Morris v. Powell, et al

1Pursuant to 5TH CIRCUIT RULE 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
1
United States Court of Appeals
Fifth Circuit
F I L E D
November 18, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 03-40600
_____________________
DAVID GENE MORRIS,
Plaintiff - Appellee,
versus
CHRISTY POWELL, ET AL.,
Defendants,
CHRISTY POWELL; CHARLES POWELL, Major; ANDY MASSINGILL, Warden,
Defendants - Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas, Texarkana
District Court Cause No. 99-CV-263
_________________________________________________________________
Before REAVLEY, BENAVIDES and PRADO, Circuit Judges.
PER CURIAM.1
David Gene Morris sued several employees of the Texas
Department of Criminal Justice (TDCJ) for retaliation. In the
district court, the TDCJ employees moved for summary judgment
based on qualified immunity. The district court determined that
material issues of fact precluded summary judgment and denied the
motion. The TDCJ employees appeal the district court’s denial of

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2See Johnson v. Sawyer, 120 F.3d 1307, 1316 (5th Cir. 1997)
(explaining that this court can affirm a summary judgment on
2
summary judgment.
In this appeal, the Office of the Texas Attorney General
(AG), acting on behalf of the TDCJ employees, asks this court to
establish a new rule of law. Specifically, the Texas AG asks
this court to require an inmate bringing a retaliation claim to
show that he suffered a more than de minimis adverse act. The
Texas AG argues that this requirement would avoid endless
litigation, assure that prisoners do not insulate themselves from
disciplinary action by claiming retaliation, and avoid judicial
involvment in minor disciplinary acts. The Texas AG maintains
that requiring a more than de minimis retaliatory act would help
the courts screen inmate retaliation cases.
The Texas AG advanced this argument twice before the
district court—first in its motion for summary judgment and again
in its motion for reconsideration—but the district court did not
address the argument. Because the de minimis argument was not
the Texas AG’s main argument before the district court, this
court cannot determine whether the district court declined to
address the argument or whether the district court failed to
address the argument through inadvertence. The district court,
nevertheless, deserves the first consideration of the argument.
Although this court will affirm a judgment on a ground not relied
on by the district court,2 this court does not ordinarily reverse

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grounds not relied on by the district court if those grounds were
asserted in that court by the movant).
3
a district court on a ground it did not rely upon. Reversing on
an unrelied-upon basis deprives the district court of the
opportunity to squarely address the issue and to develop a more
complete record on the disputed matter. For that reason, this
court REMANDS this case to the district court for consideration
of this argument. Because the Texas AG’s remaining arguments
rely on fact questions over which this court lacks jurisdiction,
the court DISMISSES the appeal to the extent that the appeal is
based on those fact questions.
APPEAL DISMISSED; CASE REMANDED.

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