United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS September 9, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 02-50902 Summary Calendar
ROBERT G. HART,
Plaintiff-Appellant,
versus
KENNETH HAIRSTON; KARL THOMAS, Major; JIMMY D. CRAIG,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court for the Western District of Texas
Before WIENER, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Robert G. Hart, Texas prisoner # 769108,
appeals from the district court’s order granting the defendants’
motion for summary judgment and dismissing his 42 U.S.C. § 1983
civil rights complaint for failure to state a claim on which relief
can be granted. We granted Hart leave to proceed in forma
pauperis (“IFP”) after the district court had certified that his
appeal was not taken in good faith.
Hart asserted that the defendants retaliated against him for
exercising his First Amendment right to file a grievance and to
complain to a prison administrator about the alleged misconduct of
defendant Hairston. He alleged that, only days after making such complaints, Hairston filed a disciplinary report against Hart
charging him with “knowingly making false statements for the
purpose of harming another person.” Hart maintained that defendant
Thomas accepted the disciplinary charge, that he was convicted in
a disciplinary proceeding over which defendant Craig presided, and
that he was punished with 27 days of commissary and cell
restrictions.
Section 1915(e)(2)(B)(ii), Title 28, permits a district court
to dismiss a prisoner’s IFP complaint “at any time if the court
determines that —— (B) the action or appeal —— . . . (ii) fails to
state a claim on which relief may be granted[.]” We review a 28
U.S.C. § 1915(e)(2)(B)(ii) dismissal de novo, applying the standard
used for FED. R. CIV. P. 12(b)(6). Black v. Warren, 134 F.3d 732,
734 (5th Cir. 1998); see Harper v. Showers, 174 F.3d 716, 718 n.3
(5th Cir. 1999). “To test whether the district court’s dismissal
under § 1915[(e)(2)(B)(ii)] was proper, this Court must assume that
all of the plaintiff’s factual allegations are true.” Bradley
v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). “The district
court’s dismissal may be upheld, ‘only if it appears that no relief
could be granted under any set of facts that could be proven
consistent with the allegations.’” Id. (citation omitted).
To the extent that the district court’s order was based on the
evidentiary submissions of the parties, we review de novo that
court’s order granting a party’s summary-judgment motion.
Whittaker v. BellSouth Telecomm., Inc., 206 F.3d 532, 534 (5th Cir.
2000). Summary judgment is proper if the pleadings, depositions,
2 answers to interrogatories, and admissions on file, together with
any affidavits filed in support of the motion, show that there is
no genuine issue as to any material fact, and that the moving party
is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
The moving party bears the burden of showing the district court
that there is an absence of evidence to support the nonmoving
party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
If the moving party meets the initial burden of showing that there
is no genuine issue, the burden shifts to the nonmovant to set
forth specific facts showing the existence of a genuine issue
for trial. Rule 56(e).
“To state a valid claim for retaliation under section 1983, a
prisoner must allege (1) a specific constitutional right, (2) the
defendant’s intent to retaliate against the prisoner for his or her
exercise of that right, (3) a retaliatory adverse act, and (4)
causation.” Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir.
1999). “The law of this circuit is clearly established . . . that
a prison official may not retaliate against . . . an inmate . . .
for complaining to a supervisor about a guard’s misconduct.” Woods
v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995); Jackson v. Cain, 864
F.2d 1235, 1248 (5th Cir. 1989). Hart established a “chronology of
events” showing retaliatory motive on the part of defendant
Hairston, as the disciplinary charge filed by Hairston was
accompanied by Hart’s “letter of resolution” in which he accused
Hairston of misconduct and lying. See Woods, 60 F.3d at 1166. The
27 days of commissary and cell restrictions that directly resulted
3 constituted an “adverse act,”1 and causation was shown by the
direct link between Hart’s complaints and the punishment he
received. See McDonald v. Steward, 132 F.3d 225, 231 (5th Cir.
1998).
The defendants argue that the “adverse act” suffered by
Hart was de minimis. Although we have not specifically addressed
the quantum of injury necessary to constitute an “adverse act” for
purposes of a retaliation claim, the penalties imposed on Hart do
not qualify as “de minimis” under various standards cited by other
circuits. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th
Cir. 1999) (“action comparable to transfer to administrative
segregation would certainly be adverse”).
