Morris v. Powell, et al

United States Court of Appeals
Fifth Circuit
F I L E D
May 15, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-40578
Summary Calendar
_______________
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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Inmate David Morris sued prison officials
under 42 U.S.C. § 1983 for alleged retaliation
against himfor exercising his First Amendment
right to use the prison grievance system. The
district court determined that prisoners bring-
ing such claims must allege more than a de
minimis retaliatory act to establish a con-
stitutional violation. Finding that the retalia-
tion alleged by Morris did not pass this bar, the
court granted the defendants’ motion for
summary judgment, from which Morris ap-
peals. Because we agree with the district
court’s choice of legal standards but disagree
in part with its application of the law to the
facts, we vacate and remand.

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I.
On November 25, 1997, Morris submitted
grievances to prison authorities concerning the
way defendant Christy Powell ran the Telford
Unit’s commissary, where Morris was assigned
to work. On December 1 of the same year,
Morris was moved from the commissary to the
kitchen. He worked in the kitchen’s pot room
on December 5 and was moved from the kitch-
en to the butcher shop on December 8. In
May 1998 he was transferred from the Telford
Unit to the Terrell Unit, where he presently
resides.
Morris alleges that prison officials at the
Telford Unit assigned him to a more taxing job
in the kitchen in retaliation for the exercise of
his constitutional right to file complaints
against Powell. He also claims that his transfer
to the allegedly less desirable Terrell Unit was
an act of retaliation.
The defendants’ first motion for summary
judgment was denied on March 28, 2003. The
district court found that disputed issues of ma-
terial fact existed as to whether the transfer of
Morris to different work assignments, and
eventually to another prison, was a retaliatory
response to his complaints against Powell.
The defendants’ motion for reconsideration
was denied, and an appeal to this court fol-
lowed. We remanded for consideration of
whether an inmate’s retaliation claim must
allege more than a de minimis adverse act.
Morris v. Powell, 114 Fed. Appx. 629 (5th
Cir. 2004).
On remand, the district court held, as a
matter of first impression in this circuit, that an
inmate must allege more than a de minimis
retaliatory act to proceed with a claim for re-
taliation. The court further determined, with-
out discussion, that the retaliation alleged by
Morris was de minimis, so the court dismissed
the claim.
Morris contends that this court should not
adopt the de minimis standard. In the altern-
ative, he argues that even if de minimis retal-
iatory acts are deemed insufficient to support
a § 1983 claim for retaliation, the retaliation he
alleges was not de minimis.
II.
We review a grant of summary judgment de
novo, applying the same standard as does a
district court. BellSouth Telecommunications,
Inc. v. Johnson Bros. Group, 106 F.3d 119,
122 (5th Cir.1997). Summary judgment is
appropriate when the record demonstrates that
there is no issue of material fact and that the
moving party is entitled to judgment as a
matter of law. Martinez v. Bally’s La., Inc.,
224 F.3d 474, 476 (5th Cir. 2001).
A prison official may not retaliate against or
harass an inmate for complaining through
proper channels about a guard’s misconduct.
Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.
1995). “To prevail on a claim of retaliation, a
prisoner must establish (1) a specific constitu-
tional right, (2) the defendant’s intent to re-
taliate against the prisoner for his or her exer-
cise of that right, (3) a retaliatory adverse act,
and (4) causation.” McDonald v. Steward,
132 F.3d 225, 231 (5th Cir. 1998).
We must interpret the third prong of this
test. The state argues that the district court
correctly determined that acts of retaliation so
inconsequential as to be considered de minimis
do not satisfy the “retaliatory adverse act”
requirement. Morris argues that any act of re-
taliation, however minor, is an actionable vio-
lation of an inmate’s constitutional rights. He
cites Lewis v. Woods, 848 F.2d 649, 651 (5th
Cir. 1988), for the proposition that a violation
of constitutional rights is never de minimis.

