United States Court of Appeals
Fifth Circuit
F I L E D
In the May 15, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 05-40578
Summary Calendar
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DAVID GENE MORRIS,
Plaintiff-Appellant,
VERSUS
CHRISTY POWELL, ET AL.,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 5:99-CV-263
______________________________
Before SMITH, GARZA, and PRADO, minimis retaliatory act to establish a con-
Circuit Judges. stitutional violation. Finding that the retalia-
tion alleged by Morris did not pass this bar, the
JERRY E. SMITH, Circuit Judge: court granted the defendants’ motion for
summary judgment, from which Morris ap-
Inmate David Morris sued prison officials peals. Because we agree with the district
under 42 U.S.C. § 1983 for alleged retaliation court’s choice of legal standards but disagree
against him for exercising his First Amendment in part with its application of the law to the
right to use the prison grievance system. The facts, we vacate and remand.
district court determined that prisoners bring-
ing such claims must allege more than a de
I. the claim.
On November 25, 1997, Morris submitted
grievances to prison authorities concerning the Morris contends that this court should not
way defendant Christy Powell ran the Telford adopt the de minimis standard. In the altern-
Unit’s commissary, where Morris was assigned ative, he argues that even if de minimis retal-
to work. On December 1 of the same year, iatory acts are deemed insufficient to support
Morris was moved from the commissary to the a § 1983 claim for retaliation, the retaliation he
kitchen. He worked in the kitchen’s pot room alleges was not de minimis.
on December 5 and was moved from the kitch-
en to the butcher shop on December 8. In II.
May 1998 he was transferred from the Telford We review a grant of summary judgment de
Unit to the Terrell Unit, where he presently novo, applying the same standard as does a
resides. district court. BellSouth Telecommunications,
Inc. v. Johnson Bros. Group, 106 F.3d 119,
Morris alleges that prison officials at the 122 (5th Cir.1997). Summary judgment is
Telford Unit assigned him to a more taxing job appropriate when the record demonstrates that
in the kitchen in retaliation for the exercise of there is no issue of material fact and that the
his constitutional right to file complaints moving party is entitled to judgment as a
against Powell. He also claims that his transfer matter of law. Martinez v. Bally’s La., Inc.,
to the allegedly less desirable Terrell Unit was 224 F.3d 474, 476 (5th Cir. 2001).
an act of retaliation.
A prison official may not retaliate against or
The defendants’ first motion for summary harass an inmate for complaining through
judgment was denied on March 28, 2003. The proper channels about a guard’s misconduct.
district court found that disputed issues of ma- Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.
terial fact existed as to whether the transfer of 1995). “To prevail on a claim of retaliation, a
Morris to different work assignments, and prisoner must establish (1) a specific constitu-
eventually to another prison, was a retaliatory tional right, (2) the defendant’s intent to re-
response to his complaints against Powell. taliate against the prisoner for his or her exer-
The defendants’ motion for reconsideration cise of that right, (3) a retaliatory adverse act,
was denied, and an appeal to this court fol- and (4) causation.” McDonald v. Steward,
lowed. We remanded for consideration of 132 F.3d 225, 231 (5th Cir. 1998).
whether an inmate’s retaliation claim must
allege more than a de minimis adverse act. We must interpret the third prong of this
Morris v. Powell, 114 Fed. Appx. 629 (5th test. The state argues that the district court
Cir. 2004). correctly determined that acts of retaliation so
inconsequential as to be considered de minimis
On remand, the district court held, as a do not satisfy the “retaliatory adverse act”
matter of first impression in this circuit, that an requirement. Morris argues that any act of re-
inmate must allege more than a de minimis taliation, however minor, is an actionable vio-
retaliatory act to proceed with a claim for re- lation of an inmate’s constitutional rights. He
taliation. The court further determined, with- cites Lewis v. Woods, 848 F.2d 649, 651 (5th
out discussion, that the retaliation alleged by Cir. 1988), for the proposition that a violation
Morris was de minimis, so the court dismissed of constitutional rights is never de minimis.
2
The question, however, is not whether the vio- When confronted with more serious alle-
lation of Morris’s constitutional rights was de gations of retaliation, however, we have not
minimis, but whether any violation occurred at hesitated to recognize the legitimacy of an in-
all. To establish a constitutional violation, an mate’s claim. In Hart v. Hairston, 343 F.3d
inmate must show that he suffered a qualifying 762, 764 (5th Cir. 2003), we reversed sum-
adverse retaliatory act. If the retaliation al- mary judgment dismissing a retaliation claim
leged by Morris does not pass this bar, he has where the alleged adverse act was twenty-
suffered no constitutional injury. seven days of commissary and cell restrictions.