The defendants also argue that Hart failed to produce
“competent summary judgment evidence” showing that his accusations
against Hairston were not in fact false, which allegedly negated
any “but for” causation with respect to Hairston’s filing of the
disciplinary report. It is true that a disciplinary report, like
that filed against Hairston, may be “probative and potent summary
judgment evidence” to prove the allegations contained in it.2
1 The district court concluded that Hart had produced “no competent summary judgment evidence” to show that he actually suffered these sanctions. This was error. Hart submitted a declaration, sworn to “under penalty of perjury” in which he asserted that he in fact served the 27 days of commissary and cell restrictions. Under 28 U.S.C. § 1746, this is competent sworn testimony for summary-judgment purposes. See Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988).
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS September 9, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 02-50902 Summary Calendar
ROBERT G. HART,
Plaintiff-Appellant,
versus
KENNETH HAIRSTON; KARL THOMAS, Major; JIMMY D. CRAIG,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court for the Western District of Texas
Before WIENER, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Robert G. Hart, Texas prisoner # 769108,
appeals from the district court’s order granting the defendants’
motion for summary judgment and dismissing his 42 U.S.C. § 1983
civil rights complaint for failure to state a claim on which relief
can be granted. We granted Hart leave to proceed in forma
pauperis (“IFP”) after the district court had certified that his
appeal was not taken in good faith.
Hart asserted that the defendants retaliated against him for
exercising his First Amendment right to file a grievance and to
complain to a prison administrator about the alleged misconduct of
defendant Hairston. He alleged that, only days after making such complaints, Hairston filed a disciplinary report against Hart
charging him with “knowingly making false statements for the
purpose of harming another person.” Hart maintained that defendant
Thomas accepted the disciplinary charge, that he was convicted in
a disciplinary proceeding over which defendant Craig presided, and
that he was punished with 27 days of commissary and cell
restrictions.
Section 1915(e)(2)(B)(ii), Title 28, permits a district court
to dismiss a prisoner’s IFP complaint “at any time if the court
determines that —— (B) the action or appeal —— . . . (ii) fails to
state a claim on which relief may be granted[.]” We review a 28
U.S.C. § 1915(e)(2)(B)(ii) dismissal de novo, applying the standard
used for FED. R. CIV. P. 12(b)(6). Black v. Warren, 134 F.3d 732,
734 (5th Cir. 1998); see Harper v. Showers, 174 F.3d 716, 718 n.3
(5th Cir. 1999). “To test whether the district court’s dismissal
under § 1915[(e)(2)(B)(ii)] was proper, this Court must assume that
all of the plaintiff’s factual allegations are true.” Bradley
v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). “The district
court’s dismissal may be upheld, ‘only if it appears that no relief
could be granted under any set of facts that could be proven
consistent with the allegations.’” Id. (citation omitted).
To the extent that the district court’s order was based on the
evidentiary submissions of the parties, we review de novo that
court’s order granting a party’s summary-judgment motion.
Whittaker v. BellSouth Telecomm., Inc., 206 F.3d 532, 534 (5th Cir.
2000). Summary judgment is proper if the pleadings, depositions,
2 answers to interrogatories, and admissions on file, together with
any affidavits filed in support of the motion, show that there is
no genuine issue as to any material fact, and that the moving party
is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
The moving party bears the burden of showing the district court
that there is an absence of evidence to support the nonmoving
party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
If the moving party meets the initial burden of showing that there
is no genuine issue, the burden shifts to the nonmovant to set
forth specific facts showing the existence of a genuine issue
for trial. Rule 56(e).
“To state a valid claim for retaliation under section 1983, a
prisoner must allege (1) a specific constitutional right, (2) the
defendant’s intent to retaliate against the prisoner for his or her
exercise of that right, (3) a retaliatory adverse act, and (4)
causation.” Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir.