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The question, however, is not whether the vio-
lation of Morris’s constitutional rights was de
minimis, but whether any violation occurred at
all. To establish a constitutional violation, an
inmate must show that he suffered a qualifying
adverse retaliatory act. If the retaliation al-
leged by Morris does not pass this bar, he has
suffered no constitutional injury.
Whether an allegation of de minimis retal-
iatory acts can support a retaliation claim is an
issue of first impression in this court. The ap-
proach we have taken in deciding past inmate
retaliation claims is, however, instructive. We
have never upheld a retaliation claim that al-
leges only inconsequential, or de minimis, re-
taliatory acts by prison officials. Rather, our
precedent is consistent with the proposition
that an inmate must allege more than de min-
imis retaliation to proceed with such a claim.
In Jones v. Greninger, 188 F.3d 322, 325-
26 (5th Cir. 1999), we affirmed the dismissal
of a claim alleging that the inmate had been re-
stricted to five hours a week in the law library
in retaliation for filing grievances. Although
retaliatory intent was properly alleged, the
inmate’s claim failed because the retaliatory
adverse acts did not rise to the level of a
constitutional violation. Similarly, in Gibbs v.
King, 779 F.2d 1040, 1046 (5th Cir. 1986),
we upheld a dismissal, writing that “a single
incident, involving a minor sanction, is insuf-
ficient to prove [retaliatory] harassment.”
Thus, without explicitly applying a de minimis
test, this court has refused to recognize retalia-
tion claims based only on allegations of insig-
nificant retaliatory acts.1
When confronted with more serious alle-
gations of retaliation, however, we have not
hesitated to recognize the legitimacy of an in-
mate’s claim. In Hart v. Hairston, 343 F.3d
762, 764 (5th Cir. 2003), we reversed sum-
mary judgment dismissing a retaliation claim
where the alleged adverse act was twenty-
seven days of commissary and cell restrictions.
Although we declined to adopt such a test, we
noted that “the penalties imposed on Hart do
not qualify as ‘de minimis’ under various
standards cited by other circuits.”
Likewise, in Parker v. Carpenter, 978 F.2d
190, 192-93 (5th Cir. 1992), we held that re-
taliation in the form of transferring the inmate
to a more violent section of the prison was
sufficient to support a retaliation claim. In
Jackson v. Cain, 864 F.2d 1235, 1248 (5th
Cir. 1989), we overturned summary judgment
where an inmate alleged that he had been
transferred to a less desirable job within the
prison in retaliation for filing grievances. The
inmate, who had worked in a light labor job,
was moved for forty-seven days to a job that
subjected him to extreme hardship and serious
health risks.2
1 In the context of claims by state employees
alleging retaliation for the exercise of First Amend-
ment rights, we require “more than a trivial [retal-
(continued...)
1(...continued)
iatory] act to establish constitutional harm.” Pierce
v. Tex. Dep’t of Crim. Justice, Institutional Div.,
37 F.3d 1146, 1149 n.1 (5th Cir. 1994). Although
the law on inmates’ retaliation claims follows a
different line of cases, we note that to uphold
inmate retaliation claims in cases where only trivial
retaliation is alleged, as Morris urges, would
effectively elevate the constitutional rights of
inmates over those of government employees.
2 The Jackson court described the job to which
the inmate in that case was moved in retaliation for
writing grievance letters:
(continued...)

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4
As we acknowledged in Hart, other circuits
have provided persuasive guidance on the
quantum of retaliation necessary to support an
inmate’s § 1983 claim.3 The District of Col-
umbia Circuit has held that an inmate’s retali-
ation claim must allege adverse acts that
“would chill or silence a person of ordinary
firmness from future First Amendment activi-
ties.” Crawford-El v. Britton, 93 F.3d 813,
826 (D.C. Cir. 1996) (en banc), vacated on
other grounds, 523 U.S. 574 (1998). That
reasoning was left undisturbed when the Su-
preme Court vacated the decision. The Court
wrote: “The reason why such retaliation (for
the exercise of First Amendment rights) of-
fends the Constitution is that it threatens to
inhibit exercise of the protected right.”
Crawford-El v. Britton, 523 U.S. 574, 588
n.10 (1998). See also Hartman v. Moore,
2006 WL 1082843, at *4 (U.S. Apr. 26,
2006). The Sixth Circuit later held that the
D.C. Circuit’s Crawford-El standard “is the
appropriate standard by which to determine
what type of action is sufficiently adverse to be
cognizable in a retaliation claim under §
1983.” Thaddeus-X v. Blatter, 175 F.3d 378,
397 (6th Cir. 1999).
In adopting this standard, the Sixth and
D.C. Circuits based their reasoning on the
Seventh Circuit’s rejection, in the employment
retaliation context, of de minimis retaliation
claims: “It would trivialize the First Amend-
ment to hold that harassment for exercising the
right of free speech was always actionable no
matter how unlikely to deter a person of ordi-
nary firmness from that exercise . . . .” Bart v.
Telford, 677 F.2d 622, 625 (7th Cir. 1982).
The Second Circuit has employed a similar de
minimis standard, asking whether the retalia-
tion alleged by an inmate rose to the level of
that which would deter the exercise of a con-
stitutional right. See Davidson v. Chestnut,
193 F.3d 144, 149-50 (2d Cir. 1999).
The de minimis standard enunciated by our
sister circuits is consistent with this court’s
precedent. The standard achieves the proper
balance between the need to recognize valid
retaliation claims and the danger of “federal
courts embroil[ing] themselves in every disci-
plinary act that occurs in state penal institu-
tions.” Woods, 60 F.3d at 1166. The purpose
of allowing inmate retaliation claims under
§ 1983 is to ensure that prisoners are not un-
dulydiscouraged fromexercising constitution-
al rights. See Crawford-El, 523 U.S. at 588
n.10. Some acts, though maybe motivated by
retaliatory intent, are so de minimis that they
would not deter the ordinary person from fur-
ther exercise of his rights. Such acts do not
rise to the level of constitutional violations and
cannot form the basis of a §1983 claim.
We must explain, however, that this thresh-
2(...continued)
He was required to work in a barn shoveling
unshucked corn that was over a year old and
contaminated with rats’ nests, insects, and clods
of white, sandy dust. He had to work unmasked
while covered with corn dust in addition to
pushing an iron wagon full of corn approxi-
mately 80 feet ten times a day throughout the
47 day period. His nose bled, his hair fell out,
and his face broke out in sores. He was also
required to mow grass for two hours a day with
a sub-standard push lawn mower. He claims he
was the only member of the crew required to do
the mowing. After roughly a month of this
treatment Jackson claims Terry Thompson told
him on June 20th that if he would stop writing
letters to Col. Donald McNeil they would
rescind this punishment.
Jackson, 864 F.2d at 1239.
3 See Hart, 343 F.3d at 764 (citing Thaddeus-X
v. Blatter, 175 F.3d 378, 396 (6th Cir.1999)).