Although we declined to adopt such a test, we
Whether an allegation of de minimis retal- noted that “the penalties imposed on Hart do
iatory acts can support a retaliation claim is an not qualify as ‘de minimis’ under various
issue of first impression in this court. The ap- standards cited by other circuits.”
proach we have taken in deciding past inmate
retaliation claims is, however, instructive. We Likewise, in Parker v. Carpenter, 978 F.2d
have never upheld a retaliation claim that al- 190, 192-93 (5th Cir. 1992), we held that re-
leges only inconsequential, or de minimis, re- taliation in the form of transferring the inmate
taliatory acts by prison officials. Rather, our to a more violent section of the prison was
precedent is consistent with the proposition sufficient to support a retaliation claim. In
that an inmate must allege more than de min- Jackson v. Cain, 864 F.2d 1235, 1248 (5th
imis retaliation to proceed with such a claim. Cir. 1989), we overturned summary judgment
where an inmate alleged that he had been
In Jones v. Greninger, 188 F.3d 322, 325- transferred to a less desirable job within the
26 (5th Cir. 1999), we affirmed the dismissal prison in retaliation for filing grievances. The
of a claim alleging that the inmate had been re- inmate, who had worked in a light labor job,
stricted to five hours a week in the law library was moved for forty-seven days to a job that
in retaliation for filing grievances. Although subjected him to extreme hardship and serious
retaliatory intent was properly alleged, the health risks.2
inmate’s claim failed because the retaliatory
adverse acts did not rise to the level of a
constitutional violation. Similarly, in Gibbs v. 1
(...continued)
King, 779 F.2d 1040, 1046 (5th Cir. 1986), iatory] act to establish constitutional harm.” Pierce
we upheld a dismissal, writing that “a single v. Tex. Dep’t of Crim. Justice, Institutional Div.,
incident, involving a minor sanction, is insuf- 37 F.3d 1146, 1149 n.1 (5th Cir. 1994). Although
ficient to prove [retaliatory] harassment.” the law on inmates’ retaliation claims follows a
Thus, without explicitly applying a de minimis different line of cases, we note that to uphold
test, this court has refused to recognize retalia- inmate retaliation claims in cases where only trivial
tion claims based only on allegations of insig- retaliation is alleged, as Morris urges, would
nificant retaliatory acts.1 effectively elevate the constitutional rights of
inmates over those of government employees.
2
The Jackson court described the job to which
1
In the context of claims by state employees the inmate in that case was moved in retaliation for
alleging retaliation for the exercise of First Amend- writing grievance letters:
ment rights, we require “more than a trivial [retal-
(continued...) (continued...)
3
As we acknowledged in Hart, other circuits D.C. Circuit’s Crawford-El standard “is the
have provided persuasive guidance on the appropriate standard by which to determine
quantum of retaliation necessary to support an what type of action is sufficiently adverse to be
inmate’s § 1983 claim.3 The District of Col- cognizable in a retaliation claim under §
umbia Circuit has held that an inmate’s retali- 1983.” Thaddeus-X v. Blatter, 175 F.3d 378,
ation claim must allege adverse acts that 397 (6th Cir. 1999).
“would chill or silence a person of ordinary
firmness from future First Amendment activi- In adopting this standard, the Sixth and
ties.” Crawford-El v. Britton, 93 F.3d 813, D.C. Circuits based their reasoning on the
826 (D.C. Cir. 1996) (en banc), vacated on Seventh Circuit’s rejection, in the employment
other grounds, 523 U.S. 574 (1998). That retaliation context, of de minimis retaliation
reasoning was left undisturbed when the Su- claims: “It would trivialize the First Amend-
preme Court vacated the decision. The Court ment to hold that harassment for exercising the
wrote: “The reason why such retaliation (for right of free speech was always actionable no
the exercise of First Amendment rights) of- matter how unlikely to deter a person of ordi-
fends the Constitution is that it threatens to nary firmness from that exercise . . . .” Bart v.
inhibit exercise of the protected right.” Telford, 677 F.2d 622, 625 (7th Cir. 1982).
Crawford-El v. Britton, 523 U.S. 574, 588 The Second Circuit has employed a similar de
n.10 (1998). See also Hartman v. Moore, minimis standard, asking whether the retalia-
2006 WL 1082843, at *4 (U.S. Apr. 26, tion alleged by an inmate rose to the level of
2006). The Sixth Circuit later held that the that which would deter the exercise of a con-
stitutional right. See Davidson v. Chestnut,
193 F.3d 144, 149-50 (2d Cir. 1999).
2
(...continued)
He was required to work in a barn shoveling The de minimis standard enunciated by our
unshucked corn that was over a year old and sister circuits is consistent with this court’s
contaminated with rats’ nests, insects, and clods precedent. The standard achieves the proper
of white, sandy dust. He had to work unmasked balance between the need to recognize valid
while covered with corn dust in addition to
retaliation claims and the danger of “federal
pushing an iron wagon full of corn approxi-
courts embroil[ing] themselves in every disci-
mately 80 feet ten times a day throughout the
47 day period. His nose bled, his hair fell out, plinary act that occurs in state penal institu-
and his face broke out in sores. He was also tions.” Woods, 60 F.3d at 1166. The purpose
required to mow grass for two hours a day with of allowing inmate retaliation claims under
a sub-standard push lawn mower. He claims he § 1983 is to ensure that prisoners are not un-
was the only member of the crew required to do dulydiscouraged from exercising constitution-
the mowing. After roughly a month of this al rights. See Crawford-El, 523 U.S. at 588
treatment Jackson claims Terry Thompson told n.10. Some acts, though maybe motivated by
him on June 20th that if he would stop writing retaliatory intent, are so de minimis that they
letters to Col. Donald McNeil they would would not deter the ordinary person from fur-
rescind this punishment. ther exercise of his rights. Such acts do not
rise to the level of constitutional violations and
Jackson, 864 F.2d at 1239. cannot form the basis of a §1983 claim.