1999). “The law of this circuit is clearly established . . . that
a prison official may not retaliate against . . . an inmate . . .
for complaining to a supervisor about a guard’s misconduct.” Woods
v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995); Jackson v. Cain, 864
F.2d 1235, 1248 (5th Cir. 1989). Hart established a “chronology of
events” showing retaliatory motive on the part of defendant
Hairston, as the disciplinary charge filed by Hairston was
accompanied by Hart’s “letter of resolution” in which he accused
Hairston of misconduct and lying. See Woods, 60 F.3d at 1166. The
27 days of commissary and cell restrictions that directly resulted
3 constituted an “adverse act,”1 and causation was shown by the
direct link between Hart’s complaints and the punishment he
received. See McDonald v. Steward, 132 F.3d 225, 231 (5th Cir.
1998).
The defendants argue that the “adverse act” suffered by
Hart was de minimis. Although we have not specifically addressed
the quantum of injury necessary to constitute an “adverse act” for
purposes of a retaliation claim, the penalties imposed on Hart do
not qualify as “de minimis” under various standards cited by other
circuits. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th
Cir. 1999) (“action comparable to transfer to administrative
segregation would certainly be adverse”).
The defendants also argue that Hart failed to produce
“competent summary judgment evidence” showing that his accusations
against Hairston were not in fact false, which allegedly negated
any “but for” causation with respect to Hairston’s filing of the
disciplinary report. It is true that a disciplinary report, like
that filed against Hairston, may be “probative and potent summary
judgment evidence” to prove the allegations contained in it.2
1 The district court concluded that Hart had produced “no competent summary judgment evidence” to show that he actually suffered these sanctions. This was error. Hart submitted a declaration, sworn to “under penalty of perjury” in which he asserted that he in fact served the 27 days of commissary and cell restrictions. Under 28 U.S.C. § 1746, this is competent sworn testimony for summary-judgment purposes. See Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988). 2 As neither Hart nor the appellees have addressed whether the subsequent overturning of the disciplinary conviction in this case rendered the disciplinary report ineffectual as summary- judgment evidence, we do not address this legal issue at this time.
4 See Woods, 60 F.3d at 1166. Hart, however, attached to his
original complaint a signed declaration under penalty of perjury
that “the foregoing is true and correct.” On summary judgment,
factual allegations set forth in a verified complaint may be
treated the same as when they are contained in an affidavit. See
Huckabay v. Moore, 142 F.3d 233, 240 n.6 (5th Cir. 1998); King v.
Dogan, 31 F.3d 344, 346 (5th Cir. 1994); 28 U.S.C. § 1746. In his
verified complaint, Hart explicitly alleged that, on February 14,
2001, Hairston told him to lie to inspectors about the sanitization
of pots and pans at the prison. It was this same allegation, as
set forth in a February 15, 2001, “letter of resolution” to the
prison’s Food Service Director, that resulted in the filing of a
disciplinary report against Hart. The verified allegation in
Hart’s complaint was competent summary-judgment evidence to counter
the disciplinary report, and it created a genuine issue of material
fact with respect to the issue of causation.
As Hart stated a cognizable retaliation claim against
defendant Hairston, and genuine issues of material fact remain as
to the various elements of this court’s retaliation standard, the
district court erred in granting the defendants’ summary-judgment
motion with respect to defendant Hairston. Furthermore, Hairston
was not entitled to qualified immunity because, as noted above, the
right to be free from retaliation of the sort alleged by Hart was
“clearly established” by the 1980s, see Woods, 60 F.3d at 1164 &
n.12, and defendant Hairston’s conduct, as alleged by Hart, was not
objectively reasonable. See Petta v. Rivera, 143 F.3d 895, 899
5 (5th Cir. 1998); Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).
Accordingly, with respect to Hart’s retaliation claim against
Hairston, we vacate and remand for further proceedings not
inconsistent with this opinion.
Hart did not sufficiently establish the elements of a
retaliation claim with respect to defendants Thomas and Craig.
Their mere involvement in the disciplinary proceedings against him,
without more, does not establish either retaliatory motive or
causation. See Jones, 188 F.3d at 324-25. We affirm the granting
of summary judgment with respect to defendants Thomas and Craig.
To the extent that the district court’s order denied Hart’s
own motion for partial summary judgment, we likewise affirm, in
that genuine issues of material fact remain.
VACATED AND REMANDED IN PART; AFFIRMED IN PART.