misconduct was somehow “shocking to the conscience” was erroneous. Plaintiffs claim that defendant’s retaliatory conduct violated his First Amendment rights should have gone to the jury.

Appellant’s Brief at 3.

In response, Cole asserts that the district court properly dismissed McLaurin’s retaliation claim:

There was no prima facie proof that Plaintiff-Appellant was engaged in conduct which is protected by the Constitution, and that such protected conduct was a substantial or motivating factor behind Defendant-Appellee’s actions. Plaintiff-Appellant's failure to carry these twin burdens is fatal to his claim....
Moreover, Plaintiff-Appellant has also failed to demonstrate that issuance of the misconduct ticket was an egregious abuse of power which shocks the conscience.

Appellee’s Brief at v (citations omitted).

Though McLaurin argues that the facts alleged need not be shocking to the conscience because his claim is grounded on first amendment principles,1 this court has repeatedly demanded that retaliation claims arising from the exercise of First Amendment rights be shocking to the conscience. For example, in Cale v. Johnson, 861 F.2d 943 (6th Cir.1988), this court held:

[Ajppellees allegedly framed appellant in retaliation for exercising his first amendment right to register a complaint about the food.
[T]he question remains whether appellees’ alleged conduct constitutes an “egregious abuse of governmental power” within the meaning of Vinson[ v. Campbell County Fiscal Court, 820 F.2d 194 (6th Cir.1987)]. ... Thus, the evidence supports a claim that Wahl intentionally and maliciously framed Cale and filed disciplinary charges against him in retaliation for Cale’s exercise of his first amendment rights. This alleged conduct constitutes an *411egregious abuse of authority within the meaning of Vinson.

Id. at 950. See also Birdo v. Smith, 94 F.3d 644 (6th Cir.1996) (unpublished) (“[T]he gravamen of Birdo’s complaint is his assertion of retaliation.... If an analysis of the facts reveals that retaliation occurred, then Birdo’s substantive due process rights may have been violated, as such retaliation could be construed as shocking to the conscience.”); Williams v. Jabe, 52 F.3d 327 (6th Cir.1995) (unpublished) (“Government officials may not retaliate against persons who have participated in constitutionally protected conduct, nor interfere with a prisoner’s fundamental right of access to the courts. Williams has not shown that the defendants’ conduct constitutes an egregious abuse of governmental power or that such action otherwise shocks the conscience.”), cert. denied, — U.S.-, 116 S.Ct. 730, 133 L.Ed.2d 681 (1996); Riley v. Evans, 41 F.3d 1507 (6th Cir.1994) (unpublished) (“The defendant is also entitled to judgment as a matter of law to the extent Riley claimed that the defendant filed the misconduct charge to retaliate against Riley for filing grievances against the defendant. Riley’s allegation of retaliation does not demonstrate an egregious abuse of authority sufficient to defeat a motion for summary judgment.”); Taylor v. Brown, 9 F.3d 109 (6th Cir.1993) (unpublished) (“The defendants are entitled to judgment on Taylor’s claim that they filed false disciplinary charges against him in retaliation for Taylor having filed grievances regarding the mistreatment of prisoners_ Taylor’s allegations of retaliation do not demonstrate an egregious abuse of authority sufficient to defeat a motion for summary judgment.”).

Though MeLaurin asserts that Cole filed the major misconduct ticket in retaliation for MeLaurin’s grievance regarding the destruction of his legal materials and, perhaps, the deprivation of his religious materials 2 and a missed podiatrist appointment, the record reveals that MeLaurin threatened to kill Cole. In fact, MeLaurin purportedly pounded his fists against his chest and kicked a door during his outburst. Though inmates retain those rights that are not inconsistent with their status as prisoners or with the legitimate penological objectives of corrections officials, Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), “central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.” Id. at 823, 94 S.Ct. at 2804. In light of MeLaurin’s threatening behavior, it is not surprising that Cole issued the major misconduct ticket.

Because MeLaurin failed to prove that his filing of the grievance was a substantial or motivating factor behind Cole’s issuance of the misconduct ticket, and because Cole’s actions were not shocking to the conscience, the district court properly dismissed MeLau-rin’s retaliation claim against Cole.3

Accordingly, we AFFIRM.

. Specifically, McLaurin argues that his right to file grievances and threaten prison guards is protected by the first amendment.

. Specifically, his prayer rug and fez.

. Because the district court properly dismissed McLaurin’s action against Cole, we need not decide Cole's right to qualified immunity.