3
See Hart, 343 F.3d at 764 (citing Thaddeus-X
v. Blatter, 175 F.3d 378, 396 (6th Cir.1999)). We must explain, however, that this thresh-
4
old is intended to weed out only inconsequen- fication was switched from the commissary to
tial actions and is not a means to excuse more the kitchen for about six weeks, he was actu-
serious retaliatory acts by prison officials. Re- ally made to work in the kitchen for only a
taliation against a prisoner is actionable only if week at most. He spent just one day in the
it is capable of deterring a person of ordinary “pot room,” which is evidently an unpleasant
firmness from further exercising his con- work station. He was then moved to the
stitutional rights. butcher shop, and he raises no complaints
about that job.
III.
With this standard in mind, we turn to the Nothing in this sequence of events could
specific retaliation alleged by Morris to deter- support an inference that Morris’s job transfers
mine whether the actions of the Telford Unit would have deterred him from the exercise of
officials would have deterred a person of or- the right to file grievances. The transfers may
dinary firmness from exercising his First have had a retaliatory motive, and Morris may
Amendment right to file grievances against have experienced discomfort for a few days as
prison officials. Because this is a review of a result, but there is no evidence that the job
summary judgment against Morris, we are transfers were more than de minimis. The
bound to view the pleadings and evidence in standard adopted herein is designed to dis-
the light most favorable to Morris. See Smith courage precisely such claims of inconsequen-
v. Xerox Corp., 866 F.2d 135, 137 (5th Cir. tial retaliation. The district court did not err in
1989). granting summary judgment on Morris’s job
transfer claims.
Morris alleges two distinct instances of re-
taliation. First, he claims he was moved to a In its order granting summary judgment, the
less desirable job within the prison. Second, district court did not specifically mention Mor-
he avers that his transfer to the Terrell Unit ris’s second claim, that he was transferred to
was retaliation. According to Morris, it is an inferior prison in retaliation for filing griev-
common knowledge that the Terrell Unit is a ances. Because the court granted summary
harsher environment for prisoners than is the judgment based on its adoption of the de
Telford Unit. When the district court first minimis standard, we must assume it thought
ruled on summary judgment motions, it denied the prison transfer claim was de minimis.
summary judgment because issues of material
fact existed regarding both of Morris’s claims. We disagree. Transfer to a more dangerous
After this court asked the district court to prison is a much more serious retaliatory act
consider the de minimis issue, that court than what has been considered de minimis in
granted summary judgment when it found that other circuits. We have held that transfer to a
neither of Morris’s retaliation claims, as al- more dangerous section of the same prison is
leged, meets the de minimis threshold. a sufficiently adverse retaliatory act to support
a § 1983 claim. See Parker v. Carpenter, 978
On the job-transfer claim, the district court F.2d 190, 192-93 (5th Cir. 1992). There is no
correctly determined that Morris’s allegations doubt that transfer to a more dangerous prison
do not rise to the level of actionable retalia- as a penalty for the exercise of constitutional
tion. The summary judgment evidence indi- rights has the potential to deter the inmate
cates that although Morris’s official job classi- from the future exercise of those rights. Ac-
5
cordingly, Morris’s prison transfer claim meets
the de minimis threshold, and summary judg-
ment should not have been granted on that
claim.
As the district court noted in its pre-remand
order denying summary judgment, though
further evidence may indicate that Morris’s
prison transfer claim is meritless, he has al-
leged events from which retaliation may plaus-
ibly be inferred, and his claim is facially valid.
We find no reason to disagree with this assess-
ment. All that has changed since the district
court denied summary judgment is the adop-
tion of the de minimis standard. Because
Morris’s allegation meets that standard, we
remand for further consideration of the retalia-
tory prison transfer claim.
IV.
The defendants assert qualified immunity.
The initial two-part inquiry facing a court de-
ciding a qualified immunity claim is (1) wheth-
er the violation of a constitutional right been
alleged and, if so, (2) whether the right was
clearly established. Saucier v. Katz, 533 U.S.
194, 210 (2001). These defendants are enti-
tled to qualified immunity on the job transfer
claim because there is no cognizable constitu-
tional violation. On the prison transfer claim,
however, the violation of a constitutional right
has been properly alleged. Any further inquiry
into the qualified immunity issue is not prop-
erly before this court. If the defendants wish
to establish qualified immunity as to the prison
transfer claim, they must ask the district court
for a ruling.
The summary judgment is AFFIRMED in
part, VACATED in part, and REMANDED
for further proceedings as appropriate.
6