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old is intended to weed out only inconsequen-
tial actions and is not a means to excuse more
serious retaliatory acts by prison officials. Re-
taliation against a prisoner is actionable only if
it is capable of deterring a person of ordinary
firmness from further exercising his con-
stitutional rights.
III.
With this standard in mind, we turn to the
specific retaliation alleged by Morris to deter-
mine whether the actions of the Telford Unit
officials would have deterred a person of or-
dinary firmness from exercising his First
Amendment right to file grievances against
prison officials. Because this is a review of
summary judgment against Morris, we are
bound to view the pleadings and evidence in
the light most favorable to Morris. See Smith
v. Xerox Corp., 866 F.2d 135, 137 (5th Cir.
1989).
Morris alleges two distinct instances of re-
taliation. First, he claims he was moved to a
less desirable job within the prison. Second,
he avers that his transfer to the Terrell Unit
was retaliation. According to Morris, it is
common knowledge that the Terrell Unit is a
harsher environment for prisoners than is the
Telford Unit. When the district court first
ruled on summary judgment motions, it denied
summary judgment because issues of material
fact existed regarding both of Morris’s claims.
After this court asked the district court to
consider the de minimis issue, that court
granted summary judgment when it found that
neither of Morris’s retaliation claims, as al-
leged, meets the de minimis threshold.
On the job-transfer claim, the district court
correctly determined that Morris’s allegations
do not rise to the level of actionable retalia-
tion. The summary judgment evidence indi-
cates that although Morris’s official job classi-
fication was switched from the commissary to
the kitchen for about six weeks, he was actu-
ally made to work in the kitchen for only a
week at most. He spent just one day in the
“pot room,” which is evidently an unpleasant
work station. He was then moved to the
butcher shop, and he raises no complaints
about that job.
Nothing in this sequence of events could
support an inference that Morris’s job transfers
would have deterred him from the exercise of
the right to file grievances. The transfers may
have had a retaliatory motive, and Morris may
have experienced discomfort for a few days as
a result, but there is no evidence that the job
transfers were more than de minimis. The
standard adopted herein is designed to dis-
courage precisely such claims of inconsequen-
tial retaliation. The district court did not err in
granting summary judgment on Morris’s job
transfer claims.
In its order granting summary judgment, the
district court did not specifically mention Mor-
ris’s second claim, that he was transferred to
an inferior prison in retaliation for filing griev-
ances. Because the court granted summary
judgment based on its adoption of the de
minimis standard, we must assume it thought
the prison transfer claim was de minimis.
We disagree. Transfer to a more dangerous
prison is a much more serious retaliatory act
than what has been considered de minimis in
other circuits. We have held that transfer to a
more dangerous section of the same prison is
a sufficiently adverse retaliatory act to support
a § 1983 claim. See Parker v. Carpenter, 978
F.2d 190, 192-93 (5th Cir. 1992). There is no
doubt that transfer to a more dangerous prison
as a penalty for the exercise of constitutional
rights has the potential to deter the inmate
from the future exercise of those rights. Ac-

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cordingly, Morris’s prison transfer claimmeets
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.

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